author: COLLINGS, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Clifford Lee SCHICK, Appellee.
    No. 3787.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 6, 1963.
    Stubbeman, McRae, Sealy & Laughlin, Midland, for appellant.
    Warren Burnett, Odessa, Hartman Hooser, Big Spring, for appellee.
   COLLINGS, Justice.

Clifford Lee Schick brought suit against Texas General Indemnity Company seeking to recover benefits under the Workmen’s Compensation Act because of an injury alleged to have been sustained by plaintiff on or about November 9, 1960, while he was employed by Cabot Engineering Company in Howard County. The case was tried before a jury which found that as a result of the injury plaintiff sustained 300 weeks total disability followed by 101 weeks partial disability, and that plaintiff’s average weekly wage earning capacity during the period of partial disability was $35.00. An average weekly wage rate of $95.00 was stipulated. The jury also found that plaintiff sustained an injury to his back during March of 1962, but that such injury did not result in any incapacity. Judgment was entered for plaintiff on the basis of the verdict and stipulation. The defendant has appealed.

In appellant’s first four points it is con- , tended that the court erred in entering judgment for plaintiff (1) because there was no evidence of any causal connection between the injury of November 9, 1960, and the disability of plaintiff, and (2) because there was no evidence establishing that the claimed disability resulted from the injury of November 9, 1960, rather than from the injury to his back in March of 1962; that the court erred in entering judgment for the plaintiff on the basis of the finding of 300 weeks of total disability followed by 101 weeks of partial disability resulting from the injury of November 9, 1960, (3) because there was insufficient evidence to support such finding, and (4) because such finding is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

The evidence shows that Schick went to work for Cabot Shops in Pampa, Texas, in June of 1960, at which time he passed a rigid physical examination. Schick testified that prior to that time he had been able to do and did do all kinds of manual labor, including cattle hauling, brick hauling and loading, and the handling and hauling of 300 pound bales of broom corn. He worked for Cabot Shops in Pampa for about 2 months and was laid off because of lack of seniority. About a week later he was called and went to- Big Spring to work for Cabot Engineering doing painting and general construction work. This work involved much bending and .stooping. On November 9, 1960, Schick was endeavoring to set a 300 pound conveyor mechanism on some channel iron 186 feet above the ground and in stooping and bending over to do this work he felt a sharp pain in his back. Schick stated that the pain was so severe that he had to lie down on top of the tank while other employees on the job gathered up the tools at quitting time; that he had trouble getting down the ladder and experienced great pain at about the belt line. The next morning he was unable to get out of bed and dress himself without the help of his wife. He informed Cabot of his condition and they sent him to Dr. Williamson in Big Spring where he was X-rayed, given a shot in the arm and heat treatment. He continued to see Dr. Williamson for about a week and a half before he returned to his home in Shattuck, Oklahoma, at Thanksgiving time. While he was in Shattuck he went to see Dr. Bergdorf, an orthopedic surgeon, and was treated by him. Schick had previously been treated by this doctor for back trouble. Upon returning to Big Spring after Thanksgiving, he continued to see Dr. Williamson for treatment until he moved back to Shattuck in December 1960. Hq was also sent by Cabot to Dr. Robinson at Kermit, Texas, for an examination. After he returned to Shattuck he again saw Dr. Bergdorf and was placed in the hospital. On December 16, Dr. Bergdorf performed a partial laminectomy at the fourth lumbar level. After the operation Dr. Bergdorf advised Schick that he would have a 15 percent over all reduction in his physical efficiency and advised him not to do hard work, not to stoop, not to drive a truck, that even doing work as a waiter would be bad for him, that he would be better off if he quit oil field work and that it would be best for him to get into an independent business. The doctor also recommended to Schick after the operation that it would be good for him to have hot tub baths and to keep his back flat by sleeping with a pillow under his knees.

Dr. Bergdorf testified that the nucleus pulposus is the center of the intervertebral disc and acts as a cushioning and mild weight bearing material; that the most common cause of nerve root pressure is a protruding disc which will normally, in" the lumbar area, be reflected by motor or sensory disturbances in one or both lower extremities. He stated that straight leg raising is a test used to determine nerve root pressure on the sciatic nerve and that a normal man’s leg can be elevated 80 degrees without pain; that nerve root pressure is of varying degrees, and the more severe the degree the lower the leg' can be elevated on the straight leg raising test. The doctor stated that the purpose of the operation he performed on Schick was to remove all the nucleus pulposus in the affected area and to thereby relieve the nerve root pressure.

The doctor stated that: when Schick first came to see him after the November, I960 injury his straight leg raising was positive at 50 degrees on the right and 65 degrees on the left; that in April of 196Í Schick stated that he had been having some low back pain while driving a truck, but that the straight leg raising test was at that time negative for sciatic which indicated no nerve root compression; that in March, 1962, sixteen months after the operation, when Schick came to the doctor complaining of another back injury the test showed 35 degrees in both legs, which was strongly suggestive of nerve root irritation and a protruding disc and a more acutely painful condition than before the December, 1960 operation. Dr. Bergdorf stated that Schick’s trouble at the time of the March 30, 1962 examination was below the level of the area on which surgery was performed in December of 1960; that his findings on that occasion were strongly suggestive of a herniated intervertebral disc and that Schick then had greater nerve root pressure or irritation than he had at the time of the operation. Dr. Bergdorf testified that in his opinion there was no relation between the injury to Schick’s back in March of 1962 and the prior injury of November, 1960, other than that Schick had a congenital predilection to disc injury. He also testified that if Schick had any disability at the time of the trial it could be the result of the March, 1962 injury; however, that in his opinion there was no reason why Schick could not then obtain and retain employment doing the usual tasks of a workman. Dr. Bergdorf indicated he could not positively state the cause of the nerve root pressure found in March, 1962 and admitted that it was possible that all of the nucleus pulposus might not have been removed in the operation of December, 1960; that his clinical tests limited the problem to either the fourth or fifth lumbar vertebrae; that it was unlikely that the fifth lumbar vertebrae could have caused the trouble because it was sacralized; however, that it was not at all uncommon to have to go back and do a second operation to repair the first one. The doctor stated that Schick was predisposed to back injury; but, was able to work when he saw him in 1958, and at that time had no leg pain. He further stated that Schick should not lift anything over 25 to 40 pounds unless he could keep his back absolutely straight but further stated that this applied to every one in Schick’s age group.

