author: SHARPE, Justice.

text:
    Lester W. KETTLE v. John SMIRCICH.
    No. 280.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 25, 1967.

      L. Taylor Zimmerman, of Bonilla, De-Pena, Reed & Bonilla, Corpus Christi, for appellant.
    Guy Allison, Corpus Christi, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial that Lester W. Kettle, appellant, plaintiff below, take nothing by his suit against John Smircich, appellee, defendant below.

Plaintiff sued for damages because of personal injuries suffered by him in a motor vehicle accident which occurred on June 5, 1965 in Aransas Pass, Texas. Plaintiff was riding in an automobile owned and then being operated by Mr. Curtis Lee Boykin, which was pulling a trailer and small boat. The Boykin vehicle was travelling in a southerly direction and the defendant’s vehicle in a northerly direction on State Highway 35 just prior to the collision between them.

The jury verdict in response to the special issues submitted was in substance as follows: (1) defendant did not fail to keep a proper lookout, (2) not answered (proximate cause), (3) defendant was not operating his vehicle at an excessive rate of speed, (4) not answered (proximate cause), (5) defendant did not operate his vehicle across the center line into his left, or plaintiff’s lane of traffic at the time of the collision, (6) not answered (negligence), (7) not answered (proximate cause), (8) defendant did not go to sleep immediately prior to the collision, (9) not answered (negligence), (10) not answered (proximate cause), (11) there was no issue so numbered, (12) at or immediately prior to the collision the vehicle driven by Curtis Boykin was partially in the north bound or defendant’s lane of traffic, (13) which was the sole proximate cause of the collision, (14) defendant was acting under an emergency at the time of the accident, (15) defendant acted as an ordinary prudent person would have under the same or similar circumstances. In response to issue No. 16 inquiring concerning an amount for medical and hospital services which would reasonably and necessarily be incurred by plaintiff in the future, the jury answered $10,000.00. In response to issue No. 17, inquiring concerning an amount which would reasonably compensate plaintiff for various other elements of damage, including past and future physical pain and mental anguish, loss of earnings and diminished earning capacity, as a result of the accident in question, the jury answered $15,000.00. The parties stipulated the amount of past medical expenses.

Appellant asserts four points of error. It is apparent to us that points 2, 3, and 4 do not present reversible error for the reasons hereinafter stated, and this appeal turns upon point number 1.

Appellant’s point 1 asserts in substance that the trial court erred in permitting ap-pellee’s witness John Bentley to give opinion evidence as an expert because he was not qualified to do so and that he could not give such opinion or make calculations approximately one year after the accident based upon photographs in evidence and the assumption of facts not in evidence.

Appellant’s contention that the trial court erred in permitting Bentley to testify as an expert witness over appellant’s objection that he was not shown to be qualified is not well taken. The witness testified in substance that he was an accident consultant; that he had previously served six years, until 1964, with the Texas Department of Public Safety as a highway patrolman and as an investigator, having been designated by the Department as an expert for reconstruction of accidents and as a witness on the trial of cases; that he went to school while in the Department, took police courses in mathematics and in connection with investigation and reconstruction of accidents; that he had formerly served as a Deputy Sheriff; that he was a high school graduate; that while serving in the military service for four and a half years he had technical schooling involving mathematics, electronic theory and mechanics; that the mathematics studies involved equations, vectors and quadrids; that vectors are important in accident analysis, particularly where two vehicles, each with its own course of travel and force conflict and the different forces act against each other; that he was able to calculate and express the kinetic energies for formulas and apply them to vehicles in motion; that as an accident consultant he goes into the field of reconstruction of accidents, the physical damage and physical evidence and the scene involved; that he applies the principles of physics and mathematics in connection with his work; that he has had experience in interpreting pictures, gouges or marks, such as were involved in this case; that while with the Department of Public Safety he investigated, either by himself or with other persons, about 240-250 accidents per year; that on secondary schooling in the Department he had experience with evaluating physical forces, energy, applying kinetic energy formulas, dealing with test skills, reaction time, speed, angles, marks, gouges, and taking pictures; that he studied many controlled tests involving such factors; that he applied his skills to reconstruction of accidents including rotational or broadside tests where cars were rotating or spinning; that in 1965 he reconstructed 47 accidents for trial, and in 1966, up to the time of trial on May 18th, he had reconstructed about 44 accidents; that he was able to apply his knowledge of physics and kinetic energy to the physical facts that are available; that he had gone to the scene of the accident involved in this suit with officer McGary (who had investigated the accident shortly after its occurrence) a week or so before the trial and had studied the photographs of the scene and of the vehicles involved, which photographs were admitted into evidence by stipulation; that he heard the testimony of officer McGary on the trial of this case, and also heard part of the defendant’s testimony. Thereafter, he gave his opinion as to how the accident happened and particularly as to the point of impact. Before he did so, counsel for appellant conducted a voir dire examination of the witness, during which it was developed that he did not have a college degree in physics or mathematics or other subjects and that most of his experience had been practical. At the conclusion of such voir dire examination the trial court overruled appellant’s objection that the witness was not qualified as an expert in traffic, and the witness was allowed to continue his testimony. Among other things, Bentley testified that in his opinion the collision in question occurred in the north bound or defendant’s lane of traffic, and that the Boykin vehicle, in which plaintiff was riding, was on its left or wrong side of the highway. That opinion supported the defendant’s testimony and was contrary to that of Boykin and the plaintiff.

In the case of Mesa Trucking Company v. King, 376 S.W.2d 863, 868, 869 (Tex.Civ.App., Amarillo, 1964, wr. ref., n. r. e.) where the court passed upon objections to expert testimony similar to those made here by appellant, the court said:

“It has been textually stated in Volume 66 A.L.R.2d 1057 that:
“ ‘In a growing number of jurisdictions the courts have held that skilled or expert opinion evidence as to the point of impact or collision is admissible in motor vehicle accident cases upon the ground that a skilled or expert witness can aid the jury in drawing correct inferences from raw and unsorted facts.’
“Also in Volume 2, McCormick and Ray, Texas Law of Evidence, Section 1401, Page 235, it is said:
“ ‘The burden of establishing his qualification naturally rests upon the party offering the alleged expert. Whether the person offered possesses the required qualification is a preliminary question to be determined by the trial judge and should not be left to the jury. In the decision of this question our courts have wisely held that the trial judge has a wide discretion not subject to review in the absence of clear abuse.’
“That same text in the same volume at page 220, Section 1395, states:
“ ‘Furthermore the controlling cases from the Texas Supreme Court do not support any general rule forbidding properly qualified witnesses from giving opinions upon facts which are the ultimate issues in the case. On the contrary it is believed that such opinions are receivable whenever they are likely to be of appreciable aid to the jury in arriving at the correct conclusion.’
“In Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506 (N.R.E.) the court held:
“ ‘It is for the Trial Court to determine if the proposed witness has had sufficient opportunity for observation and experience in line with the subj ect under inquiry to entitle him to give his opinion based upon evidence adduced. When the Trial Court, in the exercise of his sound discretion, has determined this matter, the appellate courts will not disturb that decision in the absence of an abuse of that discretion. Montgomery Ward & Co. v. Levy, Tex.Civ.App., 136 S.W.2d 663.’
“Therefore, under this record and the authorities cited we do not feel justified in saying the trial court abused his discretion in permitting the testimony of Olan Heath.”

We believe that the rules stated and the authorities cited in Mesa are applicable in the instant case. The trial court, after hearing the testimony as to the qualifications of the witness Bentley on direct and voir dire examination, concluded that he had the educational background and practical experience concerning the subject under inquiry to entitle him to express an expert opinion. We cannot disturb that ruling in the absence of an abuse of that discretion, and we find none here. Mesa Trucking Co. v. King, supra; Bolstad v. Egleson, 326 S.W.2d 506 (Tex.Civ.App., Houston, 1959); and see Phoenix Refining Co. v. Powell, 251 S.W.2d 892 (Tex.Civ.App., San Antonio, 1952, opinion per Norvell, J. wr. ref., n. r. e.). In each of the cited cases, the expert witness was permitted to use photographs of the scene of the accident and the vehicles involved as part of the basis for the opinions given. We overrule appellant’s contention concerning the use of photographs admitted in evidence in the instant case. The jury could have accepted or rejected Bentley’s testimony and opinion evidence. Counsel for defendant and the trial court made it clear that opinion evidence was being offered and that it was for the jury to ultimately determine the facts.

Appellant’s remaining argument under his point No. 1 is that the opinions of the witness Bentley were, in part, based upon the assumption of facts not in evidence, particularly the weights of the vehicles and the boat which was being towed by the Boykin car. The witness Bentley, testified without objection that the weight of the Chrysler automobile, including the driver, was 4550 pounds and that the registered weight of the 1950 Mercury was 3500 pounds. He estimated the weight of the boat and trailer to be 1000 pounds. He later testified that he had not actually seen either of the vehicles or the boat and trailer, but had examined photographs of them taken shortly after the accident. We do not find that any proper objection was made concerning the weights of the cars, boat and trailer, as testified to by Bentley. Nor was there proper objection or motion to strike his opinion as to various matters because of the testimony relating to such weights. Appellant argues here that he was allowed to have a continuing objection to the testimony of Bentley. The record reflects that shortly after the voir dire examination of Bentley by counsel for appellant, and after the trial court ruled that he could testify as an expert, counsel for appellant made the following request:

“Your Honor, just for the record, I would like a continuing objection that he isn’t an expert.”

The court responded by saying:

“All right, you can have that as a running objection to all his testimony.”

