text:
    McMULLEN OIL AND ROYALTY COMPANY, Inc., et al., Appellants, v. Daniel LYSSY et al., Appellees.
    No. 10924.
    Court of Civil Appeals of Texas. Austin.
    Jan. 17, 1962.
    Cox, Smith & Smith, San Antonio, for appellants.
    Ronald Smallwood, Karnes City, for ap-pellees.
   RICHARDS, Justice.

This appeal grows out of a suit filed September 7, 1955 as Cause No. 7768, in the District Court of Wilson County, by August Lyssy and twenty-eight other plaintiffs against John H. McMullen and twenty-one other defendants to cancel nineteen deeds executed in 1929 and 1930 by plaintiffs or their predecessors in title conveying mineral interests in certain lands in Wilson County, Texas to H. J. McMullen because of alleged fraud on the part of McMullen in representing that the deeds were oil and gas leases and that unless drilling operations for the production of oil and gas was not commenced by McMullen within a period of from three to six months thereafter the leases would automatically be cancelled and .the interests conveyed to McMullen would revert to the grantor plaintiffs.

On April 25, 1960, John Lyssy and wife Pauline Lyssy, who were among the plaintiffs in Cause No. 7768, conveyed all their interest in the minerals in the lands in controversy being approximately 125 acres out of the L. Manchaca III League Grant in Wilson County, Texas to their children Daniel Lyssy and others, appellees herein, and subsequently the Trial Court on August 11, 1960 entered an order of severance permitting appellees to file a new suit which was filed and docketed as Cause No. 8021 in the same court by appellees Daniel Lyssy, Edward Lyssy, Lucy Pollok et vir, Vincent Pollok, Proxie Wiatrek et vir, Thomas Wia-trek, Irene L. Pawlik, a widow and Magda-len L. Wiatrek as plaintiffs naming appellants McMullen Oil and Realty Company, Inc. and Fort Worth National Bank, Executor of the Estate of Susie McMullen Langille, deceased, as defendants. Contemporaneously with the order of severance the Trial Court entered an order in Cause No. 7768 granting the motion of plaintiffs to take a nonsuit against the defendant John H. McMullen.

The severed cause was tried before a jury on January 23, 1961 and based upon the answers of the jury to fourteen special issues the Court entered judgment for ap-pellees and cancelled the mineral deed in controversy. Appellants filed their motion for new trial which was overruled and thereafter timely perfected this appeal. Prior to the entry of the judgment appellants filed their motion for judgment non obstante veredicto which was overruled.

Appellants based this appeal upon nine points of error committed by the Trial Court in entering the judgment cancelling the mineral deed. As their second point of error appellants urge that the judgment of the Trial Court should be reversed and rendered because appellees’ cause of action for cancellation of the mineral deed in controversy was barred as a matter of law by the four year statute of limitations, Art. 5529, Vernon’s Civil Statutes, since the un-contradicted evidence before the Trial Court showed that appellees had not perfected service of citation upon appellants until more than four years and five months had elapsed after Cause No. 7768 was originally filed in the District Court of Wilson County and appellees failed to introduce any evidence of diligence or a reasonable excuse for delay in obtaining or attempting to obtain service of process upon appellants during that period. In our opinion appellants’ second point of error should be sustained.

In their second amended original answer appellants affirmatively pleaded, among other defenses, that the original pleadings in Cause No. 7768 were filed on September 7, 1955, that service of citation was not had upon appellants until February.26, 1960 and therefore the cause of action was barred by the four year statute of limitations. Appellants also raised the four year statute of limitations by special exception which was overruled by the Trial Court.

At the trial on the merits the following stipulated facts were offered in evidence, without objection, and read to the jury:

“3. That Plaintiffs’ Original Petition in Cause No. 7768 in this court, styled August Lyssy, et al., v. John H. McMullen et al., was filed with the Clerk of this court on September 7, 1955.
“4. That the records in Cause No. 7768 next above described reflect that service of citation in said Cause No. 7768 was perfected upon the Defendants, McMullen Oil and Royalty Company, Inc. and Fort Worth National Bank, Executor of the Will and Estate of Susie McMullen Langille, Deceased, on February 26, 1960, and that such records do not show that any other service of process was perfected upon such Defendants at any other time.
“5. That this Cause No. 8021 was severed from said Cause No. 7768 by order of the Court dated August 11, 1960.” (Italics supplied.)

In Texas it has long been held that the mere filing of a petition does not toll the statute of limitations since there must be a bona fide intention that process be issued and served and due diligence must be exercised in both the issuance and service of process. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93; Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178; Buie v. Couch, Tex.Civ.App., 126 S.W.2d 565, error ref.

The filing of the petition in Cause No. 7768 on September 7, 1955, coupled with the fact that service of citation in that cause was not perfected upon the appellants until February 26, 1960 without any showing that any service of process was attempted or perfected upon appellants at any other time, did not interrupt the statute of limitations since it was necessary for appellees to go further and show that “due diligence” was exercised by them in securing issuance and service of process upon each of the several appellants. Adams v. Slattery, supra, 295 S.W.2d 872.

It was therefore incumbent upon ap-pellees after the introduction in evidence of the stipulated facts concerning the date of the institution of the suit and the issuance and service of process upon appellants to show due diligence or some reasonable excuse for the delay in having such process issued and served. No evidence was introduced by appellees upon the trial to show either due diligence on their part or that they or their counsel had a reasonable excuse for the delay in the issuance and service of process upon appellants for a period of more than four years and five months. Hence there was no need for the submission to the jury of any issues on “due diligence” or “reasonable excuse” since such questions were conclusive against appellees as a matter of law. Ricker v. Shomaker, 81 Tex. 22, 16 S.W. 645; Austin v. Proctor, Tex.Civ.App., 291 S.W. 702, 704, no writ history; Buie v. Couch, supra; Landers v. Jordan, Tex.Civ.App., 126 S.W.2d 677, 680, no writ history.

The Trial Court erred in refusing to grant appellants’ motion for instructed verdict and motion for judgment non obstante veredicto since under the uncontradicted evidence four years and five months had elapsed before service of process upon appellants and therefore appellees’ cause of action was barred by the provisions of Art. 5529, V.C.S. Appellants’ second point of error is sustained.

In addition, appellees’ cause of action is barred by the four year statute of limitations for the reason that the evidence conclusively shows that John Lyssy, the plaintiff in Cause No. 7768, discovered the alleged fraud of H. J. McMullen in procuring the mineral deed more than four years prior to the institution of this suit as urged in appellants’ fourth point of error.

John Lyssy, who was the sole witness on behalf of appellees as to the facts and circumstances surrounding the execution and delivery of the mineral deed to H. J. Mc-Mullen in 1930, testified in substance on direct examination that he knew in 1938 or 1939 that the instrument he executed was not an oil and gas lease and that he and his neighbors discussed at that time that they had been cheated on the deal but that he did not file a suit in 1938 or 1939 because he thought McMullen would come back and do something about it, and that in 1945 when some men wanted to lease his land for an oil and gas lease he was “scared to lease it” because “McMullen had it.”

On cross examination the witness testified that in 1950 he knew that various wells had been drilled on leases belonging to neighbors in the immediate vicinity of his property, that McMullen promised him that he would drill a well the first year but that he did not believe McMullen when he said it; that after eight years he was still hoping that McMullen would come in and drill it. He also testified on re-direct examination that he would have been entitled to receive Vioth of all of the oil produced on his land in addition to the $62.50 which he had received from McMullen at the time of the execution of the mineral deed which he was glad to receive because “it looked like a whole lot of money at that time.”

The statements made by the witness John Lyssy constituted judicial admissions since he was one of the original plaintiffs in Cause No. 7768, although he conveyed his mineral interest in the land in question to appellees after suit had been filed.

It is fundamental law that a statute of limitations begins to run from the time that (1) the fraud is discovered or (2) from the time it might have been discovered by the use of reasonable diligence or (3) from the time of the possession of such information as would cause a reasonably prudent person to investigate and discover the fraud. Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810. Applying this rule to the admissions of John Lyssy above set forth, it is apparent that he knew in 1938 or 1939 that he was “cheated” and that he knew in 1945 that he could not lease the land because “McMullen had it.” Additional testimony of the witness John Lyssy clearly shows that he might have discovered the alleged fraud by the use of reasonable diligence and that he possessed such information as would cause a reasonably prudent person to investigate and discover the alleged fraud as late as 1950 when he knew of the wells which had been drilled upon the properties of his neighbors in the immediate vicinity of his land under mineral deeds to Mc-Mullen similar to the one which he executed, which neighbors had been present at meetings where discussions took place concerning their having been “cheated” by McMullen.

There is a striking similarity between the facts in the case at bar and in McMullen Oil and Royalty Co. v. Korzekwa, Tex.Civ.App., 344 S.W.2d 525, error ref., N.R.E., where an original action was filed on September 2, 1955 by Clemens Swierc and' twenty-three other plaintiffs to cancel twenty-four mineral deeds delivered in 1929 toll. J. McMullen because of the alleged fraud of McMullen in representing that the-deeds were only oil and gas leases and that if drilling operations were not begun in one year all interest would revert to the grantor. Incidentally John Lyssy testified' that Clemens Swierc was one of his friends-who went to see a lawyer in 1951 about his being cheated by McMullen.

The Trial Court ordered a severance of Swierc’s suit from the main suit as in the instant case but instead of filing suit Swierc quitclaimed his interest to Korzekwa who filed suit on April 25, 1958 for cancellation on the same allegations asserted by Swierc. There was a jury trial as in the instant case in which many of the issues submitted to the jury were almost identical with the issues submitted in the case at bar, resulting in a judgment rendered by the Trial Court cancelling the deed. As here, appellants pleaded the four year statute of limitations and at the close of the testimony moved for an instructed verdict and after the verdict was read moved for judgment non obstante veredicto, both of which motions were overruled.