The evidence indicates that Schick tried to return to work in February of 1961; that he received no compensation payments until December 16, 1960, but had been off work and under a doctor’s care since November 9th. Schick stated that his wife had presented him with a baby and, in addition, was in ill health and required medical treatments ; that it was under these circumstances that he got a job driving a milk truck, which required lifting, stooping and. crawling through a manhole to clean out and wash the tanks; that he was not able to do the work and had to have help from other employees to do the job; that his back pained him while doing such work, would get very stiff after any “long haul driving” and when he came home at night his back was in great pain; that he was sometimes unable to dress himself and unable to sleep; that actually he was unable to do the work properly and his boss was about to let him go; that he worked a total of about two and a half months on this job. He stated that about two weeks later he got a- job as-a truck driver; that his wife had entered the hospital for surgery and that he had to work; that when he had finished a day’s work on this job he was in such condition that he sometimes had to crawl up his own front steps; that he managed to continue this work for about four months, although his back and legs were bothering him; that he was then laid off the job and given work with a companion company; that the new work was much lighter but after one and a half or two months he was laid off on this job because he couldn’t do the work and was replaced by a larger and huskier employee.

Schick testified that about a month later he opened a cafe for a short time but found the work too hard and he was unable to keep the business going; that he then secured work on a well servicing job which involved the operation of power tongs and a hand clutch on the motor, but that lasted only one week and then “played out.” He stated that thereafter he was unable to find any work for a long time but finally got work on a light swabbing job which lasted about three weeks; that he hurt his knee on this job and as a result thereof Dr. Bergdorf performed an operation on his knee but that the knee got all right except for some numbness which does not interfere with working or walking. In March of 1962, he was jacking up a pick-up truck trying to get it out of a mud hole while running an errand for his uncle, and had such a severe back pain that he collapsed. This happened about two and a half months before the trial. Thereafter he again had part time work for about two weeks for the milk company and continued to have trouble with his back and legs. Shortly before the trial on June 25, 1962, he began work in a small welding shop, doing light welding jobs on a piece-work percentage basis and was still engaged in this kind of work at the time of the trial. Schick testified that based upon his experience with his injury he believed that he would never again be able to work regularly at any job requiring lifting, straining or heavy manual labor; that he has had continuous trouble with his back and legs; finds it painful to ride in a car or sit in a hard chair; that he has to shift position constantly while sitting, because of pain, and then it starts hurting in a different place; that when he gets in one good day’s work he usually has to rest the next three or four, and has to lay with pillows under his knees and take hot baths to relieve the pain and often has to sleep on the floor at night; that his condition has not gotten any better but has gone from bad to worse.

Appellant’s points urging that the court erred in rendering judgment for the plaintiff because there was no evidence that Schick’s incapacity resulted from his injury on November 9, 1960, and no evidence that his diability resulted from the injury of November 9, 1960, rather than the injury to his back in 1962, are overruled. The jury found that Schick did sustain incapacity as a natural result of the November 9, 1960 injury and also that the injury of March 12, 1962, did not result in any incapacity. In our opinion there is evidence, both direct and circumstantial, as above substantially set out to support these findings. See article by Judge Calvert in 38 Texas Law Review, 361, 364, also Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286. We also hold that the findings concerning Schick’s total and partial disability are not lacking in support of sufficient evidence and are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. We cannot agree with appellant’s contention that the controlling questions are wholly within the realm of scientific knowledge and beyond the experience of a lay witness, and that the testimony of Dr. Bergdorf to the effect that there was no relation between the two injuries and that any incapacity existing at the time of the 'trial could have been a result of the March, 1962 injury, is conclusive. In the first place opinion evidence is not conclusive even though it is not disputed. In addition, Dr. Bergdorf admitted that he could not state positively the cause of the nerve root pressure he found in his March, 1962 examination and that the prior operation might not have gotten all of the nucleus pulposus. The doctor further stated that in January or February of 1961, it was his opinion that Schick had suffered at least a fifteen percent permanent reduction in his over all physical efficiency. The testimony of Schick and other witnesses concerning the difference in his ability to work before and after the injury complained of, Schick’s testimony that the work he did was under the pressure of necessity, the evidence concerning the duration of his disability and the degree and progress of his recovery all constitute evidence which amply support the verdict. Considering all this evidence we conclude that the findings complained of are not against the great weight and preponderance of the evidence. In re King’s Estate, supra.

In appellant’s fifth point it is contended that the court erred in permitting appellee Schick to testify that it was his opinion and belief that he would never be able to work regularly at any form of heavy manual labor involving lifting and straining. The point is not well taken. In Texas Employers Insurance Association v. Melton, Tex.Civ.App., 304 S.W.2d 453, it was held that the question of whether or not an employee would be able to go back and do the kind of work which the employee had been doing at the time of the injury “was testimony only of an evidentiary nature and was not solely a question of expert testimony.” In the instant case the testimony of appellee Schick was by its terms based upon the experiences which he had had with his injury as he had related it to the court and jury and which tended to support his conclusion. In our opinion the testimony complained of was admissible. Appellant has cited no authority to the contrary.

The judgment is affirmed.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    B. E. M. HOMEOWNERS ASSOCIATION, Appellant, v. CITY OF FORT WORTH et al., Appellees.
    No. 16448.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 1, 1963.
    H. J. Loe and Ernest May, Fort Worth, for appellant.

      S. G. Johndroe, Jr., City Atty., Fort Worth, for appellee City of Fort Worth.
    Simon, Crowley, Wright, Ratliff & Miller, and James E. Wright, Fort Worth, for ap-pellee Jack E. Turnbow.
   LANGDON, Justice.

This appeal seeks to reverse the judgment of the trial court for failure to declare invalid an ordinance amending the comprehensive zoning ordinance of the City of Fort Worth and to enjoin uses of the property permitted by such ordinance.

Affirmed..

On October 10, 1958, soon after the area including the subject property was annexed, the City Council of the City of Forth Worth adopted ordinance No. 3965, which classified the property as “A” One-Family Residential. The acreage is located in the 5400-6200 blocks of Ederville Road. It is bounded on the north by Ederville Road and the Forth Worth-Dallas Turnpike embankment and fill, on the east by Oakhill Road, on the west by Weiler Boulevard, and on the south by a vacant tract of wooded lowland, which has a gully of considerable depth running through it. At the time the initial “A” One-Family zoning was applied, the area was in acreage, not having been subdivided into lots and blocks by filing an approved plat •of record, and no plans existed for the construction of improvements thereon.