It thus appears that by this objection, and others, appellant properly preserved his contention that Bentley was not shown to be qualified to testify as an expert, which contention we have overruled. However, appellant’s position concerning the alleged assumption of facts not in evidence and the same being used as a basis or partial basis for Bentley’s opinion evidence is not well taken and objections on such basis were waived. Seymour v. Texas & N. O. R. Co., 209 S.W.2d 814 (Tex.Civ.App., El Paso, 1947, writ ref.). Aside from this, it appears that the witness was probably qualified to give substantially reliable estimates of the weights involved, and that harmful error is not shown. Although Bentley testified that he had read the deposition of the defendant, there is no showing that he used any of the matters contained therein in connection with his testimony. Appellant’s point 1 is overruled.

Appellant’s points 2, 3 and 4 are all multifarious. However, there are additional reasons why they do not present reversible error.

Appellant’s point No. 2 complains of the submission of special issues 12 and 13 over his objections. The point is not well taken for, the reason that appellant’s objections to the charge of the court, including those made to special issues 12 and 13, were not properly preserved for review. The record reflects that prior to submission of the case to the jury counsel for appellant dictated several objections to the charge of the court, later transcribed by the court reporter and included in the statement of facts, which was approved by counsel but not the trial judge. There is no showing that such transcribed objections were ever presented to the tral judge so that he could endorse his ruling and official signature thereon as is required by Rule 272, Texas Rules of Civil Procedure. See Big Three Welding Equipment Company v. Roberts, 399 S.W.2d 912 (Tex.Civ.App., Corpus Christi, 1966, wr. ref., n. r. e.); Maryland Casualty Co. v. Golden Jersey Creamery, 389 S.W.2d 701 (Tex.Civ.App., Corpus Christi, 1965, wr. ref., n. r. e.); Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App., Corpus Christi, 1964, wr. ref., n. r. e.). We cannot consider appellant’s point 2 involving the alleged objections to the charge of the court under these circumstances. In addition, the findings on special issues 12 and 13, which involve appellee’s defensive issues, are immaterial to disposition of this appeal in the absence of liability having been established against appellee. Appellant’s point 2 is overruled.

Appellant’s point No. 3 asserts in substance that the submission of special issues 14 and 15 (the emergency issues) was improper and that they did not contain proper elements as shown by his objections to them; and that the evidence was legally and factually insufficient to support their submission. The point is not well taken for the same reasons given in connection with point No. 2. Under these conditions it is not necessary to discuss the absence of a related special issue concerning sole proximate cause. See Missouri Pacific Railroad Company v. Young, 403 S.W.2d 898 (Tex.Civ.App., Corpus Christi, 1966, n. w. h.). Appellant’s point 3 is overruled.

Appellant’s point No. 4 asserts that the jury answers to twelve special issues (five of which were conditionally submitted and not actually answered) are against the overwhelming and great weight of the evidence. The point is multifarious and will not be considered by us. See Johnson-Sampson Const. Co. v. W. & W. Waterproofing Co., 274 S.W.2d 926 (Tex.Civ.App., Amarillo, 1953, wr. ref., n. r. e.); Appellate Procedure in Texas, Section 12.4(4). In addition, there was no proper ground of appellant’s motion for new trial which would serve as a predicate for review of the point, the single ground asserted in such motion being too broad. See Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 891 (1960); Big Three Welding Equipment Company v. Roberts, 399 S.W.2d 912 (Tex.Civ.App., Corpus Christi, 1966, wr. ref., n. r. e.).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Leo BOUNDS et ux. et al., Appellants, v. D. H. TAYLOR et ux., Appellees.
    No. 7793.
    Court of Civil Appeals of Texas. Texarkana.
    March 28, 1967.
    Rehearing Denied May 2, 1967.

      John D. Raffaelli, Raffaelli, Keeney & Pesek, Bun L. Hutchinson, Atchley, Russell, Hutchinson & Waldrop, Harry Friedman, Harkness & Friedman, Texarkana, for appellants.
    Wm. V. Brown, Jr., Brown & Brown, Texarkana, for appellees.
   FANNING, Justice.

This suit involves title to a long, narrow strip of land, 17.9 feet wide on the East side on North State Line in the City of Texarkana, Bowie County, Texas, extending West 583.34 feet, then extending South 19.4 feet, and then extending N. 89 deg. 51 East 583.34 feet to State Line and then going North 17.9 feet along State Line. The strip contains about 0.25 acres, more or less, and a portion of it is subject to certain road right of way purposes for U.S. Highway 71.

Cargile Motor Company, a partnership, as plaintiff, sued D. H. Taylor and wife, Fannie Taylor, in trespass to try title for the strip of land in question, and in the alternative sued Leo Bounds and wife, their vendors to the tract in dispute on their warranty, seeking a monetary judgment against Bounds and wife in the event their title to the strip sued for failed. (Bounds and wife by Warranty Deed dated March 25, 1965, had conveyed to Cargile a 5.622 acre tract, more or less, and excepting a road right of way of .290 acres, a part of U.S. Highway 71. This deed was for $75,000.00 consideration and included the long, narrow strip of land in controversy here).

Taylor and wife answered the suit by a plea of not guilty and plead the 10, 5 and 3 year statutes of limitations. Bounds and wife filed pleadings, admitting the sale of the strip and other property to Cargile Motor Company, denied the pleadings of the Taylors, and pleaded in effect that Bounds and wife conveyed good title to the strip to Cargile.

Trial was to the court without the aid of a jury. The trial court, after hearing the evidence adduced, rendered judgment in favor of defendants Taylor and wife for the title and possession of the strip of land in dispute. The trial court further rendered judgment in favor of Cargile against defendants Bounds and wife for the sum of $3,334.50 for the value of the strip conveyed by Bounds and wife to Cargile to which the trial court held that title had failed. Cargile and Bounds and wife have appealed.

The trial court filed Findings of Fact as follows:

“FINDINGS OF FACT
“1. I find that the plaintiff, Cargile Motor Company, and Leo Bounds had record title from the State of Texas to Cargile Motor Company, to the property which I designate as Tract One, which is described in paragraph 2, of the Plaintiff’s Original Petition.
“2. I find that the defendant, D. H. Taylor, had record title from the State of Texas to himself to the property, which I designate as Tract Two,' which is described in Item Ten (10) of the defendants, Taylors’ Abstract of Title.
“3. I find that T. J. Hobgood was the common source of title to Tracts One and Two, and that the Deed to plaintiff, Cargile Motor Company’s predecessors in title from T. J. Hobgood was given before the Deed to defendants, D. H. Taylor’s predecessor in Title.
“4. I find that the tract of land described in Paragraph 3, of the Plaintiff’s Original Petition, and as described in Paragraph 3 of the defendants, Taylors’ Answer, which is the strip of land herein in controversy, which is herein designated as Tract ‘A’, was embraced in the description of the property, Tract No. One (1), from its inception, and was also embraced in the description of Tract No. Two (2) from its inception.
“5. I find that the Common Source, T. J. Hobgood, from his various conveyances to the various grantees, conveyed 31.2 acres out of an original 30-acre tract, which he acquired November 24, 1887, by Deed from L. C. DeMorse to T. J. Hobgood, which Deed was recorded in Volume Y, Page 325, of the Deed Records of Bowie County, Texas, and which description is restated in the Deed from A. C. Hobgood to T. J. Hobgood, dated February 4, 1889, and recorded in Volume 2, page 295, of the Deed Records of Bowie County, Texas.
“6. I find that the defendant, Leo Bounds, the predecessor in title to Tract One, had a fence on the North side, or North of the North Side of Tract ‘A’, which was embraced in the description of his Tract One, and that such fence was there for many years prior to February 1, 1955, and that Leo Bounds and wife, owned Tract One, which included Tract ‘A’, on February 1, 1955.
“7. I find that D. H. Taylor and wife, Fannie Taylor, defendants herein, perfected complete record title in themselves to all of Tract Two, which included Tract ‘A’, on November 29, 1954, when the Warranty Deed from Ellie Taylor Word, a widow, conveyed said property Tract Two, to Don H. Taylor and wife, Fannie Taylor, which Deed was recorded December 2, 1954, in Volume 318, Page 323, of the Deed Records of Bowie County, Texas.
“8. I find that immediately after D. H. Taylor acquired complete record title, he engaged Mclver & Dupuy, Inc., Surveyors, to survey the property embraced in their Deeds, designated Tract Two which included Tract ‘A’, and that such survey was made, corners set, and the survey delivered February 1, 1955 to February 15, 1955.
“9. I find that D. H. Taylor moved the fence from the North side of Tract ‘A’, (or some further from the North side of Tract “A”) to the South Boundary Line of Tract ‘A’ around the first day of February, 1955 to the 15th day of February, 1955.
“10. I find that D. H. Taylor and wife, Fannie Taylor, lived on the premises designated Tract Two, which included Tract ‘A’, from February 15, 1955, continuously, open and notoriously, using and enjoying the same as their homestead until on or about September 1, 1965, when they were served with citation in this case.
“11. I find that Leo Bounds talked to D. H. Taylor in the year 1959, regarding the purchase of D. H. Taylor’s property, and that Leo Bounds mentioned that the fence was further South than he remembered, but that he did nothing about it, and made no demand that the fence be moved.
“12. I find that D. H. Taylor had a cow on his property and that the fence on the South side of Tract ‘A’ turned the cow and did not break.
“13. I find that the fence erected by D. H. Taylor used one tree growing, the picture of which was introduced, and that the tree grew over and around the three strands of barbed wire attached to the tree, and that the fence had been attached to the tree for at least ten (10) years, prior to March 15, 1965.
“14. I find that D. H. Taylor and wife, Fannie Taylor, used and enjoyed the property designated as Tract Two and which included Tract ‘A’, and appropriated it to the use and purpose of their yard, which was the proper use and purpose for which the said Tract ‘A’ was adapted from February 15, 1955, to September 1, 1965, and that D. H. Taylor cut and mowed the grass and weeds of Tract ‘A’ in the same fashion and manner as he mowed the other acreage not immediately adjacent to his house.
“15. I find that D. H. Taylor maintained the fence along the South boundary line of the property designated as'Tract ‘A’, from February 15, 1955 to September 1, 1965.
“16. I find that D. H. Taylor and wife, Fannie Taylor, claimed the property designated as Tract ‘A’, as a part of the property designated as Tract Two, under the color of their deeds, paying taxes each year as they accrued, with uninterrupted possession from February 15, 1955 to September 1, 1965, living and residing upon the same as their homestead.
“17. I find that D. H. Taylor and wife, Fannie Taylor, believed that the strip of land designated as Tract ‘A’ was included in their deed as recorded in Volume 13, page 155, Deed Records of Bowie County, Texas (to which D. H. Taylor was an heir to part of said property); Deed as recorded in Volume 306, page 7, Deed Records of Bowie County, Texas, (which purchased out a sister); and deed as recorded in Volume 318, page 323 of the Deed Records of Bowie County, Texas, (which was the deed from another sister, Elbe Taylor Word, dated November 29, 1954).
“18. I find that the said D. H. Taylor and wife, Fannie Taylor, had no adverse claim presented to them from February 15, 1955, to September 1, 1965, when the present suit was filed against them by Cargile Motor Company, and that they used, claimed, enjoyed and resided on said property designated as Tract Two, which included the property herein in dispute, designated as Tract ‘A’, and that D. H. Taylor and wife, Fannie Taylor, did not do any acts to indicate they were not claiming Tract ‘A’ as their own.”