The Court of Civil Appeals, having held that although title to the mineral interest was transferred during the pendency of the suit by the original plaintiff to the appellees, the case should be treated as though Swierc was the actual party to the suit, ruled that since the uncontradicted evidence showed that Swierc had discovered the fraud more than four years before filing the suit, the motion for judgment non obstante veredicto should have been granted since the four year statute of limitations was applicable and reversed and rendered the cause.

Appellants’ third, fourth and fifth points of error are sustained. It is clear from the uncontradicted evidence that John Lyssy discovered the alleged fraud more than four years before instituting his suit or that he was in possession of such facts that by the use of ordinary diligence as a reasonably prudent man he would have discovered the alleged fraud more than four years before the filing of the suit and therefore ap-pellees’ cause of action is barred under the provisions of Art. 5529, V.C.S.

In view of our holding that appellees’ cause of action is barred by Article 5529, V.C.S. it is unnecessary to pass upon the remaining points of error set forth in appellants’ brief. The judgment of the Trial Court is reversed and judgment here rendered that appellees take nothing by their iuit.

Reversed and rendered.


source: Caselaw Access Project

author: RICHARDS, Justice.

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. C. E. DUNCAN, Appellee.
    No. 10921.
    Court of Civil Appeals of Texas. Austin.
    Jan. 17, 1962.
    Rehearing Denied Feb. 7, 1962.

      ■ Strickland, Wilkins, Hall & Mills, Mission, for appellant.
    James E. Little, Edinburg, Wm. J. Con-don, Mercedes, for appellee.
   RICHARDS, Justice.

Suit was brought by C. E. Duncan, ap-pellee, against the Missouri Pacific Railroad Company, appellant, to recover damages caused by delay in the transportation of a car of cauliflower delivered to appellant at Donna, Texas for transportation in interstate commerce to Cincinnati, Ohio. The shipment should have arrived in Cincinnati for the market of February 3, 1958 but was admittedly delayed one day in transportation and arrived and was available for the market on February 4, 1958. Since it was agreed that the cauliflower was in good condition both when delivered to appellant at the point of origin and upon its arrival and delivery to the consignee at Cincinnati, the sole issue was whether there was a market decline in the value of the shipment on the Cincinnati market 'from February 3, 1958 to February 4, 1958.

The case was tried before a jury upon special issues who found that there was ax market decline of 50 cents per crate between February 3 and February 4, 1958'- and accordingly judgment was entered ini favor of appellee in the sum of $210.60. Motion for new trial having been overruled, appellant excepted to the judgment and' perfected its appeal to this Court.

Since this was an interstate shipment, the liability and the measure of damages are to be determined by the Interstate-Commerce Act and the decisions of the-courts of the United States construing it.. Missouri Pacific Railroad Company v. H. Rouw Company, 258 F.2d 445, 446, cert. den. 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302 rehearing denied 359 U.S. 932, 79 S.Ct. 605, 3 L.Ed.2d 634; Rio Grande & E. P. R. Co. v. T. A. Austin & Co., Tex.Com.App., 25 S.W.2d 306, 307. The measure of damages-applicable if there was a decline in the reasonable cash wholesale market value of the cauliflower from February 3 to February 4, 1958, is the difference between the reasonable cash wholesale market value of the cauliflower on the Cincinnati market on February 3, 1958 and its reasonable cash-wholesale market value on the same market on February 4, 1958. Pennsylvania R. R. Co. v. Wm. H. Muller & Co., 4 Cir., 15 F.2d 535, 539, cert. den. 273 U.S. 748, 47 S.Ct. 449, 71 L.Ed. 872. The same measure-of damages is applicable under Texas decisions. Texas & P. R. Co. v. Nicholson, 61 Tex. 491; Missouri K. & T. Ry. Co. of Tex. v. Webb, 20 Tex.Civ.App. 431, 49 S.W. 526, 531, no writ history; Meyer v. Thompson, Tex.Civ.App., 284 S.W.2d 384, 387, error ref. N.R.E.; 11 Tex.Jur.2d Sec. 507.

Plaintiff’s appeal is based upon two points of error, the first being that the Trial Court erred in overruling appellant’s motion to strike the opinion testimony of C. E„ Duncan, appellee, as to the reasonable wholesale cash market value of the cauliflower on the Cincinnati market on February 3 and 4, 1958, since appellee’s testimony as to the reasonable cash wholesale market value of the cauliflower was based solely upon the price which he received for it and therefore incompetent.

Appellee testified on direct examination that in his opinion the reasonable cash wholesale market value of the cauliflower on February 3, 1958 was $3.00 per crate and on February 4, 1958 was only from $2.00 to $2.25 per crate and his testimony was based on what the cauliflower brought him and that was the value of it “what I got out of it”, since his idea of market value was what he sold it for. He admitted that the consignee started the sale of the cauliflower on February 4 and that a period of ten days was required to sell it. He further testified that the value of the cauliflower on February 4, 1958 was from $2.00 to $2.25 per crate because it would be more difficult to sell a whole carload on that date and that was the reasonable wholesale market value and that forty crates of his cauliflower were sold at Cincinnati on February 4th at $3.00 per crate.

Upon cross examination the witness was asked that if he felt that the sale of the whole carload would have something to do with the market value, why did he give the market value for just a crate, to which the witness answered that he didn’t have a crate to sell, he had the whole carload to sell. The witness was asked in how many instances in his experience was a solid carload commodity sold at destination by the consignee to one buyer, to which he answered that “they were not sold to one buyer” but to groups of buyers since if they were sold at one sale it would be direct to some chain store.

On further cross examination Duncan testified as follows:

“Q Do you have any' record as what those quotations were on size 16 cauliflower?
“A On the third. There wasn’t any quotations, but normally the 14s and 16s bring the same money in the Cincinnati market.
“Q Do you remember whether or not on February 4th, 1958, Texas cauliflower, and these crates of this character, size 14s and 16s, were quoted as Three Dollars a crate, Mr. Duncan?
“A On what date ?
“Q On February 4th, 1958?
“A It could have been, but then I don’t remember. I don’t have it.
“Q In order to refresh your memory, I will hand you a certified copy of the U.S.D.A. market report on Cincinnati for February 4, 1958, and I will ask you to state whether or not by examining that and using it to refresh your memory you can state what the quoted market prices of cauliflower of this size and this type of crates were on the Cincinnati market on February 4, 1958?
“A Cauliflower: About steady Long Island type crts Calif 12s 3.75-4.00 Tex 12s 3.50-3.75 few high as 4.25 few 3.25 14-16s 3.00.
* ⅜ * ⅝ * *
“Q What was the market quoted price there by the U.S.D.A. on February 3rd, 1958, for size 14 or 16s?
“A February 3rd?
“Q Yes, sir.
“A Cauliflower: About steady Long Island type crts Calif 12s 4.25 Tex. 12s 3.50-4.25 Mostly 3.50-3.75 14s best 3.00 fair cond 2.50.
“Q So, they agreed with you on the third; didn’t they ?
“A Well, yes.
“Q And you didn’t agree with them on the 4th ?
“A I didn’t because I had cauliflower that sold for less money according to the inspection. It was good cauliflower.
“Q But, you still based your price on what your cauliflower was sold?
“A Yes, sir.”

On re-direct examination when reminded that he had stated that in his opinion the value of the shipment on February 4th was $2.00 and $2.25 per crate he was requested to explain why there was any difference in the fact that forty of the crates sold for $3.00 each but the value of the entire shipment was $2.00 and $2.25 per crate, to which the witness answered that the value was based upon the entire car and not just the crates that were sold on that particular day.

Appellant’s counsel then moved to strike appellee’s testimony as to the reasonable cash wholesale market value of the cauliflower on the Cincinnati market both on February 3 and February 4, 1958 upon the ground that it was apparent that appel-lee had testified only as to what he received for his cauliflower which was not the true test of market value, which objection was overruled.

It is a general rule of law that an account of sales alone is incompetent to establish the reasonable cash market value of a shipment in the condition and on the date of its arrival. Rio Grande & E. P. R. Co. v. T. A. Austin, supra; Thompson v. A. J. Tebbe & Sons Co., Tex.Civ.App., 241 S.W.2d 627, 632; Reider v. Thompson (U.S.C.A. 5th) 197 F.2d 158, 160. It is manifest from appellee’s testimony that his conception of reasonable cash market value was based solely upon the price which he received at Cincinnati from the sale of his cauliflower commencing February 4, 1958 over a period of ten days as shown by his account of sales and that he had no other knowledge of the wholesale cash market value for cauliflower at Cincinnati on either February 3 or February 4, 1958 except as shown in the U. S. Department of Agriculture Market Reports, which he admitted were the best guide on market values.

Opinion evidence based solely upon the price which appellee received for his shipment was plainly inadmissible to prove or establish market value and therefore the Trial Court erred in overruling appellant’s motion to strike such evidence. It is our opinion that in considering their answers to the special issues as to reasonable cash market value the jury was influenced by such inadmissible evidence to the prejudice of appellant and therefore appellant’s first point of error is sustained.

For its second point of error appellant urges that the finding of the jury that the reasonable cash wholesale market value of the cauliflower on February 4, 1958 showed a market decline of fifty cents per crate is against the overwhelming weight and preponderance of the evidence.

In the charge the Court defined reasonable wholesale cash market value as follows:

“By the term reasonable cash wholesale market value as used in this charge is meant the prevailing cash wholesale market price on the market in question established by sales of cauliflower of similar quality and condition by buyers willing to buy but not required to do so and by sellers willing to sell but not required to do so.”

The jury found that the reasonable cash wholesale market value on February 3rd was $3.00 per crate and on February 4th was $2.50 per crate.

The evidence as to reasonable cash wholesale market value of the cauliflower on February 4, 1958 consists of the testimony of appellee Duncan, certified copies of the United States Department of Agriculture Market Reports on the Cincinnati market for the period beginning February 3 through February 10, 1958 and the testimony of appellee’s witnesses D. C. Buell and Louis Budde.