On November 29, 1958, the Meadowbrook Toll Plaza was opened a short distance west of the subject property.

On October 13, 1961, after due and proper notice, a public hearing was held by the City Council to consider an amendment to the Comprehensive Zoning Ordinance, recom•mended by the City Zoning Commission changing the zoning to less restrictive classification. As a result of such hearing, ordinance No. 4536 was adopted, rezoning the ■subject property from “A” One-Family to '“C-R” Restricted apartment, “D” apartment .and “E” Commercial.

On November 14, 1961, the appellant, a voluntary association of persons whose homes are located in the area, filed suit seeking judgment against appellee, City of Fort Worth, declaring that ordinance No. 4536 is null and void, and enjoining appellee, Jack E. Turnbow, from using his property for the purposes permitted by ordinance No. 4536.

By agreement all matters in controversy were submitted to the court without the intervention of a jury. It was stipulated that the City Council in adopting ordinance No. 4536 did not accept in toto the recommendations of the Zoning Commission but made changes of a more restrictive nature; that at the public hearing evidence was heard from both sides and that all procedural requirements were complied with.

The judgment of the trial court decreed the ordinance to be valid and denied the injunction against Jack E. Turnbow and this appeal was perfected. By its single point of error the appellant contends that the trial court erred in holding that the ordinance is valid because it “was altogether arbitrary, without relation to any legitimate purpose of zoning within the municipal police power.”

The case of City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, contains several basic principles to be considered by the courts in determining the validity of any zoning ordinance, namely:

“Since it is an exercise of the legislative power of the city’s council, the ordinance must be presumed to be valid.

“The courts cannot interfere unless it appears that the ordinance represents a clear abuse of municipal discretion. And the ‘extraordinary burden’ rests on one attacking the ordinance ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.’ (Authorities cited.)

“The presumption of validity accorded original comprehensive zoning applies as well to an amendatory ordinance. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704. In either case the courts have no authority to interfere unless the change is clearly unreasonable and arbitrary. (Authorities cited.)

“If reasonable minds may differ as to whether or not a particular zoning restriction has a substantial relationship to the public health, safety, morals or general welfare, no clear abuse of discretion is shown and the restriction must stand as a valid exercise of the city’s police power. City of Corpus Christi v. Jones, Tex.Civ.App., 144 S.W.2d 388, error dism., correct judgt. Otherwise expressed by the court in the case just cited, if the issue of validity is fairly debatable courts will not interfere.

“* * * Court should have due regard ‘to all the circumstances of the city, the object sought to be attained and the necessity existing for'the ordinance.’ And if there is an issuable fact as to whether the ordinance makes for the good of the community, the fact that it may be detrimental to some private interest is not material. Edge v. City of Bellaire, Tex.Civ.App., 200 S.W.2d 224, 227, error refused.”

See also Bliss v. City of Fort Worth, 314 S.W.2d 611 (Tex.Civ.App., Fort Worth), no writ history, involving the same questions.

Many factors supporting the action of the City Council in adopting ordinance No. 4536 appear affirmatively in the record. To briefly summarize, the record contains evidence, including exhibits and testimony, to the effect that (1) there has been an increase in population and traffic; (2) need for a commercial service center; (3) a decline in the value of property fronting on and adjacent to Ederville Road for “A” One-Family use and an increase in its value for apartment and commercial use; (4) Eder-ville Road is rapidly becoming an arterial thoroughfare due to the opening of the Toll Plaza and the southeast loop and the underpass to the toll road; (5) the size, shape and location of the subject property make it undesirable for “A” One-Family residence purposes; and (6) use of the property for apartment and limited commercial service center uses will increase the wealth of the city and tend to increase tax values. These and many other factors were placed before the City Council for their consideration, including conditions existing prior to passage of the ordinance and the anticipated future development and condition in the subject property, as well as in the related areas.

In reviewing the record we have concluded, (a) the appellant has failed to show any action on the part of the City Council to indicate it was arbitrary or capricious; (b) full and substantial evidence was presented to both the Zoning Commission and to the City Council in open public meetings; (c) the action of the City Council and the trial court was thorough, deliberate and well considered.

It was stipulated by counsel for all parties that a motion for summary judgment of the City, together with the affidavits and attached exhibits, may be offered in evidence. The affidavits and exhibits were not controverted or disputed by opposing affidavits or exhibits.

The Zoning Commission in recommending passage of the ordinance to the City summed up its findings ag follows:

“The proposed zoning will permit development desirable as a buffer between the heavily-traveled thoroughfares and the excellent residential district. The topography prevents the proposed commercial and apartment developments having an adverse effect on existing residential developments. A well-planned neighborhood shopping center, properly buffered, tends to stabilize residential values in an area.”

These findings were supported by the evidence presented before the City Council and the trial court.

As stated in the Bliss case, supra, it was the appellant which carried the burden to prove that the City Council acted in clear abuse of its discretion in amending its ordinance, but from the statement of facts it appears that the appellees carried the burden by way of testimony and successfully demonstrated thereby that the appellant did not meet the burden of proof required of it.

By its testimony the appellant proved only that it was in disagreement with and opposed to the action of the City Council in passing the ordinance.

The record clearly showed that controversial or issuable facts were raised and resolved by the City Council and that it was therefore faced with debatable facts and conditions for its consideration.

The appellant had the “extraordinary” burden of showing that there were no controversial or issuable facts which would authorize the City Council to exercise its legislative function in adopting the ordinance complained of. It did not meet that burden.

The applicable rule has been unequivocally stated by the courts of this State in an unbroken line of decisions and is reflected in City of University Park v. Hoblitzelle, Tex.Civ.App., 150 S.W.2d 169, dismissed. There the court said:

“* * * Or, if it can be said that the evidence raises the issue of any of the material facts upon which the city authorities refused the permit, then the law delegates to the city authorities, and not to courts or juries, the power and duty of determining the sufficiency of issuable facts in the exercise of a purely governmental function. Paraphrasing the language of Judge Gaines, in the case of Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62, 2 Am.St.Rep. 505, he said: Tf there is any controversy as to the existence of the facts upon which the Board denied the.requested permit, the function of the Board was discretionary, and it cannot be compelled to grant the permit.’ ”

Further, to the same effect see King v. Guerra, Tex.Civ.App., 1 S.W.2d 373, Tex. Civ.App., 13 S.W.2d 908, writ dismissed, and Webb v. Dameron, Tex.Civ.App., 219 S.W.2d 581, writ refused, n. r. e.