The trial court in his conclusions of law concluded to the effect that Taylor and wife had record title to Tract 2, which included Tract “A”, the strip in dispute; that Cargile and Bounds and wife had record title in Tract 1, which included Tract “A”, the strip in dispute; that Taylor and wife perfected title by adverse possession to Tract “A”, the strip in dispute, against Bounds and wife under the 10 year and under the 3 year statute of limitations; that title given by Bounds and wife to Car-gile failed as to Tract “A”, the strip in dispute, and that Cargile was entitled to recover $3,334.50 as damages against Bounds and wife.

Cargile’s brief is short. It adopts the brief of appellants Bounds and wife, and prays that the judgment of the trial court be reversed and that judgment be entered finding that the title to the strip in controversy be vested in Cargile and alternatively that should the judgment of the trial court be affirmed with respect to the title to the tract in controversy being in appel-lees Taylor and wife, then that portion of the trial court judgment in favor of Cargile against Bounds and wife be affirmed.

Appellants by their points 1, 2, and 3 contend to the effect that the trial court erred in finding that the disputed tract was embraced within the description of the tract owned by appellees Taylor and wife, and in finding and concluding that Taylor and wife had record title to the disputed strip or tract.

T. J. Hobgood was the common source of title of all parties involved herein. In 1887 Hobgood became the owner of the south 30 acres of a tract originally consisting of 70 acres, in the Willis Oldham Survey in Bowie County, Texas. Thereafter Hobgood sold the 30 acres by four separate conveyances as follows: (1) On March 21, 1889, Hobgood conveyed to Peter Ivey a 7¾o acre tract running North and South 210 varas and East and West 210 varas in the S.E. corner of the thirty acres; (2) On November 18, 1889, Hobgood conveyed to J. J. J. Farrell a tract described as containing five acres and running North and South 373½ feet and East and West 583.3 feet. This tract of land lies immediately North of the Ivey tract; (3) On July 22, 1890, Hobgood conveyed to Mrs. S. F. McCright a tract of land in the S.W. corner of the thirty acres, the McCright tract lying west of the Farrell and Ivey tracts; (4) On July 22, 1890, Hobgood conveyed to Mrs. Lou Wilson, the Predecessor in title to appellees Taylors, the North part of the thirty acre tract, with the description of the tract conveyed being as follows:

“All that certain tract or parcel of land situated, lying and being in the County of Bowie and State of Texas, about 2½ miles North from Texarkana, a part of the Headright Survey of Willis Oldham, and described as follows:
“Begming at the N.W. Corner of a tract of 11 acres this day deeded to Mrs. S. F. McCright;
Thence North 123½ vrs. to the S.W. corner of Prewitt’s 40 acre tract;
Thence East with Prewitt’s S.B. line 420 vrs. to State Line;
Thence South with the State line 83®%oo vrs. to the N.E. corner of Far-rel’s 5 acre tract;
Thence West with said Farrel’s N.B. line 210 vrs. to his N.W. corner;
Thence South 379%oo vrs. to Mrs. Mc-Cright’s N.E. corner;
Thence West with Mrs. McCright’s N.B. line to the beginning, containing 7⅜ acres, more or less.”

Subsequent deeds in the Taylor chain of title show the South call to be “Thence South with the State Line 856%oo vrs. to the N.E. corner of Farrel’s 5 acre tract”, and throughout the trial the South call was referred to as 85®%oo varas. The location of the four tracts next above referred to are correctly shown on Plaintiff’s Exhibit No. 40.

Immediately north of the Lou Wilson tract was the north 40 acres of the original 70 acre tract above referred to, which was at that time known as the R. F. Pruitt tract. At the time of the trial it was known as the Brown tract.

The dispute in question arose by reason of the fact that the North-South line on the East side of the Lou Wilson tract (as described in the deed from Lou Wilson to W. H. Taylor (father of appellee Taylor) called for a distance of 85®%oo varas extending from the S.E. corner of the Pruitt (now Brown) tract “to the N.E. corner of Farrel’s 5 acre tract.”

On the ground the distance from Pruitt’s (Mrs. Brown’s) S.E. corner to the N.E. corner of the J. J. J. Farrell tract is 17 feet 9 inches less than 85®%oo vrs. as called for in the deed to W. H. Taylor.

On March 25, 1965, appellants Bounds and wife were the owners of the J. J. J. Farrell tract and the Peter Ivey tract. On that date Bounds and wife conveyed to appellant Cargile 5.62 acres of land extending from the north line of the J. J. J. Farrell tract to the South.

W. H. Taylor and wife died intestate. D. H. Taylor was their son. D. H. Taylor in 1954 purchased from the other Taylor heirs the remaining interests in the W. H. Taylor tract. Each of the deeds, in appel-lee Taylor’s chain of title, other than the Wilson deed (sometimes describing it as 7%ths of land, rather than 7%ths acres) contained a South call for a distance of 85.6 vrs. rather than 83.6 vrs., and in each of said other deeds the description was the same with the reference on the East Line, and the South Line was always to the N.E. corner of the Farrell tract and with the North boundary line of the Farrell tract to its N.W. corner.

We think that the tract conveyed to Lou Wilson, and thereafter to the Taylors by the terms of its description stopped at the N.E. corner of the Farrell tract. The Wilson (now Taylor) tract joined the Farrell (now Cargile) tract on the north.

It is our view that Cargile, as successor in title by conveyances from Bounds and Bounds’ predecessors who held the Farrell title, is the record owner of the land up to the north boundary of the Farrell 5 acre tract for the following reasons:

(1) The deed from the common source of title to Farrell from Hobgood was a prior conveyance to the deed from Hobgood to Wilson, and the deed to Farrell was recorded prior to Wilson’s deed.

(2) Under the rules of construction as to comparative dignity of calls, the call in the Wilson description “to the N.E. corner of the Farrel tract” controls over the call for distance of 83.6 (or 85.6) varas set out therein. In this connection see Crosby-South Plains Ry. Co. v. Hutchinson, Tex.Civ.App., 204 S.W.2d 643, wr. ref. n. r. e. (1947), wherein it was stated in part as follows:

“that calls in a deed for quantities and for courses and distances must yield to calls for lines, corners and objects fixed upon the ground or capable of definite ascertainment. Woods v. Robinson, 58 Tex. 655; Mosley v. Edds, Tex.Civ.App., 80 S.W.2d 401; Carter v. Texas Company, 126 Tex. 388, 87 S.W.2d 1079; Snyder v. Magnolia Petroleum Co., Tex.Civ.App., 107 S.W.2d 603; Chesson v. LaFlore, Tex.Civ.App., 191 S.W. 745.”

Appellants’ points 1, 2 and 3 are sustained.

Appellants by their points 4, 5, 6, 7 and 8 contend to the effect that the trial court erred in holding that appellees Taylors perfected title to the tract in controversy because the undisputed testimony of appel-lees showed that the controversy was merely a boundary dispute, that the trial court erred in holding that appellees had acquired title by limitation under the ten year and three year statutes of limitation, and that the trial court erred in concluding that the Bounds’ title failed and erred in concluding that Cargile was entitled to recover $3,334.-50 from Bounds. Appellants’ remaining points attack the trial court’s findings of fact Nos. 9, 10, 11, 12, 14, 15, 16, and 18, as being supported by “no evidence” and as being so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

We agree with appellants that the judgment of the trial court can not be sustained under the three year statute of limitations because the deeds that appellees hold under do not describe the strip of land in controversy. See 2 Tex.Jur.2d, “Adverse Possession”, § 145, and authorities cited therein. Appellants’ 6th point is sustained.

After carefully reviewing the entire record we hold that there was ample evidence of probative force to support fact findings Nos. 9, 10, 11, 14, 15, and 18, and that none of such findings were so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants’ points complaining of these findings are respectfully overruled. We think the above fact findings and the entire record in the case constitute a sufficient basis for support of the judgment of the trial court under the 10 year statute of limitations. Fact finding No. 16 is approved except for the words “under the color of their deeds”. Fact finding No. 12 to the effect that the fence in question turned a cow is deemed as not being adequately supported by the evidence; there was evidence that the fence would turn a cow, there was evidence that the Taylors had a cow, but the record does not pinpoint the exact time they had the cow and the record does not affirmatively show that the fence did actually turn a cow. However, we regard Fact finding No. 12 as more or less immaterial and the judgment can be sustained on the other findings and other evidence in the record under the 10 year statute of limitations.