Since the testimony of appellee concerning the market value of the cauliflower on February 4th has been fully discussed supra it is necessary to examine the other evidence offered by appellee to establish reasonable cash market value of the commodity on February 3 and February 4, 1958.

The United States Department of Agriculture Reports showed the quoted prices of size 14 — 16 cauliflower on the Cincinnati market for February 3, 1958 as “best $3.00; fair cond. $2.50.” The reports for the sales on February 4, 1958 showed $3.00 per crate. The market reports, being United States Government Reports, are admissible in evidence under Art. 3731a, Vernon’s Ann.Civ.St. They are also admissible on the issue of value as published market reports. Gulf, Colorado and Santa Fe Ry. Co. v. Hellis, Tex.Civ.App., 320 S.W.2d 687, 690, no writ history; 25 Tex.Jur.2d Sec. 321.

The deposition of the witness Louis Budde was offered in evidence, part by ap-pellee and part by appellant. Budde was the traffic manager for Degaro Co. of Cincinnati, the consignee of the shipment. Budde testified that in his opinion the reasonable cash wholesale market value of the cauliflower at Cincinnati on February 3, 1958 was from $3.00 to $3.25 per crate and if it had arrived for market on the 3rd instead of the 4th it would have sold for approximately fifty cents per crate more since Monday (February 3) was the best day for sale when they could have sold at least 75% of the car; that most of the sales from the car were from February 4 to February 6 and that there were approximately 35 purchasers of the cauliflowers during the period of February 4 to February 14. He further stated that he had no independent recollection concerning the market value on the Cincinnati market other than from the United States Department of Agriculture reports and that the market value was greater on February 4, 1958 than it was at any time thereafter up to and including February 14, 1958, during which time the cauliflower had deteriorated. On cross examination Budde stated that the reasonable cash wholesale market value on February 4, 1958 was approximately $2.75 to $3.00 per crate.

D. C. Buell, a witness for appellee, stated that he had not personally observed any sales in Cincinnati other than “side walk sales”; that he had made a memorandum of his review of the market values a day or so before preceding the trial because he could not retain market values in his mind for two or three years which review consisted of market reports including the United States Department of Agriculture Reports, prices current in the New York Reporter and his own records. Mr. Buell was employed by the H. Rouw Company but did not testify that his employer had any cauliflower for sale on the Cincinnati market at or near the dates in question.

Buell testified that the reasonable cash wholesale market value for size 16 cauliflower on the Cincinnati market on February 4, 1958 was only from $2.25 to $2.75 per crate while on February 3 it was from $3.00 to $3.25 per crate. On cross examination he stated that in arriving at his opinion as to the market value of cauliflower at Cincinnati on February 4, 1958 he understood that the grades of cauliflower actually sold on that date brought $3.00 per crate.

The witnesses Budde and Buell each admitted that he had no independent recollection as to the reasonable cash wholesale market value of the cauliflower at Cincinnati on either February 3 or February 4, 1958, based on actual sales on either of those dates, except for appellee’s forty crates which were sold and brought $3.00 per crate, and that their opinions were based on the United States Agriculture Department published market reports for those dates.

It is within the province of this Court to determine the sufficiency of the evidence to support the findings of the jury. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 358. The jury’s finding that the reasonable cash wholesale market value on February 3, 1958 was $3.00 per crate while on February 4, 1958 it was $2.50 per crate is in our opinion so contrary to the great weight of the testimony as to he clearly erroneous. Appellant’s second point of error also is sustained.

The judgment of the Trial Court as to the cause of action asserted by appellee in the third count of its petition is reversed and this cause is remanded for a new trial of such count.

Reversed and Remanded.


author: McNEILL, Justice.

text:
    NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. Jeraldine M. ROMERO, Appellee.
    No. 6509.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1962.
    Rehearing Denied Feb. 7, 1962.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    Baker, Lamson & Plessala, Port Arthur, for appellee.
   McNEILL, Justice.

The action was one by appellee as the beneficiary to recover upon a policy of life insurance issued by appellant upon the life of appellee’s husband. Appellant defended on the ground that at the time the application for the policy was taken and at the time of delivery of the policy to insured he was in ill health, and that insured did not give truthful answers to questions asked in the application relative to his health.

Upon trial to a jury, it found that appellant’s soliciting agent was truthfully advised as to insured’s ill health and sickness, and that he had recently received treatment in Galveston. It further found that the agents failed to correctly record this information in the application and further that insured and beneficiary failed to read the application because they relied upon the agents to correctly record their answers thereto; that insured and benficiary had no reason to suspect that the agents would not correctly record their answers in the application. Judgment was entered upon the jury’s verdict in favor of appellee for the proceeds of the policy, interest, penalty and attorneys’ fees.

The application was executed by insured on April 26, 1960, the policy was issued May 9, 1960, and insured died October 1, 1960. The policy provided, “This policy shall take effect on the date of issue, provided the insured is then alive and in sound health, hut not otherwise.”

Appellant contends that since the policy contains the provision quoted above, and since at all times between the date of the application and issuance and delivery of the policy insured was in bad health, suffering from diseases that caused his death, the judgment should be reversed and rendered in its behalf. This contention should be sustained. We have read the several cases cited by appellant and appellee as well as many others, and it has been difficult to reach a definite conclusion from them. Appellee strongly emphasizes the case of Terry v. Texas Prudential Insurance Co., Tex.Civ.App., 77 S.W.2d 761. The basis of that holding is that since the soliciting agent is the agent of the insurance company and not the insured (see Art. 21.04, Insurance Code, V.A.T.S., formerly Art. 5063, R.S. 1925), and since both the insured and the beneficiary in that case truthfully advised the agent of the bad health of the insured, notice to the agent received in the discharge of his duties within the scope of his employment is notice to his principal and the issuance by it of the policy growing out of that transaction is a waiver of the requirement in both the application and policy that the applicant be in good health and the company is estopped to assert insured’s true condition. There are several Courts of Civil Appeals cases which have followed this holding, one of which is American National Ins. Co. v. Mays, Tex.Civ.App., 97 S.W.2d 975. To like effect are Washington National Ins. Co. v. Brock, Tex.Civ.App., 60 S.W.2d 861 (w. r.); American National Ins. Co. v. Park, Tex.Civ.App., 55 S.W.2d 1088 (w. r.).

Appellant principally relies upon the case of Willis v. Texas Prudential Ins. Co., Tex.Civ.App., 101 S.W.2d 857 (w. r.). It asserts that since the policy in the present case contained the clause, “No agent shall have the power or authority to waive, change or alter any of the terms or conditions of this policy, nor shall it be changed in any manner except by endorsement signed by the President or Secretary,” and also contained the provision that the policy shall not be in effect unless on its date of issue the insured is alive and in sound health, similar in all respects to the provisions in the Willis case, that case controls. Whether the cases first cited conflict with the Willis case we need not decide. The later case of Great National Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602, we think, controls the present one. There the soliciting agent read the question in the application to the applicant whether she had heart trouble, to which she answered “yes”. Bell, the agent, did not write such answer in the application but without applicant’s knowledge wrote “No” as the answer. The policy was delivered upon this application and insured died shortly thereafter. The court held that Bell had no authority from the company, since he was merely a soliciting agent, to make an insurance contract and therefore no agreement made by him or fraud perpetrated or knowledge possessed by him would modify the good health stipulation contained in the policy. Upon the question of whether notice of knowledge of ill health to the soliciting agent is notice to the company, we quote the following from this case:

“It cannot be said that the company, in issuing the policy and having Bell to deliver same, consented to modify said stipulation by excepting heart trouble from the scope of its operation. This is so for the reason that in issuing the policy and causing its delivery, the company was ignorant of the fact that Mrs. Hulme had heart trouble, and the company did nothing to signify that it consented to such a modification.”

This quotation fits the present case; therefore, the judgment below is reversed and judgment here rendered for appellant.

ON MOTION FOR REHEARING

In her motion for rehearing, appellee seeks to distinguish the Hulme case from her cases on the basis that the issues of waiver and estoppel were not involved in the Hulme case. While the opinion of the Supreme Court, 134 Tex. 539, 136 S.W.2d 602, does not disclose these issues, it will be seen -from the report of the opinion of the Court of Civil Appeals, 116 S.W.2d 459, that these issues were involved practically as in the instant case.

The motion is overruled.


author: ARCHER, Chief Judge.

text:
    J. Donald ABEL et ux., Appellants, v. G. R. BRYANT et ux., Appellees.
    No. 10906.
    Court of Civil Appeals of Texas. Austin.
    Jan. 3, 1962.
    W. B. Traynor, Austin, for appellants.
    Black & Stay ton, Austin, for appellees.
   ARCHER, Chief Judge.

This suit is for a mandatory injunction and involves the construction of restrictive covenants and conditions affecting adjoining lots.

The 98th District Court of Travis County, Texas entered an order requiring appellants J. Donald Abel and wife, defendants below, to permanently remove two Westinghouse air conditioning compressor and condensing units from their present location within five feet of the common boundary line between appellants’ and appellees’ lots, and if appellants elect to relocate and maintain said units on their property, to permanently relocate and maintain 'both' of said units at some place thereon more than five feet in distance from such common boundary line, to which order J. Donald Abel and wife duly excepted and gave notice of appeal.

The Trial Court made findings of fact and conclusions of law to the effect that the units are closer than five feet to the common boundary line and are of sufficient dimensions to obstruct the view and prevent free passage along the area within five feet of the boundary; that the restrictions are mutual and that plaintiffs are entitled to enforce them and prohibit the location of structures closer than five feet; and that the units are structures within the meaning of that term as used in the restrictions.