For the trial court to have done otherwise than to have sustained the validity of Ordinance No. 4536 would have resulted in an erroneous substitution of his opinion and judgment for that of the City Council. This Court being bound by the same rules has no legal alternative except to affirm the action of the trial court.

Affirmed.

MASSEY, C. J., not participating.


author: FRASER, Chief Justice.

text:
    Mrs. Don KIRKLAND, a Widow, et al., Appellants, v. TEXAS AND PACIFIC RAILWAY COMPANY, a Corporation, Appellee.
    No. 5591.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 16, 1963.
    Rehearing Denied Nov. 13, 1963.

      John J. Watts, James D. Cunningham, Odessa, for appellants.
    McDonald, Shafer, Gilliland & Davis, Paul McCollum, Odessa, Hill D. Hudson, Pecos, Wm. R. McDowell and Gerry Wren, Dallas, for appellee.
   FRASER, Chief Justice.

This is an appeal from a judgment rendered by the District Court of Ector County, Texas. Plaintiffs-appellants brought suit for damages for the death of Don Kirkland and for property loss arising out of a grade crossing collision between a train owned by appellee and a tractor-trailer gasoline transport truck driven by Don Kirkland. The case was tried to a jury and judgment was rendered by the court in favor of the defendant.

The jury, in answer to special issues, found that at the time and on the occasion in question the defendant railway company’s train was'being operated at a speed o'f 72 miles per hour, and that such rate of speed was negligence and the proximate cause of the accident. The jury also found that the crossing in question was extra-hazardous. The jury then answered the issues of discovered peril in favor of the defendant railroad; and further, the jury found that deceased failed to keep a proper lookout, and that such failure was a proximate cause of the collision. The jury also found that the train was plainly visible as it approached the crossing and was in actual, hazardous proximity to the crossing-before the deceased, Don Kirkland, reached a point fifteen feet from the nearest rail of the track upon which, the train was approaching, and that the failure of the deceased to stop his vehicle within fifty feet and not less than fifteen feet, under the circumstances there present, was a proximate cause of the collision. The jury found damages in the sum of $4,150.00 for the partnership which owned the truck,'and the sum of $37,500.00 for the other plaintiffs, who were 'the widow, Mrs. Kirkland, and her minor children, and the surviving parents of the deceased.

Appellants’ first point charges the trial court with error in overruling appellants’ objection to statements made by counsel for the defendant in his address to the jury. Appellants maintain that the alleged improper argument and ruling occurred as follows:

“The deposition, after Cunningham had asked him page after page of questions I finally got down to it and I asked him a question, and this was his answer, and I think it must be yours, in answer to whether he and the fireman used all possible means at hand, ‘Mr. Simmons, when you saw that boy was in a dangerous spot, did you do everything on God’s green earth that you could possibly do to avoid hitting him,’ and his answer was, T sure did’. Don’t convict that old man. Maybe you haven’t seen him, Mr. Watts, but don’t send a man who has been married to the same woman since 1924, who has held the same job on the same railroad for the same company for thirty years, and has worked for the same company since 1909. Don’t send him from his retirement to his grave, and place a stain of homicide on him * * *
“MR. WATTS: (Interrupting) If your Honor please, we object to that as that is highly improper, nobody is trying to convict him of homicide, and we ask the Court to instruct the Jury not to consider it. Nobody has tried to make a complaint, or ever will.
“THE COURT: Overruled.
“MR. WATTS: Note our exception.”

Appellee replies that this bill of exception was qualified by the trial court as follows:

“With reference to Mr. Hudson’s argument in cause number B-17,967, styled Mrs. Don Kirkland, et al. v. Texas & Pacific Railroad Company, the Court can only certify that he made in substance the argument contained in the attached transcript of the then Official Court Reporter’s notes. The Court further certifies that Mr. Watts did interrupt and make some sort of objection to Mr. Hudson’s argument, the Court being unable to certify from memory, however, as to the exact point of such objection, but being of the opinion that it was at approximately the point shown on page 8 of the attached transcript, the Court likewise being unable to certify from memory the exact form of the objection or as to whether or not the sequence set out on page 8 of the attached transcript is correct, but being of the opinion that some discussion was had between' Couñs'el and the Court which'is not shown on the-attached transcript.”

On the basis of the above qualification by the trial court, appellee maintains that the matter is not accurately or properly before us for review, and we do feel there is some merit in its contention. The qualification of the court becomes a part of any bill of exceptions, and requires the appellate court to accept the qualified bill in its qualified form. Craddock v. Humble Oil & Refining Co., 234 S.W.2d 137 (Tex.Civ.App.; n. r. e.) ; Cannady v. Dallas Ry. & Terminal Co., 219 S.W.2d 816 (Tex.Civ.App., n. w. h.).

It is also well established that the bill must be complete and clear and must fully set forth the matter complained of. 4 Tex. Jur.2d 39, Appeal and Error, sec. 507.

This leaves us confronted with a bill of exception wherein the court says that to the best of his recollection the matter occurred substantially as set forth in the bill. While there may be some doubt as to the completeness' and necessary clarity of the bill here involved, we hesitate to say that it is entirely inadequate, in view of the fact that the court does say, in his' qualification, that'the argument made was substantially the same as that set forth in the bill, and Nat Mr. Watts did make some character of objection to Mr. Hudson’s argument. So while there may be some question as to the adequacy of this bill, we believe that it should be considered. However, we do not believe that the matter presents reversible error. The courts have always been rather strict with regard to matters taking place in the presence of the jury, but at the same time every appellate court has, of necessity to realize that in the heat and confusion of trial, especially one as serious as this, many advocates become forceful and ardent in their arguments. The courts have therefore held that the argument must have been calculated to cause, and probably did cause, a rendition of an improper verdict and judgment in order to be serious enough to warrant reversal of the case. The jury here, of course, knew they were trying a civil case and, as the bill of exceptions itself will show, the objection by Mr. Watts, apparently promptly made, stated that nobody was trying to convict the engineer of homicide, and that nobody had tried to make a complaint or ever would. This in itself should have served, at least in some degree, to advise the jury that no one was trying to ask them to convict the engineer of the commission of a homicide.