Appellants strongly contend that the undisputed testimony of appellees showed that the controversy was merely a boundary dispute and point out various portions of appellees’ testimony on cross-examination to the effect that they were claiming the land under their deed, that their deed called for the disputed tract, that they didn’t want any land that they did not own under their deed, and matters of like import. However, on re-direct examination Mrs. Taylor stated that they were claiming the property to the fence line that they established as well as by the deed, that the land was their homestead, that they resided on the land, that they were claiming the land on the East and South boundary lines, that it was established ten years ago or more, and that the fence in question had been there more than ten years and that it would turn cattle. On cross-examination Mrs. Taylor also testified to the effect that the fence in question enclosed her yard (or a part of it).

For a discussion of some of the problems posed as to whether a suit is a boundary dispute alone or a suit under the limitation statutes see 2 Tex.Jur.2d, Adverse Possession, § 91. We quote in part from said article as follows:

" * * * When the evidence raises an issue as to whether a claimant ever intended to claim any more land than was actually included in his grant, that issue is to be determined by the trier of the facts/’ (Emphasis added).

In Major et al. v. Meyers et ux., Tex.Civ.App., 111 S.W.2d 1184, no writ (1937), it was held that land which was not covered by adverse possessor’s deed and was adversely claimed and used by such possessor for over ten years was acquired by adverse possession even though possession was the result of mistake in boundary line and possessor thought land was covered by her deed and expressed willingness to vacate the land after the statutory period had run. We quote from the court’s opinion in said case as follows:

“Plaintiffs in error contend that the concrete coping and the fence were put 14 inches over on lot 16 by mistake, as the boundary line between lots 16 and 17, and that where there is a mistake in locating the boundary line fences, and the owner of the property fenced by mistake claims only the property called for in the deed, there can be no adverse holding sufficient to start the statute of limitation; that the concrete coping and fence were placed by mistake on lot 16, and that the Court of Civil Appeals is not bound by the trial court’s findings ‘where there is no evidence to support his findings, or where the judgment is against the great preponderance of the evidence.’
“We think the evidence clearly shows that the coping and fence were put on plaintiffs’ lot 16 by mistake; and that while the defendants and their predecessors in interest claimed title under their deed to the overlapping lot 17, they also occupied and used adversely the strip of land in controversy as a part of their lot 17 for more than ten years before the filing of the suit. It is true the evidence shows at one time defendants expressed to plaintiffs a willingness that the fence be moved to the proper boundary line between lots 16 and 17, but such expression of willingness was made after the full period of ten years’ adverse possession and claim had matured the title, and did not tend to affect their good faith of the claim of ownership or adverse possession. Defendants claimed title to the strip of ground in their pleading and in their evidence.
“The question presented here is whether defendants can establish title under the ten-year limitation statute, Vernon’s Ann.Civ.St. art. 5510, when the boundary line under which they claim was established by mistake.
“The question is ruled against plaintiffs’ contention in McCabe v. Moore, Tex.Civ.App., 38 S.W.2d 641, 642, in which case it is held: ‘A plea of title by the 10-year statute of limitation is supported by possession for the required period and claim of ownership under a deed, although the deed does not include the disputed tract,’ and refers to a number of cases as so holding. 2 Tex.Jur. 125, par. 65.
“Citing with approval the case of Alexander v. Wheeler, 69 Ala. 332, 340, our courts in Hand v. Swann, 1 Tex.Civ.App. 241, 21 S.W. 282, and Daughtrey v. New York & T. Land Co., Tex.Civ.App., 61 S.W. 947, 948, state the rule to be that ‘where the fence is believed to be the true line, and the claim of ownership is up to the fence as located, even though the established line is erroneous, and the claim of title was the result of the mistake,’ the claimant’s adverse possession and claim of title would not be defeated by reason of the error and mistake in the location of the fence as the boundary line.
“As said in the case of Bruce v. Washington, supra, 80 Tex. 368, 15 S.W. 1104, the legal effect of the facts referred to in the opinion to which we refer without quoting them here cannot be destroyed or impaired by a mere declaration, after the right attaches by virtue of the law, that the claimant was not claiming plaintiff’s land by limitation. To the same effect in the case of Jayne v. Hanna, Tex.Civ.App., 51 S.W. 296, 297, where it is said: ‘Does the fact that appellee held adverse possession of the land under the belief that it was covered by her deed, and that she had perfect title to it, when in fact it was not embraced within her purchase, deprive her possession of any element necessary to support the plea of limitations? This question we regard as settled in the negative.
« ⅜ $ * a

Also in this connection see Chittim v. Auld, Tex.Civ.App., 219 S.W.2d 702, wr. ref., n. r. e. (1949), and authorities cited therein.

We think that when the entire evidence of the appellees Taylors, with respect to their adverse claim to the land up to the fence they constructed in 1955, given on direct examination, cross-examination and re-direct examination, is considered, including any and all inconsistencies therein, if any, that such inconsistencies (if any) were matters for the trial court (the trier of the facts and the judge of the credibility of the witnesses and of the weight to be given their testimony) to reconcile, and that such evidence raised a fact question as to whether appellees Taylors were claiming the strip in question adversely up to the fence they built in 1955, and for more than 10 years consecutively thereafter. It is well settled law that inconsistencies in the testimony of a witness are generally matters for the trier of the facts to determine or reconcile as stated in Tunnell v. Van School District No. 53, Tex.Civ.App., 129 S.W.2d 825, writ dism. judg. cor. (1939), as follows:

“The fact that other testimony of Wells may be inconsistent with the above statements does not take from the whole of his testimony its probative force as regards the construction the jury decided to place upon it. It is for that fact-finding body to reconcile such inconsistencies. Norwich Union Indemnity Co. v. Wilson, Tex.Civ.App., 17 S.W.2d 68, 76; Austin Fire Ins. Co. v. Adams-Childers Co., Tex.Com.App., 246 S.W. 365."

Also in this connection as to whether a fact issue of adverse possession under the 10 year statute was raised see Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453 (1944), wherein it was stated in part as follows:

“Doherty contends that the evidence in this case entitles him to a judgment awarding him the title and possession of this land because it shows conclusively that Pearson did not claim adversely as against the true or real owner, and therefore shows that Pearson has not acquired title by the Ten Year Statute of Limitation. We overrule this contention. In our opinion the evidence contained in this record raises a fact issue on the question of adverse claim and possession. It is true that Pearson, in his deposition taken before the trial, stated that he was not trying to take this land away from those who owned it; but at the trial itself Pearson testified that since 1925 he had never acknowledged that any other person than himself owned this land, and that since 1925 he had always claimed it for himself. The record in this condition presents a fact question. Stewart v. Luhning, 134 Tex. 23, 131 S.W.2d 824; O’Meara v. Williams, Tex.Civ.App., 137 S.W.2d 66.”

Also see Payne et vir. v. Priddy ex ux., Tex.Civ.App., 371 S.W.2d 783, no writ (1963), wherein it was stated:

“In the instant case the testimony of Cox relied upon by plaintiffs, viewed in the light of all his testimony, at most, merely raised a fact issue as to whether he claimed the disputed strip adversely from the time of the erection of the fence. Liles v. Sawyer, Tex.Civ.App., 257 S.W. 2d 512; Pearson v. Doherty, supra; Pasha v. Schell, Tex.Civ.App., 229 S.W.2d 818, error ref.; Gleckler v. Denton, Tex.Civ.App., 149 S.W.2d 213, dismissed, correct judgment; 2 Tex.Jur.2d pp. 188-191, §§ 90-91.”

In summation, it is our best judgment that there is evidence of probative force in the record to support the judgment of the trial court under the ten year statute of limitations, and that the judgment of the trial court on that theory is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Finding that the trial court entered a correct judgment under the record in this cause, the judgment of the trial court is accordingly affirmed.

Affirmed.


author: WILSON, Justice.

text:
    RENAULT, INC., et al., Appellants, v. CITY OF HOUSTON, Appellee.
    No. 4610.
    Court of Civil Appeals of Texas. Waco.
    May 18, 1967.
    Rehearing Denied June 8, 1967.

      Thompson, Coe, Cousins & Irons, R. B. Cousins, Dallas, Painter & Painter, James R. Roos, Houston, Greenhill & Speyer, Simon Greenhill, New York City, for appellants.
    William A. Olson, City Atty., Homer T. Bouldin, Herbert M. Beazley, Asst. City Attys., Baker, Botts, Shepherd & Coates, John F. Heard, Andrews, Kurth, Campbell & Jones, Wm. H. Tenison, Jr., Houston, for appellee.
   WILSON, Justice.

OPINION

This action arises from damage alleged to have been caused by diversion or impounding of water by a road. Appellants, importers and distributors, stored 1620 Renault, Dauphin and Peugeot automobiles which had been imported from France through the Port of Houston. They leased 27 acres as a storage area, beginning the storage late in 1959. The south boundary of the storage tract was Clinton Drive, a divided roadway, the south half of which was higher than the other. There was a culvert under the road, and under railroad embankments south of the road.

On June 24, 1960 rainfall began in the area and in a three-day period totalled 14.25 inches. It was the heaviest rainfall ever recorded for such period. Water covered the storage lot, resulting in damage to the automobiles found by the jury to be $900,000. The parties stipulated a limitation of the damages to $862,500.