The appeal is founded on six points and are to the effect that the Trial Court erred in finding that the air conditioning units are structures and not fixtures; in ordering their removal from their location; in holding that the location of the units are within five feet of the common boundary line and constitutes a material violation of the restrictive covenants and constitutes a nuisance to plaintiffs; that the plaintiffs having erected physical improvements which extend beyond the limits of the property set-back line, which constitutes a material violation of the restrictive covenants, are estopped to complain of violations on the part of defendants; in holding that noise and heat emanating from the units constituted a nuisance.

On October 16, 1957 appellants purchased Lot No. 24, Block Y, Section 8 (originally known as Lot 5, Block H, Section 2), and employed an architect to prepare plans for the erection of a residence on their lot, which were accepted.

Appellants’ lot adjoins and lies southwesterly from appellees’ lot, sloping sharply in a southeasterly direction. The appellants’ residence is a two-story structure. There is a 7-foot-high board fence on appellants’ property along and within 6 inches of the common line.

The condensing units, the subject of this case, are made of steel and are 3 feet square and 31 inches high, resting on cement foundations about 3 feet apart and about 2 feet from the boundary line.

The Balcones Park Addition is impressed with certain covenants and restrictions applicable to all lots therein and the lots herein involved. The side lot set-back provisions read as follows:

“7. Set-back, front line, Side Line and Rear Line. No structure shall be located or erected on any lot nearer to the front plot line than twenty-five (25) feet, nor nearer than five (5) feet to any side plot line, except that the total combined set-back from both sides shall in no event be less than fifteen (15) feet, nor nearer than twenty (20) feet to the rear plot line.”

Appellees alleged that appellants had violated this restriction and also that the noise, heat, fumes and leakage caused by and emanating from such units would annoy them and detract from the enjoyment of their property and sought a restraining order and a mandatory injunction requiring appellants to remove the units.

Appellants’ position, admitting that the units are closer than five feet to the boundary line, contend that the units do not constitute structures within the meaning of the restrictive covenants and are not a material violation thereof and alleged that the front steps leading to appellees’ house extend at least three feet beyond the twenty five foot front set-back line and pleaded that appellees are estopped to complain of similar violations.

Appellants do not challenge the legal conclusions 2, 3, 8 or 9 above mentioned or that the units are located within five feet of the common boundary line. The only question here involved is whether the units are structures within the terms of the restrictions.

The word structure has been defined as:

“The word ‘structure’ is often used in a broad sense, often in a restricted sense. The broad definition is that quoted in Favro v. State, 39 Tex.Cr.R. 452, 46 S.W. 932, 73 Am.St.Rep. 950: ‘Any production or piece of work artifically built up, or composed of parts joined together in some definite manner; any construction.’ In a restricted sense ‘structure’ means: ‘A building of any kind, chiefly a building of some size or magnificence; an edifice’. 60 C.J. 666.” Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506.

We believe that the Trial Court was justified in finding that units are “structures” under the foregoing broad definition and constitutes a material violation of the set-back restriction.

Appellees advised appellants’ architect when the cement pads were being laid for the units that the proposed location of the units constituted a violation of the restrictions and objected to it. Later on J. C. French, an agent for Bryant, discussed the matter with appellants and the objection was ignored. The suit was filed before the units were moved onto the property. It is apparent that appellants knew that there was serious objection to the location of the units before they were placed on the pads.

We do not believe that the question of estoppel is a determining factor in this case. The steps and handrail do not in anywise interfere with the view and are no more than an ornamental structure, fence or wall and are not structures of such nature as to violate the set-back restrictions, nor does the sprinkling system as installed in appellees’ yard, violate the restrictions.

The improvements, including the residence and the walk, handrail and the sprinkler system had been completed and installed on the premises now owned by appellees prior to the building by appellants of their residence and improvements, and appellants were aware of the existence of the walk, handrail and sprinkler system, situated on the front area of appellees’ property. It was not shown that appellants placed reliance on the fact that the walk, etc. were within the 25-foot set-back restriction and estoppel is not available to appellants. There was no evidence that such installations constitute a nuisance.

The judgment of the Trial Court is affirmed.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    PETE-RAE DEVELOPMENT COMPANY, Appellant, v. STATE of Texas, Appellee.
    No. 3642.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 19, 1962.
    Rehearing Denied Feb. 9, 1962.

      William H. Shireman, Corpus Christi, for appellant.
    C. Edwin Prichard, Jr., Asst. County Atty., Corpus Christi, for appellee.
   GRISSOM, Chief Justice.

The State of Texas instituted condemnation proceedings against a portion of the parking lot of a shopping center owned by Pete-Rae Development Company. There was an appeal from the award of the commissioners to the County Court. From a judgment awarding compensation for the land taken but refusing to award damages to the land not taken, the land owner has appealed.

At the conclusion of the State’s evidence said company moved for a dismissal of the case on the ground that the State had failed to prove a jurisdictional requirement in that it had failed to prove that a bona fide effort was made to agree with the land owner on the amount of damages and that the effort failed. Said motion was overruled. Appellant’s first point is that the court erred in overruling said motion. Appellant has presented to this court only excerpts from the testimony. However, if we should treat the evidence presented as all the evidence pertinent to said question, we would be compelled to hold that such failure is not established. Although there may be testimony which raised the issue that the person making the offer to the land owner was not authorized by the Commissioners’ Court to make it, nevertheless, we conclude that, at most, it was a question of fact. It was not submitted, nor was its submission requested. Mr. Bowers, the right of way agent for Nueces County, testified, in effect, that with authority from the Commissioners’ Court of said county, his office did negotiate with appellant with reference to acquiring the portion of its parking lot in controversy; that, acting under the authority of said Court, an effort was made to agree with appellant on the acquisition of said right of way; that an offer was made for this particular property and it was rejected by appellant; that the offer made to appellant by said agency, under the authority of said Commissioner’s Court, was, presumably, based upon an appraisal made by Givens & Moore; that appellant knew of said appraisal and of an appraisal made by Mr. Legge, who had experience in appraising shopping centers; that appellant offered to settle on the basis of Legge’s recommendation but the right of way agent for the county refused to make an offer based on Legge’s recommendation. He testified that he did make an offer to appellant and that appellant rejected it; that he had authority from the Commissioners’ Court to negotiate with appellant; that he had authority to acquire the right of way. Much of the confusion resulting from the vague answers of said right of way agent, from which appellant concludes that it is established that the right of way department did not have authority to act for the court may, we think, be explained by the fact that said agent was attempting to make it plain that no one had authority to make an offer based on Legge’s recommendation. We conclude that the evidence does not establish that the offer made and rejected was not authorized. Appellant’s first point is overruled.

Appellant’s second point is that the court erred in overruling, and refusing to hear evidence upon, a motion for new trial containing allegations of jury misconduct. Under Rules of Civil Procedure, rule 327, such a motion must contain allegations of fact that constitute misconduct. Some overt act of misconduct must be alleged. The gist of the complaint was that the jury was guilty of misconduct because some of them misconstrued the charge and the court’s answer to a question submitted by the jury. In Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364, our Supreme Court held that an express misconstruction of the charge, which did not bring to the attention of the jury law or facts outside the record, did not constitute jury misconduct within the meaning of Rule 327. Because the facts alleged did not show jury misconduct within the meaning of said rule the court did not commit reversible error in refusing to hear testimony relative thereto. In Zamora v. Zamora, Tex.Civ.App., 260 S.W.2d 604, (Writ Ref.), it was held that where there was no affidavit showing the commission of an “overt act of jury misconduct”, and the allegations of misconduct related to the reasoning processes by which the jury arrived at its verdict, the trial court did not abuse its discretion in refusing to hear testimony on such motion. The court’s action is also supported by the decision of our Supreme Court in Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483. The fact that jurors did not understand the charge or misapplied the law is not jury misconduct. Texas Employers’ Insurance Ass’n v. Eubanks, Tex.Civ.App., 294 S.W. 905, 909, (Writ Ref.); Bradley v. Texas & Pacific Railway Co., Tex.Com.App., 1 S.W.2d 861; Meyer v. Gillespie County, Tex.Civ.App., 109 S.W.2d 220, 221, (Writ Dis.); Kuykendall v. Johnson Funeral Parlor, Tex.Civ.App., 38 S.W.2d 601, 604.

Appellant’s last point is that the court erred in entering judgment nunc pro tunc after the term at which the case was tried because it had not rendered judgment during that term. A jury verdict that was plain and simple and could result in but one judgment was received at one term. Due to the press of business and without fault of the State, the trial court did not reach the matter of rendering judgment at the term the verdict was returned. A few days thereafter, at the next term, the court both rendered and entered the only judgment which could have been rendered on said verdict. In Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961, our Supreme Court held that a prevailing party should not be deprived of his legal right to a judgment on a verdict by the failure or neglect of the court to render judgment during the term; that, where a case was ripe for judgment before the end of the term at which it was tried, a judgment might be both rendered and entered nunc pro tunc at the next term.

All of appellant’s contentions, ably presented by its distinguished .counsel, have been carefully considered. They are overruled. The judgment is affirmed.


author: YOUNG, Justice.

text:
    John F. WATERS, Appellant, v. Frank H. KING, Guardian Estate of Christine W. Dinkins, Appellee.
    No. 15934.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 29, 1961.

      Virgil R. Sanders, Fleming A. Waters, Dallas, for appellant.
    W. H. Frank Barnes, Terrell, for appel-lee.
   YOUNG, Justice.

Invoking provisions of Art. 220(b) Probate Code, Vernon’s Ann.Civ. St. appellant sought removal of Frank H. King as guardian of the person and estate of Christine W. Dinkins, and for appointment of himself as such guardian, asserting a superior right. He was a nephew of this ward. On hearing of the application to the Probate Court of Kaufman County and in turn to the District Court, the same was denied with this appeal from the latter judgment. A somewhat fuller statement of the antecedent facts other than those presented by appellant is now made.