Language of this type has occurred many times before and the courts have been reasonably consistent in their holdings that, although this type of argument may be improper or irrelevant, it is not necessarily reversible. Appellants maintain, in their brief, that had this argument not occurred, the jury would likely have answered the issues relating to discovered peril differently, and the court would therefore have been able to write a judgment based on the provisions of the discovered peril doctrine. We do not believe this argument was strong enough to sustain this contention, and we therefore must hold that the argument, as made and reported to us by the qualified bill of exceptions, was not such as could be considered reversible error. Greeson v. Texas & Pacific Railway Co., 310 S.W.2d 615 (Tex.Civ.App., n. r. e.) ; Saenger v. Dallas Ry. & Terminal Co., 67 S.W.2d 351 (Tex.Civ.App., ref’d).

In Walker v. Texas Employers Insurance Association, 155 Tex. 617, 291 S.W.2d 298 (Texas Supreme Court), the court says as follows:

“A determination of whether the error ‘probably did cause, the rendition of an improper judgment’ by influencing the jury to return a verdict it probably would not otherwise have returned is to be made from an examination of the record as a whole.” State v. Parrish, 159 Tex. 306, 320 S.W.2d 330; Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277.

Therefore, we have examined the record here and find as follows: The tragedy occurred within a few minutes of eight o’clock in the morning of October 17, 1959; that the weather was clear and sunshiny; that this crossing, known as Solo crossing, had cross-arm warnings but .no automatic signals; that the train was proceeding easterly. The operators of the train testified that they saw the truck approaching on this dirt road; that they were whistling for the crossing and assumed that the driver of the truck would stop, but that he never stopped in the last sixty feet before he came to the tracks. They testified that they applied the emergency brakes of the train when they saw the driver was not going to stop, but that it was too late to avoid the accident. They testified that they saw the truck twice, once before it went behind the stock pens, and then again as it came into view and came on to the tracks; that they had been whistling for four or five blocks away from the crossing.

We include herewith excerpts from the testimony of a substantial group of witnesses. We have endeavored to be as thorough as is possible and still be brief. Also included with this opinion is a photostatic copy of a location plat, described as Exhibit P-36. It will be observed from the exhibits that the countryside at the scene of the accident appears to be almost completely flat and treeless.

V. L. BRIDGES (called by plaintiffs) :

Was a driver for Foremost Dairies and was proceeding toward Midland from Odessa on the highway just north of the railroad tracks, was driving about sixty miles per hour, and was a witness to the collision-said he saw Kirkland approaching railroad tracks (from the south side) and that he did not change his speed as he approached the tracks, but seemed to the witness to speed up as he got on the tracks — then saw train hit the truck — testified that he was about even with the stock pens when he heard the train, whistle — that he only heard one whistle — that he saw some boxcars on the other railroad tracks but could not identify them from a picture or photograph shown him, but did testify that the pictures showed the approximate location of the cars (the record does not seem to indicate what picture was being shown to him). Voir dire examination by defendant: Testified that he thought there were three railroad tracks — did not notice whether railroad cars standing there were boxcars or stock cars, nor for sure what track the train was traveling on, but he thought it was the most northerly track. In answer to examination by plaintiffs, witness stated boxcars appeared to be like the ones in a picture being shown him — he did not know which track these cars were on. (The bill of exceptions asked whether the boxcars present on the track immediately following the accident, such as the witness saw, did or did not constitute an obstruction to the view of one approaching that track from the south going north). (Mr. Kirkland was driving from south to north across the tracks when hit). Witness answered: “I believe it would”; and further, that the cars appeared to be located in the picture as they were after the accident. On voir dire he further testified, in answer to defendant, that he did not go to the south side of the crossing in order to look and see whether the standing freight cars actually obstructed any view or not; then, on further examination, he testified that he did not know how many cars were there — that he thought there were several. He was then asked by defendant where he was when he first saw Kirkland (it was indicated on a sketch that he was on the highway at a point about even with the easterly end of the stock pens), and he testified that he looked across and saw Kirkland making the turn on the caliche road (this turn is shown on the diagram as it loops around from behind the stock pens in order to approach the tracks). The spot indicated by Mr. Bridges puts Mr. Kirkland right in the bend of the road, and before he had begun the straight strip up to the tracks. Witness further testified that just about the time he saw Kirkland the train passed him between him and Kirkland, and that it passed him just about the time he looked across the railroad tracks and down to the turn in the dirt or caliche road upon which Kirkland was traveling. He repeated that Mr. Kirkland never stopped his truck and that he actually, in his opinion, speeded up a little as he got on the tracks — that he thought the train was going at least sixty miles an hour. (Kirkland’s position when seen by Bridges is shown by red letter “K” on Exh. p-34).

W. J. DUNCAN (called by plaintiffs) :

Was employee of Wright Rental Tools— was a witness to the accident- — was driving employer’s truck coming south on the same road Kirkland was traveling north — had already crossed the railroad tracks from north to south — saw the train coming from the west — that his truck passed Kirkland’s truck at about the curve in the road as it begins to curve in order to go around the stock pens (indicated by letter “D” on sketch marked Exhibit 34) — that Kirkland was doing fifteen or twenty miles an hour— that he (Duncan) pointed back down the track as he passed Kirkland — stated that Kirkland waved back, but that the way he took it Kirkland just thought he was waving at him — stated there were some stock cars on the track at the crossing — that he heard the train whistling when Kirkland was on the tracks — couldn’t remember by looking at picture whether those were the same box cars he saw at the time of the accident, and couldn’t remember whether they were located in the same place as the cars were at the time of the accident. Under cross-examination testified the weather was clear —the approaching train was about three quarters of a mile away when he crossed over the tracks and that he observed a light on the front of the train — that he didn’t know how close to the crossing the train was before he noticed the whistling, nor did he know how far Mr. Kirkland was from the crossing when he (Duncan) first heard the train whistling — stated that it could have whistled without his hearing it, saying “I imagine it could, with the windows up and so much racket going on there, it could have been whistling, I don’t know.” Further, if the train whistled farther back from the crossing, he didn’t hear it — did not know what kind of railroad cars were parked near the crossing nor which of the other two tracks the cars were on. Then, under cross-examination, his original statement was read wherein he said: “The driver waved back which we took to- mean he knew what we were pointing about”, and testified that that statement was made three days after the wreck. Testified again under cross-examination that Mr. Kirkland never stopped his truck at any time before the accident. Defendant then read statement of Mr. Duncan where he says there were some box cars standing on a track west, but he didn’t know how far west, down the track from the crossing, and that those boxcars would block a view of a train coming from the west until they got up to a certain distance of the crossing, but he didn’t know how far. Also, that from the time the truck passed them until it was struck on the crossing, the driver never did come to a stop, that he didn’t know where the train was when it started whistling, but that it was whistling as it approached the crossing and hit the tank on the truck.