The City of Houston was the sole defendant against which judgment was rendered. It did not construct Clinton Drive. The road had been built by Harris County in 1947, and annexed to the City of Houston in 1949.

Plaintiff-appellants pleaded and tried the suit, as they say, on three theories: (1) that there was a damaging of the automobiles under Art. I, Sec. 17 of the Texas Constitution, Vernon’s Ann. St.; (2) that the city was liable for impounding surface waters in violation of Art. 7589a, Vernon’s Ann.Civ.St.; and (3) common law negligence. As the case is briefed by appellants we are concerned only with the first two pleaded bases of recovery.

The jury verdict included findings to the effect that the City maintained the culvert under Clinton Drive at an elevation and size which prevented adequate drainage; that the road was maintained by the City so as to impound and interfere with the natural flow of surface waters; that appellants were negligent in failing to ascertain the drainage characteristics of the property, and this negligence was a proximate cause of damage. Negative answers were returned to issues inquiring about negligence of defendant, and proximate cause; and as to whether the damages were solely caused by an act of God. The court overruled appellants’ motion for judgment and rendered judgment for the City.

Appellants’ points are to the effect that the City is liable under the noted constitutional and statutory provisions. We do not reach their point as to existence or adequacy of evidence to support the adverse negligence finding.

We first consider appellants’ contention that absolute liability existed, despite findings of negligence, by the provisions of Art. 7589a, Vernon’s Ann.Civ.Stat. This statute provides that it is unlawful for “any person, firm or private corporation” to divert the natural flow of surface waters, or to permit a diversion or impoúnding thereof to continue in such manner as to damage another’s property by overflow of the water so diverted or impounded. It is provided that the injured party “shall have remedies, both at law and in equity, including damages occasioned thereby”.

We do not decide the question of whether the statute imposes absolute liability, irrespective of negligence and proximate cause.

In our opinion Art. 7589a is not applicable to appellee, the City of Houston, since it is a municipal, and not a “private corporation.”

In State v. Central Power & Light Co., 139 Tex. 51, 161 S.W.2d 766, 768, the Supreme Court considered a statute prohibiting certain acts of “persons, firms, corporations or associations of persons,” and, holding that a municipal corporation was not contemplated by the act, announced the rule that “the word ‘corporation’ is construed to apply only to private corporations and does not include municipal corporations, unless the statute expressly so provides.” Art. 7589a not only fails to expressly include municipal corporations; it specifically designates and confines those included to “private” corporations.

Liability is not sustainable under the statute. See City of Tyler v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 288 S.W. 409, 410, rehearing overruled, id., 294 S.W. 195 and authorities cited; City of Houston v. L. J. Fuller, Inc., Tex.Civ.App., 311 S.W.2d 285, 291; City of Houston v. Howe & Wise, 323 S.W.2d 134, 151, writ ref. n. r. e.

Appellant says the City is subject to absolute liability under Art. I, Sec. 17 of the Texas Constitution, as to which plaintiff’s negligence is no bar.

The asserted Constitutional basis of liability is best tested by consideration of ap-pellee’s arguments against it.

The City says this is exclusively a tort action based on negligence; that therefore plaintiff’s contributory negligence bars recovery; and that there is no constitutional taking or damaging. It relies on language in DuPuy v. City of Waco (Tex.Sup.1965), 396 S.W.2d 103, 108, that the basic concept in the constitutional requirement for payment of -compensation is in terms of private property being subjected to “perpetual servitude.” It seizes on this language to argue that if the City is liable and were to pay for a constitutional taking it would thereby have a “perpetual servitude” on the land under the Supreme Court’s holding; that it obviously would not acquire such a perpetual servitude in this case, and the constitutional provision, therefore, does not apply. The Supreme Court, in DuPuy, however, only distinguished between a “taking” of property and its damage or destruction. The language in the opinion does not sustain the argument, and we think it does not imply the restriction now claimed.

The City attacks a reference in appellants’ brief to “inverse condemnation,” and debates at length the premise that this is such. It says there is no taking in this case. It is not necessary to pass on the question. (See Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99).

The damage to plaintiffs’ automobiles is “damage” to property under Art. I, Sec. 17. That question was decided by the Supreme Court in City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d 577 (1932). In the Roberts case the City built an embankment which caused water from rainfall, which normally flowed toward a creek, to accumulate and stand for limited periods on plaintiff’s property, reducing its value. It was held the property was damaged under Art. I, Sec. 17.

It is next urged that the City cannot be held liable under the constitution when acting in connection with street “maintenance,” a proprietary function. The argument is that the verdict found that street “maintenance”—not the actual construction —resulted in impounding of the water; that the City can therefore only be liable as for tort, and not for constitutional damage. Language in Bates v. City of Houston, Tex.Civ.App., 189 S.W.2d 17, writ ref. w. m., is relied on. That case stated that by maintenance of a nuisance (“a tort different in character from mere negligence”) the City exercised a proprietary function, and was not liable for constitutional damage. On rehearing the opinion stated that a city can “damage” private property only when it acts as an arm of the state, and “not in its proprietary capacity.” The cases cited do not support the statement. Appel-lee’s argument, in our opinion, is not sound. See State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 737.

Appellee says the word “property” in the Constitutional provision applies only to real property, and not to automobiles, as movable personalty temporarily stored on land. Its reasoning appears to be simply that other reported Texas cases involve only realty. The term “property” as used in the Fifth Amendment to the Federal Constitution relates to every species of property, including personalty. Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434. It also means this under the Texas Constitution. See Gulf, C & S. F. Ry. Co. v. Fuller, 63 Tex. 467, 469.

The City submits that the automobiles were not taken, damaged or destroyed for “public use,” and that Constitutional liability, consequently, does not exist. We are not concerned here with the application of the quoted words to “taking” in eminent domain proceedings. In the'latter context the use must not be a “private” use or purpose. Maher v. Lasater, 163 Tex. 356, 354 S.W.2d 923. The Texas Constitution is broader here in its scope than the language of the Fifth Amendment to the United States Constitution. See Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414. “Damage” here means “injury.” Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467; Magnolia Pipeline Co. v. City of Tyler, Tex.Civ.App., 348 S.W.2d 537, writ ref.

Here the automobiles are not “taken” in toto, but they are damaged. Cf. Tarrant County, etc., Dist. v. Fowler, Tex.Civ.App., 175 S.W.2d 694, writ ref. It is the road, and not the automobiles, to which the term “public use” must be applied. That use must have a justifying public purpose. Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941. Here the automobiles are damaged in the exercise by the City of its lawful authority in performance of such a lawful purpose for the benefit of the general public, and the damage is for “public use.” See State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736. The contention, in our opinion, should be rejected.

The City presses us to hold that it did not “damage” the automobiles because it did no affirmative act. It is insisted that when the City annexed the land in 1949 the road had already been constructed by the County, and appellee is only charged here with continuing or maintaining the preexisting condition. Thereby, it claims, it has no liability under Art. I, Sec. 17.

On this question the City emphasizes language in State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736: “The true test is, did the State intentionally perform certain acts” resulting in plaintiffs’ damage. These words are not subject to the City’s restrictive interpretation, in our opinion. We do not believe the writer intended to differentiate “acts” and “omissions”, or active and passive conduct. There is as much culpability for the “act” of continuing or maintaining a condition under the Constitution, we think, as for its creation. See Barber v. City of East Dallas, 83 Tex. 147, 18 S.W. 438, 439.

Finally it is said the notice and ■claim requirements of the Houston City ■Charter were not complied with. In the case of damage under Art. I, Sec. 17, notice and claim are not conditions precedent to right of recovery. City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d 577, 579 (1932).

Appellee’s cross-point that plaintiffs’ cause of action is barred by limitation has been considered and is overruled. The ■cause of action did not accrue until the damage occurred, and the action was instituted within two years thereafter.

The case has been fully developed. Although the jury verdict was for $900,000, the parties have stipulated that the judgment .should not exceed $862,500. The judgment is reversed and here rendered for plaintiffs in that sum.

      . Appellants rely on City of Brady v. Cox, Tex.Civ.App., 48 S.W.2d 511, no writ. The opinion in that case merely suggested that the Fletcher v. Hylands rule of strict liability was the same for municipal corporations as for private corporations under the decision in City of Wichita Falls v. Mauldin, Tex.Com.App., 39 S.W.2d 859, and City of Wichita Falls v. Sullivan, Tex.Com.App., 39 S.W.2d 882. The latter two cases arose on facts which occurred in January, 1927 before the re-enacted statute, Art. 7589a, was adopted; and they did not mention the statute. City of Brady v. Cox did not purport to hold the Statute was applicable to municipal corporations, but said it saw no reason why the “principle” of strict liability should not apply to municipal corporations. In Falls County v. Kluck, Tex.Civ.App., 199 S.W.2d 704, no writ, also relied on, the court cited City of Brady v. Cox. There were before the court only two questions: whether a showing of irreparable injury was sufficient to support an injunction where damage was measurable, and excessive damages. We are of the opinion our holding is not in direct conflict with the decision of a material question of law in that case, but if so, we follow the Supreme Court’s holding in the matter.

      . “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person * *

      . The opinion in Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70, on which the City relies, involved the spreading of fire in the burning of grass while the Highway Department was engaged in highway maintenance. The basis for holding constitutional non-liability was that the damage was “not necessarily an incident to, or necessarily a consequential result of,” clearing grass from the highway, but was solely the result of negligence. The quoted factor is not present in this case. See 15 Baylor L.Rev. (1963) 403.