On August 12, 1958 Frank H. King was appointed guardian of the person and estate of Christine W. Dinkins, a person of unsound mind, and duly qualified as such guardian. Frank H. King was related to the ward as a second cousin once removed. On July 27, 1959 Fleming A. Waters, brother of appellant and likewise a nephew of the ward, filed an application in the County Court of Kaufman County, seeking a removal of Frank H. King as such guardian and for appointment of himself, the claim being based on his prior right. Upon hearing, the petition was denied on August 7, 1959 with no appeal to the District Court for a trial de novo. On the 11th day of August 1959, appellant John F. Waters, brother of Fleming A. Waters filed the instant petition in the County Court of Kaufman County claiming a similar prior right as already stated, which petition was denied September 8, 1959; and on trial de novo in District Court being denied on September 23rd, 1960 with judgment to that effect entered on December 9, 1960. At request of appellant, the trial court filed findings of fact and conclusions of law, and no assignment of error is made, by him to these findings of fact as to sufficiency of the evidence in support of same. Appellant in his motion and application made no contention that Frank H. King had violated his trust in any way and did not seek to remove him for cause.

These points of appeal urge court error (1) “in refusing the application of John F. Waters to have the letters previously granted to Frank H. King as guardian of the person and estate of Christine W. Din-kins revoked and in refusing to order the County Court to issue letters to the applicant;” (2) “in its holding that John F. Waters had waived his prior right to be appointed guardian of the person and estate of Christine W. Dinkins;” (3) “in holding that John F. Waters is estopped to urge his prior right to be appointed guardian of the person and estate of Christine W. Dinkins.” Appelleee has interposed appropriate counterpoints.

Art. 220(b) Probate Code provides in part: “Where letters have been granted to one, and another whose right thereto is prior and who has not waived such right and is qualified, applies for letters, the letters previously granted shall be revoked and other letters shall be granted to the applicant.’’ While initially the right of appellee to this appointment was subordinate to that of appellant, such priority may be waived by conduct as well as by express declaration. Vannoy v. Gibson, Tex.Civ.App., 102 S.W.2d 492; 13 Tex.Jur. p. 665.

Above mentioned findings are quoted in greater part: “That applicant herein, John F. Waters, knew that the said Christine W. Dinkins was of unsound mind to the extent that she was unable to take care of business approximately 8 years prior to the time hearing was had on his application as above set forth.” * * * “That Christine W. Dinkins had been residing with Fleming A. Waters for many years and had never lived or resided with John F. Waters, applicant herein.” * * * “That the said John F. Waters after he learned that the said Christine W. Dinkins was of unsound mind to the extent that she could not look after her own business affairs authorized his brother, Fleming A. Waters, to do whatever was necessary to take care of her interest.” * * * “That the said Fleming A. Waters requested that the said Frank H. King to file an application to be appointed guardian of the person and es-state of Christine W. Dinkins and agreed his appointment should be made.” * * * “That the said John F. Waters, applicant herein, knew that Frank H. King was paying Fleming A. Waters money out of the estate of Christine W. Dinkins for her care and support.” * * * “John F. Waters, applicant herein, had been living in Dallas County for many years and had visited in Terrell on frequent occasions, that Terrell is in Kaufman County where said guardianship was pending and all of these proceedings had.” * * * “That for approximately 8 years prior to this hearing John F. Waters knew Christine W. Din-kins was incapable of transacting her business because of her mental condition and during that time he never made any inquiries as to what was being done but left it entirely to his brother, Fleming A. Waters, to do whatever was necessary.”

Since these findings of fact have not been challenged by any assignment of error, they stand as the proven facts in this case. Accordingly this court has no jurisdiction to go behind these findings and must accept them as supported by the evidence. Appellant’s points are obviously of no evidence to support the judgment rendered. “An assignment presenting only the question of no evidence, which is a ‘question of law’, does not invoke jurisdiction of the Court of Civil Appeals to decide sufficiency of the evidence to support a jury finding, which is a ‘question of fact’.” Liberty Film Lines, Inc. v. Porter, 136 Tex. 49, 146 S.W.2d 982. “No assignment of error having been made by the appellant in the Court of Civil Appeals on the ground of the insufficiency of the evidence to sustain the judgment of the trial court, the Court of Civil Appeals had no jurisdiction to pass upon that question.” Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166. However on reading the statement of facts, we find adequate factual basis for the judgment rendered.

Judgment of the trial court is accordingly affirmed.


author: WILSON, Justice.

text:
    Frank STEELE, Appellant, v. Harry W. SLADE and W. W. Brown, Appellees.
    No. 3971.
    Court of Civil Appeals of Texas. Waco.
    Jan. 4, 1962.
    Rehearing Denied Jan. 25, 1962.
    W. V. Dunnam, Jr., Sam Jones, Waco, for appellant.
    Conway, Walker & Brigham, Charles M. McDonald, Waco, for appellees.
   WILSON, Justice.

Summary judgment was rendered for defendants in a personal injury action in which plaintiff alleged she slipped and fell at the outdoor entrance to a physician’s reception room. Plaintiff pleaded the entrance consisted of a step-up from the sidewalk level, and “the edge of said step-up and the surface thereof for about two inches hack from said edge consisted of smooth, slick marble, and at about two inches back from said edge, said surface was covered with a slick metal strip which was about one-half inch higher than the surface of said step-up, rendering uneven the surface of said step-up where the front half of one’s foot would ordinarily step”; that the distance from the edge of the step-up to the entrance door was two or three inches; that the step-up was maintained in a slick condition; that it was “where one would ordinarily step at two different levels”; and that defendants’ negligence in so maintaining the entrance proximately caused damages sought.

Plaintiff, an invitee, testified by deposition that an injured daughter, whom she accompanied to the offices, opened the door for her; as she “went to go in the door,” she looked at the step, and she did see it. The surface was of tile or concrete, and was dry. There was no suggestion it was slippery or slick. She “saw the step, but thought it was larger.” She testified, “1 knew there was a step there and I knew that I’d have to step.” She was 73 years 'old, wore glasses, and her eyesight “does fairly well.” She had not been to the office before. Her evidence was “I don’t know what caused me to stumble”, and “I stepped up on a step going in the door and it wasn’t as deep — wasn’t as big as I thought it should be, and my foot slipped off and I fell.” To her it “looked like it was big enough to step on.” She said, “I just stepped up on it and my foot come off of it; it just wasn’t as wide — like I say, it just wasn’t what I thought it was.” The fall occurred about 10:00 A. M. There was no obstruction to plaintiff’s view of the entrance.

We think the court was correct in rendering summary judgment. Plaintiff’s testimony negatived a slick condition. There is no suggestion the metal strip or the entrance level contributed to the fall. She was asked to state what caused it. Her answer was that she looked and saw the step, but misjudged its width. The record negatives any hidden defect. The entire condition was open, obvious and clearly perceptible.

The owner of premises is not an insurer and has no duty to protect an invitee against alleged dangers which are clearly perceptible and obvious. McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940, 941. Duty of the owner “does not extend to those invitees who know or should know of the existence of the particular condition and who appreciate, or should appreciate its dangers.” McKee, General Contractor, v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 393.

Where the condition is open and obvious, is easily perceptible to the invitee, and there is no hidden defect, it is held no fact issue is raised. Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, 376. See also Contreras v. H. E. B. Grocery Co., Tex.Civ.App., 328 S.W.2d 469, 470, writ refused. The record shows only that plaintiff miscalculated, or made an erroneous estimate of what she saw before her. Affirmed.


author: COLEMAN, Justice.

text:
    Leland O. WEBB et ux., Appellants, v. Irene MITCHELL et al., Appellees.
    No. 13884.
    Court of Civil Appeals of Texas. Houston.
    Jan. 18, 1962.
    Wilson M. Rutherford, El Campo, for appellants.
    Willis & Willis, Geo. P. Willis, El Campo, for appellees.
   COLEMAN, Justice.

Appellees brought suit for partition of a certain tract of land located in Wharton County, Texas, naming as defendants Leland O. Webb and wife, Cora Spree Webb, First Bancredit Corporation and First National Bank of Edna. It was alleged that First Bancredit Corporation held a purported lien on a portion of the property by reason of an assignment of a mechanic’s lien contract.

By trial amendment additional causes of action were pled and new parties brought into the suit. The transcript does not show whether or not First Bancredit Corporation was served with citation and it filed no answer. The transcript contains no order of dismissal or severance of this party. The judgment entered by the trial court does not dispose of the cause of action alleged against First Bancredit Corporation, nor of the corporation as a party defendant, either directly or by implication. As a result the judgment is not final and we are unable to determine the merits of this appeal for want of jurisdiction. Holub v. Nortex Oil & Gas Corp., Tex.Civ.App., 330 S.W.2d 491; Sears v. Mund-Boilers, Inc., 328 S.W.2d 199, Tex.Civ.App., error ref.

The appeal is dismissed.


author: DAVIS, Justice.

text:
    Paige B. BAYOUD, Appellant, v. H. R. NASSOUR, Jr., Appellee.
    No. 7310.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1962.
    Rehearing Denied Feb. 6, 1962.
    James C. Tubb, Akin and Vial, Dallas, for appellant.
    Waller M. Collie, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, for ap-pellee.
   DAVIS, Justice.

The opinion handed down in this case on September 26, 1961, is withdrawn and the following is substituted in lieu thereof.

Appellant-plaintiff, Dr. Paige B. Bayoud, sued appellee-defendant, Dr. H. R. Nassour, Jr., seeking to establish a joint venture between appellant and appellee, and seeking to establish a constructive or resulting trust as to the purchase of eighteen acres of land in Dallas County. Appellant also sought to show that appellant and appellee operated an office for the practice of medicine for. a period of about six months and sought recovery of one-half of the expenses for said operation from the appellee. The appellee denied the existence of a joint venture with reference to the land. Appellee also denied the existence of any type of a joint venture arrangement with reference to the practice of medicine during the six month period, denying liability for the expenses of the operation of the office, and by cross-action sought to recover the money that he had advanced to the appellant during the six month period, claiming said payments were made as loans or advances and not as part payment of joint expenses incurred in the operation of the medical office.