HAROLD LEMLEY (called by plaintiffs):

Was employee, of Texas Gulf Producing Company — was a witness to the accident. On' direct examination stated he did not hear any train whistling before the accident, nor any bell being rung — that he was about a third of a mile, or two and a half or three blocks, north of the train at the time of the collision. Oh cross-examination testified that his car windows were rolled up — did ■not "see truck approaching crossing — just saw the accident.

KENNETH E. ESMOND (called by plaintiffs) :

Is a consulting civil engineer — made scale drawings of the scene of the accident— testified it was 239j4 feet from the corral or loading pens to the center of the crossing where the accident happened.

J. M. SIMMONS (portions of his deposition read by plaintiffs)

Was engineer of train involved — following is from his deposition: Stated that there were some freight cars on the spur track near the crossing — thought there were about four or five — that they were stock cars— that as he approached this crossing he was on the right side of the locomotive and could see over the tops of the parked freight cars — that he first saw Kirkland before Kirkland had reached the stock pens, then saw him again as Kirkland had passed the stock pens and was turning up to cross the railroad tracks — that it took about a mile to stop a train like his at the speed he was going' — stated again that he was on the right-hand side of the cab of the locomotive and therefore closer and in better position to view than the fireman, who was on the left-hand side.

W. G. DECKER (deposition offered by defendant) :

Was fireman on train involved — stated that he was on the left side of the locomotive and engineer on the right — that train was as least 900 feet from the crossing when he started blowing the whistle — that he blew first the usual crossing signal of two long, one short and then one long, then gave the same signal again constituting a total of eight blasts — the bell was ringing and was still ringing after the collision— that Mr. Simmons, the engineer, big-holed the engine before the impact (in other testimony it appears that to “big-hole” means to take emergency measures, such as putting on the emergency brakes, etc., to stop the train as quickly as possible) — that engineer began the emergency stopping of the train between 75 and 100 feet away from the crossing — that such a train, at that speed, would go 150 to 200 feet before you could notice a stopping even under emergency conditions, and that therefore the impact, according to his best recollection, probably happened before any effect of big-holing was noticeable — that he first saw the truck when the train was about 900 feet from the crossing, then saw the truck again when the train was about 250 feet from the crossing — that the parked freight cars and stock pens obstructed his vision — that the headlights on the locomotive were burning, which included the oscillating light- — that the truck was about sixty feet from the crossing when he saw it the second time.

R. E. L. FOGLE (called by plaintiffs) :

Is a retired engineer with 27 years experience as an engineer — that a train under the circumstances prevailing at the time of this accident would take about three quarters of a mile to stop — testified about mathematical reduction of speed on application of emergency or big-hole attempts to stop a train- — under cross-examination further testified that if an engineer stopped a locomotive or even slowed it down every time he saw a vehicle from a distance back from the crossing, the train would never make its schedule — that he had run passenger engines before retiring — that he assumes the man is going to stop until he has gone too far to stop — that he has to do that, and there is nothing he can do if he discovers the person or vehicle approaching the crossing is not going to stop except continue blowing the whistle and throw on the emergency application.

L. L. GERHARDT (co-plaintiff called by plaintiffs) :

Witness was one of partners owning the truck destroyed in the accident — testified that he had used that crossing many years prior to the accident in his business, and his truck drivers had done likewise — that there was no train to move any freight cars when he got out to the scene of the accident; that he got out there fifteen or twenty minutes after he was called and notified that there had been an accident — stated that there were quite a few freight cars standing on both tracks west of the crossing— that a person crossing the track would have to be on the track before he could see a train coming from the west (but such answer was stricken by the court on obj ection from defendant) — was cross-examined by defendant as to how witness Bridges, driving the dairy truck, could have seen Kirkland if all those box cars were on the tracks as witness Gerhardt testified — he testified there was a space underneath the box cars that a person could see through — that it was possible that a person driving on the highway would have to squat and look under the box cars — that he thought such was possible and that it was very possible that that was what happened. (It is obvious from the testimony of Bridges and the sketch, including the point where Bridges was when he saw Kirkland, that Bridges was looking from the main highway southeasterly across the railroad tracks and down to the turn in the road that Kirkland was making at the time he saw him).

ELWOOD HILL (called by defendant):

Deputy Sheriff — on direct examination testified that there were some box cars on one of the sidings or side tracks next to the loading chutes — that these cars extended west from the loading dock. Under cross-examination stated that he arrived at the scene about 8:30, which was approximately' fifteen minutes after the accident — that he remained there thirty minutes, but did not see the railroad moving any box cars.

STANLEY TROUT (called by defendant) :

A resident of Midland employed by White’s Inc. — was driving on the main highway at the time of the accident — saw the train quite a ways down the track prior to the collision when he himself was about three or four hundred yards east of the crossing — saw the light on the train but did not know if it was oscillating — heard the whistle on the train blowing when he was approximately a couple of hundred yards east of the crossing — that at this time the train was about an equal distance west of the crossing, in other words, that the train was whistling some 200 yards west of the crossing. Further testified as follows: “Q. Did you hear this whistle at the time of the collision? A. The whistle was even blowing at the time of the collision, all this noise, and it was kicking up quite a fuss.” Did not see the truck before the collision. On cross-examination his statement was read wherein he there stated that he was 300 yards east of the impact point at the time of impact — that there was a string of railroad cars parked on a siding south of the track the train was approaching on — that these railroad cars were parked pretty close to the cross road involved which could ob-struck the truck driver’s view of the train approaching — estimated fifteen or twenty freight cars parked on the siding — did not ■see train crew move any cars while he was there at the scene.