      . City of Dallas v. Winans, Tex.Civ.App., 262 S.W.2d 256, no writ, is relied on. That case was not an action for damages, but for mandatory injunction. It is not in point.


author: KLINGEMAN, Justice.

text:
    E. E. HOOD, Sr., et al., d/b/a E. E. Hood & Sons, Appellants, v. J. A. LANING, Jr., et ux., Appellees.
    No. 14496.
    Court of Civil Appeals of Texas. San Antonio.
    May 24, 1967.
    Goodstein & Semaan, San Antonio, for appellants.
    C. H. Gilmer, Rocksprings, Leo Darley, Uvalde, for appellees.
   KLINGEMAN, Justice.

Suit by appellees against appellants for personal injuries and property damages resulting from blasting operations conducted by appellants while in the process of constructing a road. Trial was before the court without a jury and judgment was entered in favor of appellees.

Findings of fact and conclusions of law were made by the trial court. The material findings of fact are: That plaintiffs’ home was completed for occupancy on November 16, 1960, and the cost of their home was $25,000; that on December 13, 1960, defendants were engaged in the construction of a farm-to-market road, and on such date one of defendants’ employees set off a dynamite charge in such construction work, which charge was located 170 feet from plaintiffs’ house; that before setting off such charge said employee went to plaintiffs’ house and told Mrs. Doris Laning, one of the plaintiffs, that he was going to dynamite, and asked her to move a car that was in her driveway, which she did; that the charge was set off in three holes 3½ to 4 feet deep, and the charge consisted of one-half stick of dynamite in each hole, upon which was placed one shovel of ammonia nitrate, and dirt placed and tamped on top of said ammonia nitrate; that all three one-half sticks of dynamite exploded simultaneously; that the force of such charge propelled a rock, weighing in excess of ten pounds, from such location to a sufficient height that it came down on the roof of plaintiffs’ house, making a hole in the roof and the ceiling; that plaintiff Mrs. Laning and her son were in the house at such time; that at such time small rocks and dirt appeared on the roof and a large rock appeared in one bedroom; light fixtures were broken in two rooms, dishes rattled on the shelves, a picture fell, various items of furniture were broken and scarred, various cracks appeared in different parts of the house, including cracks in both inside and outside walls, one crack being of sufficient width that daylight could be seen through it; some cracks extended from the walls into the floor, and in some instances into the foundation; a crack appeared in the garage floor and the patio floor, some pieces of terrazzo tile flooring were broken, and the tile flooring was loosened in several rooms; that none of such cracks existed before the explosion, and the damage was caused by the explosion shaking the house and foundation and causing the large rock to be propelled into the air and through the roof and ceiling of plaintiffs’ home; that structural damage was done to the house by the explosion which cannot be permanently repaired; that plaintiff Mrs. Laning had a nervous condition prior to such explosion, and after such explosion such condition was more intense and she suffered shock as a result of damage to her house and the noise from such explosion; that the reasonable market value of the house before the explosion was $23,500, and after the explosion, $11,750; and the personal property and furniture damage was $443.66; that Mrs. Laning was damaged $1,000.00 as a result of aggravation of her prior illness; that no investigation was made by defendants or their employees to determine what amount of explosives would be safe to use at the time and place and under the conditions then existing; that the only measure taken by defendants to contain rock fragments was to tap a small amount of dirt on top of each hole; that after the explosion defendants requested and received permission to change the grade of such road, used no more explosives on the job, and thereafter used other methods; that plaintiffs were not warned to leave the residence; that failure to protect plaintiffs’ residence and failure to warn constituted negligence; that such acts of negligence were the proximate cause of all the damage and injury sustained by plaintiffs to said residence, furniture and furnishings, and to \Mrs. Laning.

The court’s material conclusions of law may be summarized as follows: That defendants and their employees were negligent (1) in using too large a charge of explosive material for safety in setting the same off, at such time and place and under the circumstances; (2) in failing to cover up such place where such explosives were placed in such a manner as to hold or retain all the resulting rocks, boulders and debris, caused by such blast; (3) in setting off, at all, such explosives in such place at such time; (4) in failing to warn plaintiffs that they intended to set off a blast or explosion of the kind and character they did, in order to permit plaintiffs to flee their home; (5) in using a charge of explosive material too large for safety of plaintiffs and their property, at such time and place; (6) in failing to take proper precautions not to damage the property or persons of plaintiffs. That the negligence of defendants and their employees, as set out in Conclusions Nos. 1, 2, 3, 4, S and 6, was a proximate cause of the damages to the house of plaintiffs, damage to their furniture and personal property, and the aggravation of the prior illness of plaintiff Mrs. Laning.

Appellants in this appeal set forth 85 points of error, consisting chiefly of their contentions with regard to the different specific findings of negligence and proximate cause by the court: (1) that there was no evidence to support such findings and judgment; (2) that the evidence is insufficient to support such findings and judgment; (3) that such findings are contrary to the great weight and preponderance of the evidence. Appellants also complain of error of the court in refusing to amend certain findings of fact, in refusing to reconcile a finding of fact and conclusion of law, and in refusing to make certain specified requested findings of fact (Points of Error Nos. 82, 83 and 84). Appellants did not brief these three points and we find them without merit. Appellants’ last point of error is that the judgment is excessive because the court allowed a recovery of damages to appellees’ house alleged to have been caused from concussion and vibrations instead of limiting such recovery to the damages resulting from the rock going through the roof.

The thrust of appellants’ contention is that while they concede that they are liable for any damages caused by the actual physical trespass of the rock going through the roof and ceiling, there is no evidence, or insufficient evidence, to establish negligence and proximate cause as to any damages resulting from concussion and vibrations.

Appellees assert that there is sufficient evidence of probative force to support the court’s findings and conclusions of various specific alleged acts of negligence and causation, and that the judgment is sufficiently supported by the evidence, and further contend that such judgment is supported under the doctrine of res ipsa loquitur. Appellees did not specifically plead res ipsa loquitur, and we do not deem it necessary to pass on this contention on this appeal.

Appellants concede, in their brief, that in blasting cases in this State where there has been an actual trespass, such as damages caused by rocks or debris, the courts have imposed a rule of strict liability as against the person using the explosives, and that insofar as appellants’ liability for damages for such trespass in this case there is no dispute. This position is supported by the cases of Universal Atlas Cement Co. v. Oswald, Tex.Civ.App., 135 S.W.2d 591, affirmed, 138 Tex. 159, 157 S.W.2d 636 (Tex.Comm’n App.1941); Cisco & N. E. Ry. Co. v. Texas Pipe Line Co., Tex.Civ.App., 240 S.W. 990, writ ref’d. However, appellants further contend that with regard to all other damages, except those caused by such actual trespass, the Courts of Texas are committed to the rule that liability must be predicated upon negligence. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221; Klostermann v. Houston Geophysical Co., Tex.Civ.App., 315 S.W.2d 664, writ ref’d; Standolind Oil & Gas Co. v. Lambert, Tex.Civ.App., 222 S.W.2d 125, no writ. We are in agreement with this position. We do not deem it necessary in this case to attempt to apportion the amount of damages caused by the actual physical trespass of the rock falling through the roof and ceiling, and the amount caused by concussion and vibrations, because there is sufficient evidence of issuable negligence and causation to support the judgment of the court.

Appellants contend that in blasting cases, except where there has been an actual physical trespass, not only must plaintiff prove negligence, or the failure to use ordinary care, but also must produce evidence by an expert in the field of explosives to show what is a safe standard of care under the same or similar circumstances and the violation thereof. In support thereof, they cite: Sinclair Oil & Gas Co. v. Gordon, Tex.Civ.App., 319 S.W.2d 170, no writ; Dellinger v. Skelly Oil Co., Tex.Civ.App., 236 S.W.2d 675, writ ref’d n. r. e.; Stanolind Oil & Gas Co. v. Lambert, supra. These case are seismograph blasting cases. A brief review of the evidence at this point might be helpful. Both appellants and ap-pellees put on expert witnesses in the field of use of explosive materials and their effect. The examination of the premises by such experts was made a considerable length of time after the actual explosion. According to appellants’ evidence, the explosive used on the occasion of the damages was a charge set off in three holes between 2½ and 4 feet deep, approximately 2½ inches in diameter, with a half stick of dynamite in each hole, upon which was placed one shovel of ammonia nitrate, and dirt placed thereon, with all charges being exploded simultaneously. The evidence further shows that appellees’ house was located approximately 170 feet from the charge; that it was built of concrete tile walls, with composition roof and solid concrete slab foundation with reinforcement steel, and was practically new, having been completed about one month prior to the explosion. That such explosion threw one rock, weighing in excess of ten pounds, into the air and on to the roof of appellees’ house, making a hole in the roof and ceiling and falling into one of the bedrooms; that it also threw some small rocks and debris on the house.

Both Mr. and Mrs. Laning testified that there were no cracks in the house or foundation prior to the explosion, and Mrs. Laning specifically testified that she had gone over the entire house thoroughly the day before the blast because she was going to have a Christmas party and wanted to have it clean; that at such time she observed no cracks, but immediately after the blast a number of cracks appeared, including cracks in both interior and outside walls and in partition walls; that one of the cracks was of sufficient width that daylight could be seen through it; that some cracks extended from the walls into the foundation, and that there were other cracks in the foundation; that cracks appeared in the garage floor and the patio floor; that the tile flooring in several rooms was loosened, and in some instances the tiles were broken. This testimony was substantiated by the contractor, who testified that he made an inspection of the house very shortly before the explosion and soon thereafter. The evidence further showed that Mrs. Laning and her son, Buck, were in the house at the time of the explosion, and that dishes rattled on the shelves in the kitchen, a picture fell from the wall in one room, a light fixture was broken in another room, and that artificial grapes and flowers plastered to a plaque fell from the plaque in one room. Appel-lees’ contractor testified that appellees’ house suffered structural damage, which damage could not be permanently repaired. Two witnesses testified that the value of the house before the explosion was in excess of $25,000, and after the explosion, between $10,000 and $12,500. The testimony further showed that the charge holes were drilled into rock; that appellees’ slab foundation was laid on a solid rock, and that after the explosion appellants requested and received permission to change the road grade and thereafter used no more explosives in the area; they used other methods to break up the rock.