The appellant alleged the existence of the joint venture, the agreement to purchase the land in the name of appellee, and that appellant would pay off and discharge one-half of any money paid for the land and offered to assume joint responsibility with the ap-pellee.

From the evidence in the case, appellee was practicing medicine in Hamilton, Texas, in 1954, and prior thereto. Both the appellant and the appellee are of Lebanese descent. The appellee was born and reared in this country and the appellant came here in 1946. In July, 1954, a Dr. Gebara, of Lebanese descent, was with appellant and they were in New York City. Dr. Gebara was acquainted with the appellee and placed a long distance call to him. Through this call, the appellee and appellant first met. The appellant came to Texas with the idea in mind of practicing medicine at Pasadena, Texas. After meeting appellee in Hamilton, quite a friendship culminated between the appellant and the appellee. In 1954, the appellant began practicing medicine in Dallas as the result of some form of agreement between appellant and the appellee. Thereafter, the appellee sold or gave away his hospital in Hamilton and bought a hospital in Garland, Texas, and the appellant and appellee entered into a partnership agreement and practiced medicine in Garland for some time. From the very beginning of the acquaintanceship of the appellant and appellee, there was some idea that a hospital and clinic would be built by them in Dallas, Texas. During the entire time of their acquaintanceship, they were looking for a tract of land upon which to build a hospital and clinic. There was offered in evidence an instrument in writing whereby the appellant and the appellee were going to purchase one tract of land jointly. The appellant testified that another instrument had been executed between the appellant and appellee, but it was lost. The appellant swore that he found the eighteen acres of land that was purchased in 1956 and contacted the appellee about the same. The appellee admitted in his testimony that the appellant had helped him look for property. The appellee admitted that the appellant had gone with him to look at the property, and he said that the appellant liked it. An agreement was made to buy the property for a price of about $35,000.00. The property was bought in the name of the appel-lee. He paid $5,000 down upon the property, and then paid an additional $10,000. They began to try to finance the building of a hospital and clinic upon the property. They decided to try to get one-half of the eighteen acres of land released from the lien. The appellant paid the sum of $5,-000.00 to get one-half of the property released.

A corporation was formed, and their relationship was so close that the appellant and the appellee both received the same number of shares in the corporation. One-half of the land was transferred to the corporation by the appellee. Each of the parties was issued 900 shares of stock at a supposed price of $10.00 per share, but no money or property was transferred for the issuance of the stock. One share was issued to an attorney, and the attorney later transferred the one share to the appellee.

The appellant also sued the appellee for damages to property that he had in the hospital at the time of the disagreement, and the trial court severed that from the main trial of the case and agreed to try it separately.

At the conclusion of the evidence offered by the appellant, the trial court granted appellee’s motion for an instructed verdict against the appellant on the land on the theory that the conveyance of the land to the appellee with the agreement that it be conveyed to him in his name constituted an expressed trust. The Texas Trust Act, Art. 7425b-7, has no application to the case at bar under the pleadings and the evidence. Under the pleading and evidence the only trust involved would be a constructive or resulting trust. See the cases hereinafter cited.

The case was tried before a jury. The jury returned a verdict in favor of the appellee according to some stipulations before the court to the effect that the appel-lee had loaned the appellant the sum of $3,-543.32 during the alleged partnership.

The trial court entered a judgment that •the appellant take nothing as to all or any part of the land, and that the appellee recover from the appellant $3,543.32.

The appellant brings forward five points ■of error. Under the pleadings and the evidence, the trial court committed an error in granting the instructed verdict. Because of the relationship of trust and confidence that had been created between the appellant and the appellee, the trial court should have sub■mitted issues to the jury on the question of whether or not a constructive or resulting trust was created as to the land. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Omohundro v. Matthews, Jr. et al., 161 Tex. 367, 341 S.W.2d 401; Holland v. Lesesne, Tex.Civ.App., 350 S.W.2d 859.

There was some conflicting testimony .about the $5,000 which was paid by the appellant to secure the release of the lien on one-half of the property. For the reasons stated by Judge Smedley in Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813, we think it appropriate to reverse the entire judgment of the trial court and remand ■the cause for a new trial. In the event the jury should find that such money was paid •to release the judgment and not as part of •the purchase price of the property, the appellant can, by appropriate pleadings, secure relief for the $5,000.00 that he paid.

The judgment of the trial court is reversed and the cause is remanded.


author: DIXON, Chief Justice.

text:
    Lowrey Franklin GRAVLEY, Appellant, v. Ruby Oleta GRAVLEY, Appellee.
    No. 15935.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1961.
    Rehearing Denied Jan. 19, 1962.

      Robert F. Ashley, Dallas, for appellant.
    Tom James, Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Lowrey Franklin Gravley brought suit for divorce from his wife Ruby Oleta Gravley alleging that no children had been born to their marriage and none was expected.

Ruby Oleta Gravley filed an answer and cross-action alleging that one child a girl had been born of their marriage on August 31, 1960. She asked for custody of the child and that appellant be required to pay child support.

Appellant as cross-defendant answered that the child is not the child of appellant and appellee, but is the child of appellee and one Henry Harold Hoffman from whom appellee was divorced in Dallas County, Texas on February 3, 1960; or in the alternative, is the child of appellee and one William R. Vrooman, the latter marriage having been dissolved either by divorce or annulment in Dallas County, Texas on the same day, February 3, 1960.

On October 25, 1960, after a trial before the court without a jury, judgment was rendered granting appellant a divorce, but the court found that the child born August 31, 1960 had been born of the marriage of appellant and appellee. Appellant was ordered to pay -$90.00 per month as child support.

For the most part the facts are undisputed. In 1954 at the age of 16 years, appellee married Henry Harold Hoffman in Vicksburg, Mississippi. They separated later in the same year.

Having been informed that her marriage with Hoffman had been dissolved by divorce, appellee in March of 1956 undertook to marry William R. Vrooman in a ceremony performed in Jackson, Mississippi. One child was born to this union, a boy, who was 18 months of age in February 1960.

Some time in 1959, according to her petition for annulment, appellee learned that she had never been divorced from Hoffman, her first husband. She thereupon separated from Vrooman and filed two suits; one for divorce from Hoffman and one for annulment of her marriage'to Vrooman. On February 3, 1960 in Domestic Relations Court of Dallas County, Texas, appellee was granted judgments in both cases, one a judgment of divorce from Hoffman, the other a judgment annulling her marriage to Vrooman.

Meantime appellant, a pharmacist, had met appellee while both were employed in the same drug store. Beginning in September before the divorce and annulment of February 3, 1960 and continuing from time to time until their marriage on February 17, 1960 appellant and appellee engaged in acts of sexual intercourse. At the time of their marriage appellee was pregnant. Appellant knew that appellee was pregnant. She had told him that he was the father of the unborn babe. There is evidence that she had become pregnant in November of 1959. Appellant admitted on the witness stand that he might be the father of the little girl born August 31, 1960.

Appellant does not attack the judgment of divorce in this case. He complains of this appeal only of that part of the judgment ordering him to pay $90.00 per month as child support.

In eight points on appeal appellant asserts in substance that there was no evidence, there was insufficient evidence, and no preponderance of the evidence to rebut the presumption that the child born August 31, 1960 was the child of appellee and Henry Harold Hoffman; that there was no evidence, there was insufficient, and no preponderance of the evidence to rebut the presumption that the said child was the child of William R. Vrooman; and that the undisputed evidence shows that neither Hoffman nor Vrooman was impotent and that both of them had access to appellee at the alleged time of the conception of the child.

We agree with appellant when he says in his reply brief that the issue in this case is not the legitimacy of the subject child. He states that the child having been conceived during a lawful marriage and also having been born during a lawful marriage, is certainly legitimate. The validity of appellee’s marriage to Hoffman in 1954 is not disputed. The good faith of appellee in her supposed marriage to Vrooman in 1956 is not challenged, therefore, a child born of that putative marriage is legitimate. 28 Tex.Jur. 721-724. And it is not disputed that following her divorce from Hoffman' and the annulment of her marriage to Vrooman, appellee and appellant Gravley were married February 17, 1960 and that marriage was valid and subsisting on August 31, 1960 when the subject child was born.

Section 42, V.A.T.S. Probate Code provides that where a man, having by a woman a child, shall afterwards intermarry with such woman such child shall thereby be legitimated. See also Pilgrim v. Griffin, Tex.Civ.App., 237 S.W.2d 448. Of course, in the present case appellant did not marry appellee after the child was born. He married appellee before the child was born. But as we interpret the statute it does not mean that a man in order to legitimate a child must wait until the child is born to marry the mother.

The old statute, Art. 2581, Vernon’s Ann.Civ.St. included the words “if recognized by him.” But when the old statute was repealed in 1955, and was re-enacted as part of Section 42 of the Probate Code the language above quoted was omitted. Obviously, the purpose in omitting the provision was to broaden the scope of the statute so that recognition by the father is no longer necessary. 8 Tex.Jur.2d 522.

We emphasize that legitimacy is not an issue in this case for the reason that if it were much of the testimony heard by the trial court would not be admissible. The only witnesses were appellant and ap-pellee. Neither husband nor wife may testify to facts which would bastardize a child born during a lawful wedlock. Longoria v. Longoria, Tex.Civ.App., 324 S.W.2d 244; 8 Tex.Jur.2d 526. Since legitimacy is not an issue we think the testimony was admissible.

Appellant asserts that there is a presumption that a child which is conceived during a marriage is the child of that marriage though the child may have been born during a later marriage — that a child is presumptively a child of the marriage in which it is conceived rather than of the marriage in which it is born. Burtis v. Weiser, Tex.Civ.App., 195 S.W.2d 841.