R. D. RAGSDALE (called by defendant) :

On direct examination testified that he ■was employed by the Wright Rental Tool Company — witnessed the collision in question while riding in a truck with witness Duncan — that they were coming from the north going south — saw Kirkland’s truck at about the curve in the dirt road where it swings around the east end of the stock pens and heads straight away toward the railroad tracks and main highway — saw the train coming from the west before he and Duncan crossed the tracks — did not know if headlight was burning — train about three-quarters of mile away — that he and Duncan motioned to Kirkland to try to make him understand a train was coming — that Kirkland “throwed up his hand and waved at us” and that he took it to mean he understood the train was coming — heard the train whistle after they passed Mr. Kirkland— that his impression was that the train whistle was blowing before Kirkland started up the little incline toward the railroad tracks, and he estimated Kirkland truck position to be 20 to 30 to 40 feet back of the track when he and Duncan heard the train whistling — that Kirkland was going about fifteen or twenty miles an hour. Under cross-examination it was brought out that in his statement made the day of the accident along with Mr. Duncan he said, “Mr. Duncan and I motioned to the Pokorny driver (Kirkland) that a train was coming and he sort of waved back at us, but I don’t believe he knew we were trying to tell him about the train.” Saw some steam under the engine and thought train was trying to stop or was braking — heard the train whistle before he and Duncan crossed the track but not after — that the view was obstructed for the engineer as well as the truck driver for Pokorny by freight cars on the spur track which were on the south side of the main track and to the west of the crossing; and lastly, that the reason he waved to Mr. Kirkland was because he thought the presence of the box cars on the spur would obstruct his view and he might not see the approaching train.

J. M. SIMMONS (deposition read by defendant) :

Further testimony was read from his deposition as follows: Stated that when he saw the truck of Kirkland the train was four or five blocks west of the crossing— that he commenced blowing the whistle for the crossing and didn’t do anything else until he saw that Kirkland wasn’t going to stop. He testified as follows: “A. When I seen he wasn’t going to stop I plugged them, give them everything I had, you know.” He describes this operation as a total big-hole which, according to the record, means using everything at hand to try to stop the train. He testified: “I done everything I couíd do”. He then yelled to the fireman indicating they were going to hit the truck — that he began big-holing the engine three or four hundred feet west of the crossing — that in addition to the regular crossing whistles he blew a bunch of short whistles, indicating he was trying to draw the attention of the truck driver. His statement is as follows: “Q. —a bunch of short ones, is that what you mean? A. Yes, drew his attention.” Testified further as to how: he tried to stop the train — that it would take about a mile to stop á passenger train'like his at the speed he was' going —thathe had big-holed on similar occasions before. Further stated that when he saw truck driver approaching the crossing that, in his opinion he slowed down and then “stepped on it and then went on” and started across. Lastly, he testified as follows: “Q. Did you have any reason on earth to believe at that time that he wouldn’t stop before he went on the crossing? A. I thought he would stop.”

While we are naturally loath to burden this opinion with such a long résumé of facts, we feel that this case is serious enough that .such a résumé is necessary. Summarizing, it will be noted that some of the witnesses heard the train whistling, saw its headlight, and all who saw Mr. Kirkland testified that he never stopped his truck at any time while he was approaching this crossing at a time when the weather was clear and sunshiny. Appellants’ first point is overruled.

Appellants’ second point of error complains of the trial court’s action in sustaining the defendant’s objection to a hypothetical question propounded by appellants to witness R. E. L. Fogle, and likewise excluding his answer. The question and answer are as follows:

“Q. (By Mr. Watts) Mr. Fogle, when you are approaching a crossing where you have box cars located in such a position that you can’t see a man after you see him the first time, then they obstruct your vision to such an extent the second time you see him that he will be within sixty feet of the track whenever you are approaching. In that kind of a situation, knowing the obstruction of stock pen and box cars, and you are going 72 miles an hour and you see a truck headed in the direction of the crossing, is it customary for an ordinary and careful prudent engineer to use his air application of his brakes at that time ?
“A. Yes, I would put some air on the train even without closing the throttle.”

It will be immediately apparent that tht' question and answer are somewhat of a combination of an inquiry about custom and what an ordinary and careful prudent engineer would do at a certain time. We do not believe the trial court abused his discretion in excluding this matter, or that such exclusion, if wrong, was serious enough to be reversible error. In the first place it is not clear what particular time is meant when the engineer would apply air or brakes, as the record is clear that the operators of the defendant’s train saw the truck driven by Mr. Kirkland before it passed behind the stock pens and then again after it emerged, having made the turn around the stock pens; and from the testimony of the witnesses it is obvious that at. the second time the train operators saw Mr. Kirkland he was too close to the crossing, and the train itself much too close to the crossing to have stopped at the speed it was traveling. It will be remembered that Duncan and Ragsdale ■ said the train was probably three-quarters of a mile away when they crossed the track coming south, and this was before they met Mr. Kirkland down at the turn of the road. The witness himself (Mr. Fogle) testified that it would take approximately three-quarters of a mile to stop a train like this at the speed it was going, and he further testified as follows:

“Q. Now in running those passenger trains to make your schedule, you have got to get them out on schedule if you can?
“A. Yes, sir.
“Q. And isn’t it further true that if you stop that locomotive, or even slowed it down every time you saw a vehicle from a distance back from the crossing, you just wouldn’t make your schedule, that is true, isn’t it?
“A. Yes, that is true.
“Q. So you assume a man is going to stop until you realize he has gone too far to stop, don’t you ?
“A. Yes.
“Q. You have to do that?
“A. Yes.”

Appellee claims the witness’ answer is unresponsive, but the witness does say “Yes” and then goes on to say what he would have done. Finally, there is no evidence that the operators of defendant’s train failed to do all they could do, or all this witness would have answered they should have done, under the question and answer as contained in the bill of exceptions. In all fairness it must be conceded that the testimony by Mr. Fogle as to what he would have done under the circumstances is no indication that such would have been effective enough to prevent the accident, nor is it proof that the operators of defendant’s train failed to do so, or failed to do what should have been done under the provision of the discovered peril doctrine. We repeat — this question does not pin down the time about which the questioner is inquiring, and the answer likewise fails to indicate at which time the witness himself would have applied some air to the train. Therefore, we do not feel that the exclusion of the question and the answer, as appears in the bill of exceptions, was error on the part of the court. The trial court is given considerable discretion with reference to questions of this nature, and we do not think it was here abused. Appellants’ second point is accordingly overruled.

Appellants’ third point is directed at the court’s exclusion of Exhibit No. 18, which is a picture showing box cars and locomotives nearby the location of the accident. Appellee objected to introduction of the picture on the ground that it was cumulative and not properly reflective of the location of the box cars at the time of the accident.