Appellants’ expert witness testified that it was highly improbable that the cracks in the house or foundation were caused by the explosion, and that in his opinion the cracking resulted from shrinking and expansion of the concrete and concrete blocks and from temperature and moisture changes, and was not in any way connected with the explosion; that from the amount of charge allegedly set off it would have been virtually impossible for ground-borne waves to damage a residence 180 feet away, and that he didn’t think that there would be enough air-borne waves to cause any structural damage to the house. This expert admitted that it was unusual that such a blast would propel a rock in excess of ten pounds the distance that it did; and that it would be very unusual that from natural causes cracks would noticeably appear all over the house at one time in different materials, different floors, and tiles be broken, all within a span of a few hours. Appel-lees’ expert, who made a thorough examination of the house, testified in some detail as to the cracks and other damages he observed, and stated that the blast could have caused the cracks and damages, and when asked: “If all these cracks that you observed appeared almost instantaneously and were evident immediately after the blast on December 13, 1960, would that in your opinion increase the possibility that they were caused by the dynamite blast?” stated, “It sure makes you think that way.” The testimony showed that not only dynamite was used but that another explosive, ammonia nitrate, was also used in the blasting operations, and while there is no definite testimony as to the strength of this explosive, the testimony does show that it has explosive characteristics, and one of the appellants, Ranney V. Hood, who was the superintendent on the job, testified that the purpose of the dynamite was to set off the ammonia nitrate. As to the standard of care for such blasting operations, appellants’ witnesses testified that the amount of charge used and the procedure followed was their normal and customary procedure in blasting operations. The standard of care and customary procedure would certainly vary under the particular facts or circumstances, the proximity to improvements, type of soil or terrain, and other matters would all enter into such standard. The standard of care or customary practice would not be the same where blasting operations were carried on in an isolated area and where they were carried on in a residential area. In a blasting case, Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co., 298 S.W. 554 (Tex. Comm’n App. 1927), the Court stated:

“It is easily conceivable that ‘customary practices’ might of themselves be unlawful or unreasonable or include negligence. * * * In the next place, when usage testimony becomes admissible in a dispute beyond the contract field, its purpose is not ⅛ fix the standard of conduct, but it is to give evidence to the trier of fact issues to aid him, in so far as it may, in applying the standard of conduct which the law itself prescribes. * * * ”

and further stated:

“ * * * while the standard of conduct which the law prescribes (here, we suppose, ‘ordinary care’) does not change, it does exact a measure of caution appropriate to the danger involved and, accordingly, may justify as extremely prudential an act or omission in one set of circumstances and denounce as reckless a like act or omission differently conditioned. * * * .
“Due care, no doubt, involved good-faith observance of all relevant data and its lessons, including what was known and what was consciously unknowable about the qualities of the explosive and of the area in which its force was to be exerted, for there is a general obligation upon men to employ their senses in a humanitarian direction, * * *. A proper corollary is that the quantum of applied intelligence must increase with warning that the actor may be putting another man, or another man’s property, in danger.”

The case of McKay v. Kelly, Tex.Civ.App., 229 S.W.2d 117, is a blasting case somewhat similar to the case on appeal, although it did not involve a physical invasion of plaintiffs’ premises by rock, debris, or other matter. Plaintiffs testified that simultaneously with explosions in defendant’s caliche pit, which was between 700 to 1200 feet from plaintiffs’ premises, the “whole premises” were shaken, cracks appeared in the walls, chimney and fireplace of their home, objects were shaken out of a cabinet to the floor, and after the blast a big crack appeared in the concrete porch, and there was other damage to the house. The Court of Civil Appeals applied the doctrine of res ipsa loquitur in holding defendant responsible for the damages and, in its opinion, the Court stated: “We believe it to be a matter of general knowledge that blasting by the use of explosives will not cause damage to adjacent property unless negligently conducted. * * * If a person in, say, blasting stumps sets off an explosion which levels his neighbor’s house several hundred feet away, it would be rather ridiculous to require proof of the exact amount of explosive used in order to show that he used too much.” The Supreme Court, in affirming such decision, 149 Tex. 343, 233 S.W.2d 121, held that it was unnecessary to decide such case on the basis of res ipsa loquitur, because there was some evidence which would have sustained a finding of negligence on the defendant’s part.

The case of Pelphrey v. Diver, Tex.Civ.App., 348 S.W.2d 453, writ ref’d n. r. e., involved damages to plaintiff’s home of hollow tile construction by blasting operations in a rock quarry about three-fourths of a mile away. The jury found that such damage to plaintiff’s home was proximately caused by defendant’s negligence. Defendant on appeal contended there was no evidence of negligence and none of proximate cause, relying chiefly on the testimony of one of his employees as to custom and usage, and also that of an expert who said that the damage he found to plaintiff’s house could not have been caused by the explosion. The Court of Civil Appeals in affirming such judgment held that there was some evidence and sufficient evidence to support the jury’s findings, stating that the evidence showed that an explosion was set off with sufficient force to cause damage to plaintiff’s property; that it was near enough to and did cause damage, and that the explosion caused vibrations in the air and in the ground not only at plaintiff’s residence but also at his neighbors’ property.

Cage Brothers v. McCormick, Tex.Civ.App., 344 S.W.2d 203, writ ref’d n. r. e., was an action for damages alleged to have resulted from blasting operations in a quarry. There was evidence that there were no cracks in plaintiffs’ homes before the blasting, but when the blasting started cracks began to appear in the walls. There was both expert and nonexpert testimony as to the nature and force of such explosions, with the testimony of plaintiffs’ experts and defendants’ experts conflicting. In affirming a judgment for plaintiffs on a jury verdict, this Court held that there was some evidence to support the jury’s findings that defendants in conducting the blasting operations used an excessive amount of dynamite, and, in such opinion, Justice Murray stated: “Furthermore, the jury was not required to believe the opinions of appellants’ experts.” The testimony of plaintiffs and their witnesses in the case before us, that the damages to plaintiffs’ home occurred immediately following the blast, contradicts defendants’ expert witness’ testimony that the damage he found to plaintiffs’ house could not have been caused by the blast. In Weaver v. Benson, 152 Tex. 50, 254 S.W.2d 95 (1952), which was a suit for cracks in a wall allegedly^ caused by nearby blasting operations, the Court stated: “Doubtless the fact of even an atomic blast plus the bare fact that the crack exists is not evidence that the latter is due to the former, since obviously cracks in walls occur more often than not for reasons other than blasts. But where there are additional circumstances in evidence tending to date the crack as coincident with the blast, the result may well be different. Surely if there were eye-witness testimony that the crack never existed before the blast and was noted for the first time the day after the blast, the degree of force of the blast — its ability to have caused the crack— would be at least a circumstance to fortify or weaken the inference from the date of origin that the crack was caused by the blast. * * * In blast-damage cases, the fact that causation is so often impossible of proof, except through circumstantial evidence, justifies a rather liberal attitude in judging the relevance of a particular circumstance.”

The record discloses that there was some evidence and sufficient evidence to support the judgment of the trial court. All of appellants’ points of error are overruled. The judgment of the trial court is affirmed.


author: BRADY, Commissioner.

text:
    Raymond MOORE, Plaintiff-Respondent, v. RUTGER STREET SAND COMPANY, a Missouri Corporation, Defendant-Appellant.
    No. 32543.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.

      Evans & Dixon, John C. Shepherd, Paul V. Gilbert, St. Louis, for defendant-appellant.
    Mogab & Hughes, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

Plaintiff brought this action to recover damages for personal injuries allegedly occurring while he was an employee of defendant. The jury’s verdict was in favor of plaintiff in the amount of $7,200.00 and judgment was entered thereon. Defendant appeals.

Prior to consideration of this appeal upon its merits we must rule the plaintiff’s motion to dismiss this appeal which was taken with the case upon submission. The facts relating to that motion show that plaintiff originally instituted this action against the defendant and Missouri-Illinois Material Company, a Corporation. Plaintiff dismissed his cause of action without prejudice as to Missouri-Illinois at the close of all the evidence. Immediately following that dismissal the court stated: “That thereafter Defendant Rutger Street Sand Company filed its motion for a Directed Verdict at the close of all the evidence.” The next item in the transcript shows a motion for a directed verdict offered at the close of all the evidence “ * * * ON BEHALF OF DEFENDANT MISSOURI-ILLINOIS MATERIAL COMPANY.” Following this motion appears: “Presented, argued, submitted and overruled, /s/ John C. Casey, Judge.” The transcript discloses the court then proceeded to rule upon the offered instructions immediately following which counsel for defendant stated: “I object to the Court subniitling' this case to the jury * * * and for the reasons set out in the motion for directed verdict, which has heretofore been overruled, all of these being grounds that the defendant Rutger Street Sand Company urges to the Court that this case should not be submitted to the jury, * * * THE COURT: Such motion will be overruled and denied. The cause will be submitted to the jury.” In support of his motion to dismiss the appeal the plaintiff has filed a certified copy of the minute entries of the court file in this cause which fail to show a written motion for directed verdict offered at the close of all the evidence entitled or otherwise stating it was offered on behalf of defendant.

Defendant did not file a motion for new trial but instead relied upon the after-trial motion procedure provided under Civil Rule 72.02, V.A.M.R., and filed a motion for judgment in accordance with its motion for summary judgment and its motion for a directed verdict offered at the close of all the evidence. The judgment became final thirty days from the date of the verdict which was on December 9, 1965.