We do not quarrel with the holding in the above cited case, but we do not believe it is controlling here. Appellant admits, and correctly so, that the presumption on which he relies is a rebuttable presumption. And we are of the opinion that the evidence here is sufficient to rebut the presumption and to support the court's judgment.

Appellee testified that she had not seen Hoffman in several years. She further testified that she had not had sexual intercourse with Vrooman, her putative husband, since June of the year before the child was born in August 1960.

Appellant sponsored a stipulation, which was read into the record, to the effect that appellant and appellee had engaged in sexual intercourse from time to time beginning in September of the year prior to the time the baby was born in August 1960. He admitted that the baby could have been his.

The trial judge obviously believed the above testimony for in his judgment he made this finding:

“It further appearing to the Court that there was one child born to the Plaintiff and Defendant during their said marriage, to-wit: namely, KATHRYN DENISE, a girl who was born August 31, 1960.”

Moreover, we think that even without the testimony of appellant and appellee as to their sexual relations, other undisputed facts support the court’s judgment. Appellee’s marriage to Hoffman and the annulment of her attempted marriage to Vrooman both took place February 3, 1960. She married appellant February 17, 1960. The baby was born August 31, 1960, nearly seven months after the divorce and annulment. It is common knowledge that babies are sometimes prematurely born. If we exclude the testimony of appellant and appellee as to their pre-marital intercourse there is nothing in the record to show that this baby was not prematurely born. At any rate, since it was born in wedlock, we shall not presume to the contrary.

Appellant’s eight points on appeal are overruled.

Judgment of the trial court is affirmed.


author: CLAY, Commissioner.

text:
    Samuel NAIVE, Appellant, v. Charles C. JONES, Trading and Doing Business as Abco Van Lines, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    R. D. McAfee, Charles P. Sutt, Jr., Louisville, for appellant.
    Edwin O. Davis, Davis & Mahan, Louisville, for appellees.
   CLAY, Commissioner.

Appellant plaintiff brought suit to recover certain personal property, or the value thereof (alleged to be $13,000), which had been stored with appellee defendants. His claim was dismissed with prejudice on the ground he failed to answer without reasonable excuse an interrogatory addressed to him by defendants.

The suit was filed September 22, 1959. On October 5 defendants served on plaintiff, under Civil Rule 33, an interrogatory which requested information with respect to the identity of the items involved, their cost, and from whom purchased. Rule 33 requires the service of an answer within 15 days after the service of the interrogatory unless the court, on motion and notice, enlarges or shortens the time. Though permitted by the Rule, plaintiff served no objections to the interrogatory nor did he request additional time.

A month later, on November 3, defendants sent a letter to plaintiff’s attorney, calling his attention to the fact that the interrogatory had not been answered and requesting that such answer be made within 10 days.

No answer had been served by January 14, I960., Defendants on that date moved to dismiss the action under the provisions of CR 37.05, giving- notice the motion would be heard January 22. On January 20 an answer to the interrogatory was filed by the plaintiff. Apparently the motion to dismiss was heard January 22, and on January 26 the court entered a judgment of dismissal, reciting therein that the answer to the interrogatory filed on January 20 had been considered, “the sufficiency of which was contested at the hearing” and reciting that “no reasonable excuse” was offered by plaintiff for his failure theretofore to answer. As far as the record shows, plaintiff had, as of January 26, neither asked the court for any relief from compliance with Rule 33 nor undertaken to excuse or explain his delinquency.

Subsequently plaintiff’s attorney, without moving to set aside the judgment of January 26 or making any other motion, filed affidavits in which he gave reasons for his delay. Even though no motion had been filed the court ápparently reconsidered'the entire matter, including the affidavits filed by the plaintiff and a counteraffidavit filed by defendants” attorney, and declined to set aside the judgment.

CR 37.05 provides as follows:

“If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 33, after proper service of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter judgment by default against that party.” (Our emphasis.)

Plaintiff’s principal contention seems to be that the trial court lacked authority to proceed as it did. He contends there cannot be a violation of Rule 33 by mere delay in answering, and the words “fails to serve answers” means that the party must absolutely and positively refuse to answer. This argument is not persuasive. Rule 33 requires answers to be served within a specified number of days. If no answer is served within that time, then the party has failed to answer. Such failure is itself a positive refusal to comply as required. Consequently it constitutes a violation of Rule 33 in the manner condemned by CR 37.05, which empowers the court to dismiss the action.

Plaintiff next contends CR 37.05 could not be invoked unless his violation of Rule 33 was “wilful”. It is apparent from a simple reading of CR 37.05 that the word' “wilfully” qualifies the failure to appear •for the taking of a deposition and not the failure to serve answers. Under the identical Federal Rule the use of this word “wil-fully” in one place and not in the other has caused some confusion. See Moore’s Federal Practice, 2d Ed., Vol. 4, Section 37.04 (page 2807).

In Proctor & Gamble v. Vasseur, Ky., 275 S.W.2d 941, we intimated that CR 37.05 contemplated a “wilful refusal” to serve answers, although in that case the real controversy involved the propriety of the interrogatories and whether the interrogated party should be required to answer at all.

While that Rule does not in terms make the wilful failure to answer a condition precedent to imposing sanctions thereunder, "it contemplates a deliberate delinquency as opposed to one stemming from excusable neglect, inadvertence or mistake. This would be a conscious and intentional noncompliance. In the federal courts that is the exact meaning given the word “wilfully” as used in the Rule. Brookdale Mill v. Rowley, 6 Cir., 218 F.2d 728; United States v. 3963 Bottles, etc., 7 Cir., 265 F.2d 332.

Clearly in this case plaintiff knowingly and intentionally failed to serve his answer in compliance with Rule 33-He knowingly and intentionally ignored defendants’ letter of November 3 which gave him, after default, an additional 10 days to answer. Every day for more than the next two months plaintiff was in continual, constant and deliberate violation of Rule 33 by failing to answer. He was still in violation of the Rule on January 14 when defendants made their motion to dismiss.

We find no merit whatever in plaintiff’s position that the court did not have authority to invoke the sanctions specified in CR 37.-OS.

The only other question is whether the trial court abused its discretion in dismissing plaintiff’s complaint. It is not questioned that the imposition of sanctions under CR 37.05 is within the sound judicial discretion of such court. See Brookdale Mill v. Rowley, 6 Cir., 218 F.2d 728; Craig v. Far West Engineering Company, 9 Cir., 265 F.2d 251, 72 A.L.R.2d 1143; Weiss Noodle Co. v. Aprile, 6 Cir., 272 F.2d 923. The plaintiff fails to point out in what respect this discretion was abused. At the time of the ■entry of the dismissal judgment of January 26 plaintiff had not undertaken, as a matter of record, to object to the interrogatory, to ask for additional time, or to explain or justify the failure to serve an answer for three months after it became due. The ■court was fully justified in finding that “no reasonable excuse” had been offered by the plaintiff for his failure to comply with Rule 133.

It is true that after the judgment plaintiff -undertook to explain the reason for his •client’s noncompliance, but in view of a •controverting affidavit the court acted properly within the scope of its authority in declining at that late date to accept plain-biff’s excuse.

The Civil Rules prescribed a practical pattern for the conduct of litigation and the effective administration of justice. To this end reasonable compliance is necessary. The proper application and utilization of those Rules should be left largely to the supervision of the trial judge, and we must respect his exercise of sound judicial discretion in their enforcement. The plaintiff has failed to convince us of any error in the judgment from which he has appealed

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Richard G. EUBANK, Appellant, v. Glenn H. RICHARDSON, Appellee. Glenn H. RICHARDSON, Appellant, v. Richard G. EUBANK et al., Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.

      Miller & Griffin, Lexington, for appellant and cross-appellees.
    Lewis A. White, Mt. Sterling, for appel-lee and cross-appellant.
   MONTGOMERY, Judge.

Glenn H. Richardson sued Richard G. Eubank and his wife to compel the conveyance of an undivided one-third interest in forty acres of Leslie County coal land and for an accounting of the royalties. Under the judgment, the Eubanks were ordered to make the conveyance and to pay Richardson the sum of $5,120.71 as his share of the royalties, with interest from the date of demand. Eubank appeals and urges that the agreement was barred by the Statute of Frauds (KRS 371.010(6)) and the evidence was insufficient to establish a parol trust. Richardson on cross-appeal claims that he should have been allowed interest from the date of each royalty payment.

Richardson’s proof by several witnesses shows that he, Eubank, and the late H. Reid Prewitt, an attorney, all residents of Mt. Sterling, had been friends and had engaged in business relations. In May 1950, the three men met at a local restaurant at Prewitt’s request. Prewitt told them that there was a tract of coal land in Leslie County that could be purchased for $500 which was considerably less than its value. According to Richardson, Prewitt agreed to put up the purchase price but did not want to take title in his name for fear of violating legal ethics. It was agreed among the three that title-would be taken in the name of Eubank in order to finance better their operation and development of the property. Richardson and Eubank were to repay Prewitt for money advanced on their behalf. The property was to be owned jointly with the expenses and benefits to be shared equally.

Prewitt gave his check in payment of the land to Richardson who delivered it to the representative of the owners with the instruction to make the conveyance to Eubank, which was done on May 24, 1950. Shortly afterward, Prewitt became incapacitated physically. At his behest, Richardson and Eubank went to Leslie County to investigate the property. They reported to Prewitt upon their return. During the next eighteen months, the three men had many discussions relative to the property. In December 1951, Richardson paid Prewitt for his interest in the property. Prewitt died in February 1952.

This action was filed on September 27, 1957. During the interim, Eubank had conveyed to Prewitt’s widow an undivided one-half interest, the property had been involved in title litigation, and Eubank had been receiving royalties. Richardson was unsuccessful in his demands on Eubank for a conveyance.