The plaintiff’s contention is that this appeal must be dismissed for the reason that the defendant did not file a motion for directed verdict and there is therefore nothing for this court to review under defendant’s after-trial motion for judgment in accordance with its motion for directed verdict. The defendant concedes that the record is void of any motion for directed verdict offered on its behalf at the close of all the evidence but contends it is obvious there was such a motion filed. We must agree with the defendant. While such a motion does not appear the court stated defendant had filed its motion for directed verdict. The notation of the court that such a motion was “presented, argued, submitted and overruled” as signed by the trial judge must refer to the motion of defendant since the Missouri-Ulinois Material Company had passed out of the case immediately prior to this due to plaintiff’s dismissal of his cause of action as-to that company and there would be no reason to present, argue or submit a motion for directed verdict as to it. Moreover, the statement of defendant’s counsel following the trial court’s ruling upon the offered instructions shows clearly that the parties considered the defendant had filed a motion for directed verdict and the court’s ruling upon defendant’s counsel’s objection shows it had the same understanding. It is useless to speculate as to what happened; whether the motion of the defendant was lost or whether counsel for defendant picked up the wrong piece of paper and submitted a motion for Missouri-Illinois when he intended to submit the motion on behalf of the defendant. In any event, we hold the transcript discloses that a motion for directed verdict was offered by the defendant at the close of all the evidence. Plaintiff’s motion to dismiss this appeal is overruled.

There is a related matter raised by defendant’s brief and not contained in the motion to dismiss which, in the interest of clarity, is best disposed of at this point. Plaintiff raises the contention in his brief this appeal should be dismissed for the additional reason that even if we determine defendant filed a motion for a directed verdict there still is nothing properly before us to rule. Plaintiff’s argument proceeds in this fashion. Only those allegations in the motion for directed verdict offered at the close of all the evidence are before this court on appeal and since the only motion for directed verdict shown in the transcript is that offered on behalf of Missouri-Illinois, the only claim of error available to defendant is that stated therein; i. e., “ * * * under the law and the evidence, plaintiff is not entitled to recover against this defendant.” Of course, as plaintiff points out, this statement in a motion for directed verdict, by itself, saves nothing for appeal. See De Voto v. Fez Const. Co., Mo.App., 271 S.W.2d 199. The result, plaintiff urges, is that even if we decide (as we have herein) defendant filed a motion for directed verdict at the close of all the evidence we still must dismiss this appeal for the reason that by failing to file a motion for new trial defendant waived every claim of error not set out in the motion for a directed verdict and, as stated, the only allegation of error set out in the motion for directed verdict is one which is insufficient to preserve anything for our ruling.

The answer to this contention is that all that is required is for defendant to be specific in presenting his arguments at one point or another during the trial so the trial court has an opportunity to be informed of his contentions and to correct any error it may have committed. Defendant was not specific as to his grounds in his motion for directed verdict. However, he was specific in setting forth his contentions in his after-trial motion for judgment. Accordingly,, we rule this point against the plaintiff and will proceed now to the merits of this appeal.

The facts bearing upon the issue for our ruling are that plaintiff’s petition alleged he-was employed by the defendant as a deckhand and a member of the crew of the vessel known as “Gilmore” as a “barge dropper” and was injured by defendant’s negligence in failing to provide him with a reasonably safe place to work. Plaintiff submitted his case to the jury upon an instruction which required the jury to find: “FIRST: Plaintiff was employed by defendant to work as a seaman and that plaintiff did work as a seaman for defendant on barges which operated on the Mississippi River, and SECOND: Defendant failed to provide plaintiff a reasonably safe place to work, * * '

Prior to the date of trial of the instant case plaintiff filed an action in the United States District Court for “maintenance and cure”; an Admiralty action. That action arose out of the same occurrence as that alleged in the instant case, and the parties, both plaintiff and defendant, and their attorneys, were identical to those in the instant case. Trial in the Admiralty action took place prior to that in the instant case and resulted in judgment for the defendant. That judgment was later affirmed by the United States Court of Appeals. The findings of fact and conclusions of law as made by the trial judge in the United States District Court were stipulated to by the parties and were admitted for purposes of the record so as to preserve the issue for appeal but they were not read to the jury. The pertinent parts of those findings of fact are as follows: Plaintiff’s primary duty was that of a general laborer in shoveling, cleaning, and filling bins and other general labor around the plant; plaintiff occasionally relieved the regular “barge dropper” and when so acting would release a barge from its mooring so as to change its position in relation to crane' or sand shovel ; plaintiff’s duties did not require him nor was he ordered to board the vessel “Gilmore” or any other vessel; plaintiff’s duties as a “barge dropper” were temporary and occurred only when there were barges docked at defendant’s plant; plaintiff lived, slept and ate ashore and received an hourly wage and overtime pay; plaintiff’s accident did not occur while he was “barge dropping” but rather while he was performing the general labor duties connected with the operation of the sand processing plant; and that plaintiff was subject to no maritime hazard at the time of his injury. Stated as a conclusion of law appears the following: “Plaintiff was not a seaman nor a member of a crew of any vessel on or about the day of his alleged injury within the meaning of the General Maritime law or the Statutory Law of the United States.”

Defendant’s sole contention in this appeal is that the trial court erred in failing to grant its after-trial motions for the reason the doctrine of collateral estoppel applies so the determination by the United States District Court that plaintiff was not a seaman was conclusive and binding upon the judge in the instant case. The defendant’s contention is that it was essential in the Admiralty case .for plaintiff to prove he was a seaman in order to be entitled to maintenance and cure, and proof of this same issue is equally essential to his recovery in the instant “Jones Act” case. Since the same issue and the same parties are involved in both cases defendant contends the decision by the Federal District Court plaintiff was not a seaman or a member of a crew under Admiralty law is determinative of that point in the instant case. Of course, if plaintiff was not a seaman he cannot maintain his cause of action.

With commendable candor the plaintiff concedes that under Missouri law the decision of the United States District Court plaintiff was not a seaman would be binding upon the trial court in the instant case if such a holding could be characterized as a finding of ultimate fact. For Missouri law on the subject see Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886, and Smith v. Preis, Mo., 396 S.W.2d 636. The leading Missouri case on the subject is State ex rel. Gott v. Fidelity & Deposit Co. of Baltimore, Md., 317 Mo. 1078, 298 S.W. 83, 1. c. 87. Plaintiff’s position is that what is here involved is a conclusion of law and that the doctrine of collateral estoppel does not extend to such matters.

We cannot agree. While we do not place our decision upon this ground it is pertinent to note that plaintiff’s contention the doctrine of collateral estoppel does not apply to conclusions of law is only partially correct. The applicable rule is usually stated in the manner in which it appears in Young Men’s Christian Ass’n of St. Louis and St. Louis County v. Sestric, 362 Mo. 551, 242 S.W.2d 497, 1. c. 508, where the Restatement, Judgments, 1948 Supplement, Sec. 70, Comment f., was quoted with approval as follows: “[11] ‘The determination of a question of law by a judgment in an action is not conclusive between the parties in a subsequent action on. a different cause of action, even though both causes of action arose out of the same subject matter or transaction, if if would be unjust to one of the parties or to third persons to apply one rule of law in subsequent actions between the same parties and to apply a different rule of law between other persons.’ ” (Emphasis supplied.) The question therefore turns upon the justice of the situation and, absent a showing injustice would result, the doctrine of collateral estoppel is applicable to conclusions of law. Since the issue of whether plaintiff was a seaman was essential to the Admiralty action as well as to the instant case it would be difficult to comprehend a resultant injustice should the decision of the District Court be held determinative in the instant case. The only attempt plaintiff makes to show injustice is to contend he was entitled to a jury trial of that issue. The answer would seem to be he chose his forum and manner of proceeding when he filed the Admiralty case. He knew he would not have a jury trial in such a proceeding and he should not now be heard to complain that he was entitled to a jury trial and so should have proceeded in another manner.

In any event, as stated earlier herein, we do not place our decision in the instant case upon such ground. We hold that, regardless of in what portion of its decision the District Court placed its finding with regard to whether plaintiff was a seaman, such a holding was a finding of ultimate fact. In the instant case it should be noted that all of the findings of fact listed as such by the District Court are those which lead up to the decision of the ultimate fact; i. e., was plaintiff a seaman. One of those findings of fact contains the ruling, by implication at least, plaintiff was not a seaman. Such is a fair inference to be drawn from the District Court’s finding that plaintiff’s primary duty was that of a general laborer. The same implication may be drawn from the finding plaintiff was not subject to any maritime hazard at the time of his injury.

In the case of Williams v. Milwhite Sales Company, D.C., 197 F.Supp. 730, it was held that whether or not a man is a seaman is for the jury to determine. Norris, in his book The Law of Seamen, at Sec. 660, p. 799, states the question is one of fact which must be determined by the trier of the facts. In determining the Admiralty case the District Court was, in effect, sitting as a trier of fact. A submission to him of the essential question of whether or not plaintiff was a seaman was a submission of fact to the trier of the facts. Norris, The Law of Seamen, supra. The identical issue here presented was before the court in Wahlgren v. Standard Oil Co. of New Jersey, D.C., 58 F.Supp. 783. Under the circumstances presented in the instant case we hold that the District Court found as a matter of fact the plaintiff was not a seaman and that such finding is binding upon the plaintiff in the instant case.

The judgment must be reversed and the cause remanded to the trial court with instructions to enter its order sustaining the defendant’s after-trial motion for judgment.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is reversed and cause remanded to the trial court with instructions to enter its order sustaining the defendant’s after-trial motion, for judgment>

ANDERSON, P. J., RUDDY, J., and THEODORE McMILLIAN, Special Judge, concur.