Eubank’s proof in substance and effect was a denial that there had been any agreement among the three men to purchase the land. His evidence showed that neither he nor Richardson at the time the deed was executed was to have had any interest in the land. The conveyance was made to Eubank as a matter of convenience and favor to Prewitt, who was the sole owner. Eubank explained that he purchased an undivided one-half interest from Prewitt before his death. He then conveyed the other one-half interest to Prewitt’s widow.

It is unnecessary to state the testimony in greater detail. The evidence was in conflict on the major points. The case was submitted under a single instruction which required the jury to find if there was an agreement among the three men to acquire and own the property equally and jointly. The instruction submitted the theory of Richardson’s complaint. The jury found for Richardson.

Eubank contends that the oral agreement, as claimed by Richardson, was for the purchase of lands to be owned as joint tenants and was thus unenforceable under the Statute of Frauds. Richardson argues that the agreement constituted a joint adventure not violative of the Statute of Frauds. The nature of the relationship created by the contract controls.

A joint adventure is an informal association of two or more persons, partaking of the nature of a partnership, usually, but not always, limited to a single transaction in which the participants combine their money, efforts, skill, and knowledge for gain, with each sharing in the expenses and profits or losses. In furtherance of the joint adventure, property, including real estate, may be acquired and owned jointly although the title may be taken in the name of one of them. Jones v. Nickell, 297 Ky. 81, 179 S.W.2d 195; Whitsell v. Porter, 309 Ky. 247, 217 S.W.2d 311; 30 Am.Jur., Joint Adventures, Sections 1, 6, 10, 11, and 15, pages 938, 943, 945, 946, and 949; 48 C.J.S. Joint Adventures Sections la, 7(4), 11a, pages 801, 833, and 837. A joint adventure has been held distinguishable from joint ownership and tenancy in common, in that the latter lacks the feature of adventure. Bond v. O’Donnell, 205 Iowa 902, 218 N.W. 898, 63 A.L.R. 901; Hathaway v. Porter Royalty Pool, 296 Mich. 90, 295 N.W. 571, 138 A.L.R. 955, amended 296 Mich. 733, 299 N.W. 451, 138 A.L.R. 967.

A review of the testimony introduced in behalf of Richardson shows that all of the elements of a joint adventure were proved. Eubank contends that the agreement created a parol trust. Resulting and constructive trusts and joint adventure were fully discussed in Appleby v. Buck, Ky., 351 S.W.2d 494, wherein an oral agreement to obtain oil and gas leases for development and profit on similar facts was held not to be in violation of the Statute of Frauds. The agreement described in Richardson’s proof was a joint adventure and was not barred by the Statute of Frauds. Jones v. Nickell, 297 Ky. 81, 179 S.W.2d 195, and the cases cited therein.

The attack by Eubank on the sufficiency of the evidence is predicated on the theory that the agreement constituted a trust and required a higher standard of proof than is necessary to show a joint adventure. Reliance is had on Hecht’s Adm’r v. Hecht, 272 Ky. 400, 114 S.W.2d 499; Jenkins v. Jenkins, Ky., 300 S.W.2d 564; and Weissinger v. Weissinger, Ky., 302 S.W.2d 97, holding that clear, convincing, and satisfactory evidence is necessary to establish a parol trust.

In Whitsell v. Porter, 309 Ky. 247, 217 S.W.2d 311, it was held that the evidence to establish a joint adventure oral agreement did not have to be of the quality and quantity required to establish a parol trust. However, the evidence given in behalf of Richardson was clear, convincing, and satisfactory. It was sufficient to establish the joint adventure and to sustain the verdict. 30 Am.Jur., Joint Adventures, Section 68, page 989.

Richardson on cross-appeal claims that he should have been awarded interest on the royalty payments from the date of each payment. These payments were in controversy and the court allowed interest from the date of demand. This was a matter in the discretion of the lower court and was not error.

Judgment affirmed on appeal and on the cross-appeal.


author: WILLIAMS, Judge.

text:
    INLAND STEEL COMPANY, Appellant, v. Scott WALLEN et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.
    Howard & Francis, Fred G. Francis, Prestonsburg, for appellant.
    Burnis Martin, Paul E. Hayes, Prestons-burg, for appellees.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Floyd Circuit Court which affirmed an award of the Workmen’s Compensation Board. The principal basis for this appeal is the alleged failure of the appellee Scott Wallen to give notice as soon as practicable after he first became apprised of the fact that he had silicosis. Wallen had worked in appellant’s mines for 31 years. On November 3, 1958, he quit work and within a few days notified the Company that he ■was disabled due to the fact that he had silicosis. Wallen was examined in June of 1958, at which time it was determined that he had silicosis. Whether he was apprised of that fact at that time, or whether he did not learn of his condition until November, is immaterial. The notice requirement of KRS 342.316(2) is notice of disability rather than notice of the contraction of an occupational disease. This appeal was taken prior to the decision of this Court in Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167, wherein this Court said that, before notice of disability is required to be given by the employee to his employer, the following conditions must concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work; and (2) the employee knows or should know, by the exercise of reasonable care and diligence, that he is suffering from the disease. Wallen gave notice of disability soon after he quit work, and he did not quit work until it became known to him that he had silicosis and was disabled.

Five doctors examined Wallen and each diagnosed his condition as silicosis. Two eminently qualified doctors who examined him at the request of the appellant stated that he was not disabled. Two equally qualified doctors stated that he was totally disabled. Consequently the Workmen’s Compensation Board had before it competent evidence of probative value sufficient to support the award. The Board also found that Wallen’s disability was attributable to silicosis, which disease arose out of and in the course of his employment. The proof was that he had been a miner since he was 15 years old, and for the past 26 years had been a motorman and was exposed to silica dust. It is undisputed that Wallen had silicosis, and he having worked all those years in the mines for the appellant it is obvious the Board had ample testimony on which to base its conclusion that he was disabled because of an occupational disease which arose out of his employment.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Thomas STUBBLEFIELD, Administrator of the Estate of Clara Turner, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.

      John J. Blackburn, Frankfort, for appellant.
    Calvert C. Little, London, for appellee.
   MILLIKEN, Judge.

Clara Turner, an elderly woman, received serious injuries when she was struck from behind by a Department of Highways truck, January 15, 1957, while walking eastwardly on or near the center of State Highway No. 80 between Somerset and London. She died in May following while an inmate of the State Hospital near Danville. The Board of Claims denied recovery to her estate declaring (paraphrasing the governing statute, KRS 44.120) “That the damage claimed was not caused by such negligence on the part of the Commonwealth or its agents as would entitle claimant to a judgment in an action at law if the State were amenable to such action.”

The present appeal is from a judgment of the Circuit Court awarding $5,000 to the claimant on his appeal from the decision of the Board of Claims, and the question before us is whether the findings of fact of the Board support its refusal to award compensation to the claimant. KRS 44.140. In reversing the Board of Claims, the Circuit Court justified its award by taking the view that the evidence in the record before the Board (to which the Circuit .Court was confined by statute, KRS 44.140 (2)) was so noncontradictory that the Board of Claims should have granted the claimant an award.

The Circuit Court assumed that the Board of Claims must have found some degree of negligence on the part of the Department of Highways when it recited that the damage to Clara Turner was not caused “by such negligence on the part of the Commonwealth or its agents as would entitle claimant to a judgment in an action at law,” a construction of the Board’s holding which is not justified for, in paraphrasing the governing statute, the Board clearly meant that it found no negligence on the part of the driver of the State’s truck. In its review of the Board’s record in the present case, the Circuit Court was confined to “whether the findings of fact (of the Board) support the award or judgment.” KRS 44.140(2).

The findings of fact by the Board do support its judgment, and the testimony 'of the driver of the truck and his companions is an adequate evidentiary basis for the Board’s conclusions. Their testimony ■declares, and the Board found, that the truck was traveling from 20 to 25 miles an hour when it passed over a rise in the road, thus enabling the driver and his companions to see Clara Turner walking in the same direction as the truck in or near the center ■of the road. The testimony of the driver was to the effect that he did not blow his horn when he first saw Clara Turner, but he did start braking his truck. He stated that he blew the horn ten to twenty feet behind her preparatory to passing her on the left, that she stepped to the right, and then back to the left directly into his path; that he turned his truck abruptly to the left into a bank on the side of the road in •an effort to avoid her, but that the back of the truck struck her as it swerved. He was ■corroborated in all essentials by one of his companions who also testified to the icy condition of the highway, the care with which they had proceeded, and that there was ample room to pass the woman on her left had she not stepped back to her left as Tieretofore described. In fact, the driver testified that he was going less than 20 miles an hour at the time he sounded his horn.

The operator of a vehicle on the "highway is required to sound his horn as a warning to pedestrians only “whenever necessary * * * but shall not sound the horn •or sound device unnecessarily.” KRS 189.-■080. Whether the horn was sounded at the proper time in a given situation is ordinarily a question for the trier of facts to consider in determining the existence of negligence ■or the lack of it. We cannot say that the Board acted arbitrarily or unreasonably in the present case in determining that the operator of the truck was not negligent, for there is ample evidence to sustain the Board. Nor can we agree with the contention that KRS 189.570(4) (d), requiring an operator of a motor vehicle on the public highways, to “exercise proper precaution upon observing * * * a confused or incapacitated person upon a roadway,” is particularly pertinent here. The evidence discloses that the driver acted as promptly as possible when the pedestrian stepped to her left into the path of the truck — the only evidence of confusion on her part observable by the driver.

It is our conclusion that the evidence presented, even if considered arguendo as of a noncontradictory nature, nevertheless, left the door open for the trier of facts— the Board — to reach the conclusion it did as to the lack of negligence on the part of the driver of the truck and its consequent refusal to grant an award to the claimant. For that reason, we conclude the Circuit Court erred in reversing the Board. KRS 44.140.

The judgment is reversed.