We do not think the court committed error in excluding this photograph, as the record does not show that the photographer himself was able to properly authenticate the locations and objects in the picture. Appellants attempted to verify the picture by the witness Bridges, but this witness testified that he was on the highway north of the train and the box cars; that he was traveling along at about sixty miles an hour toward Midland, and that he never went south of the tracks; and it is obvious that this picture was taken south of the tracks and crossing. Bridges also testified that the passenger train passed him just before it struck Mr. Kirkland. He remained at the scene of the accident after the train had struck Mr. Kirkland and cleared the crossing. Bridges was somewhat uncertain as to which track the box cars were on, but did say that he thought they were about like they were in the picture. We do not believe that the exclusion of this photograph was error because we do not feel a proper predicate for its admission was ever laid, and it is not clear why the inclusion of this photograph would likely have changed the jury’s answers to the issues of proper lookout and discovered peril. It will he remembered that all the witnesses who saw Mr. Kirkland before the accident were unanimous in saying that he did not ever stop his struck. The jury did find this was a hazardous crossing, but we do not see how the exclusion of the photograph would constitute reversible error with' regard to any of the issues or the answers thereto. No one contradicted operators of defendant’s train that they did all they could do to prevent the tragedy — they had seen Mr. Kirkland twice as he approached the crossing; and with reference to Mr. Kirkland’s keeping a proper lookout, several witnesses (called by both parties) testified that this train was approaching the crossing on a sunshiny morning from a westerly direction, with light on and whistle blowing before and during the accident. Nor is there any evidence why Mr. Kirkland did not stop or slow down as he approached the crossing. Lastly, we repeat, we do not believe that appellants were able to lay the proper predicate for the admission of the pióture. We feel, therefore, that we must overrule this point.

Having overruled all of appellants’ points, the judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    Leroy HOWARD, Appellant, v. WESTERN CHEVROLET COMPANY, Inc., et al., Appellees.
    No. 3830.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 18, 1963.
    Rehearing Denied Nov. 15, 1963.
    Bryant, Glenn & Thomas, Allen Glenn, Abilene, for appellant.
    Bradbury, Tippen, Brown & Clement, Foy Clement, Abilene, for appellees.
   WALTER, Justice.

Leroy Howard filed suit against Western Chevrolet Company for breach of contract. Western agreed to purchase eighteen months insurance for Howard on an automobile he had purchased from Western. Based on a verdict, judgment was rendered that Howard take nothing. Howard has appealed.

On the 20th day of June, I960, at approximately 8:30 p. m. Howard purchased a Cadillac automobile from Western. The parties stipulated that the Cadillac burned between the hours of 7:30 and 8:00 p. m., December 20, 1961. Western, in reply to Howard’s request for admissions, admitted that Howard, on the 20th day of June, 1960, at approximately 8:30 p. m. purchased a 1957 Cadillac automobile from Western; that, contemporaneously with the purchase of said car, a conditional sales contract was executed by Howard as purchaser and Western as seller; that the contract provided for required automobile insurance for a term of eighteen months; that the contract provided that Howard pay Western $160.50 for the insurance; that Western was an agent of Motors Insurance Corporation at such time; that Western caused a policy to be issued to Howard for a policy period of from June 20, 1960, at 12:01 a. m. to December 20, 1961, to 12:01 a. m. Central Standard time; that said policy period was for a lesser period ■ of time than eighteen months and that Howard gave timely notice of loss to Western and the insurance company.

The request for admissions and Western’s reply thereto were not formally introduced into evidence. They were, however, timely filed with the clerk. Appellees’ contention that its admissions could not be considered is without merit. In Fuller Nurseries & Tree Service v. Jones, Tex. Civ.App., 253 S.W.2d 946, the court said:

“For us to give the rule the meaning attributed to it by appellant would require us to hold that before the admissions could have any effect as such they must be formally introduced in evidence at the trial, and thus require that issues already litigated and determined by the request for admissions and the reply, and about which there is no controversy, must again be determined by a finding of the trial court as to the truth or falsity of the admissions. Such is not the purpose of the rule. Authorities, supra. In Masten v. Masten, Tex.Civ.App., 165 S.W.2d 225, 227, error ref., the court said:
“ ‘There are perhaps conditions under which a party would be heard in court to deny statements and admissions previously made by him against interest, but we think the effect of Rule 169 is comparable to a legal admission made in the applicable pleadings of a party, which will admit of no denial by him.’ ” Also see Montgomery v. Gibbens, Tex. Civ.App., 245 S.W.2d 311.

Appellant contends the court erred in overruling his objection to the submission of the following special issue: “Special Issue No. 7:

Do you find from a preponderance of the evidence that the plaintiff accepted the insurance policy as furnished to him by the defendant? Answer: He did so accept. He did not so accept.” The jury answered. “He did so accept.”

Appellant objected to the special issue because it presented an affirmative defense which was not pleaded by the appellee. He also objected because “accept” was definable either as a synonym for “received” or as a synonym for “acquiesced in”, and he objected to the word “accept” for the reason ,that said term was not defined.

Appellee answered by filing a general denial and contends that it was not necessary for it to plead its affirmative defense, because its general denial put in issue all of the matters alleged by Howard. Howard sued Motors Insurance Corporation and Western, but before trial he took a non-suit as to the Insurance Company. The insurance policy which was attached to Howard’s petition contained the following:

“By acceptance of this policy, the insured named in item 3 of the declarations agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.”

Howard pleaded that Western agreed to purchase the insurance for a period of 18 months; that the policy period was from June 20, 1960, at 12:01 a. m. to December 20, 1961, at 12:01 a. m., Central Standard Time, and that said policy was issued for a lesser period of time, to-wit, for a period of 17 months, 29 days, 20 hours and 29 minutes. It was in connection with these allegations that the insurance policy was attached as an exhibit. Howard’s cause of action against Western was predicated upon a contract' and not upon the insurance policy. No allegation in his petition suggests that he accepted the policy and released Western from its contract to furnish the required insurance.

In Burks v. Watson, 48 Texas 107, at page 115, the Court said:

“An exhibit to the petition, therefore, may be said to be made in aid- of or in elucidation of allegations; but it does not, by itself, constitute allegations upon which issues may be formed irrespective of the allegations made in relation to it. If the exhibit is contradictory of, or not correspondent in legal effect to, the allegations concerning it, then the allegations stand unsupported and unaided by it, and the issues must be formed and tried on the allegations as made in the petition.”

Burks v. Watson, supra, was quoted with approval on this point by the Supreme Court in Port Huron Engine & Thrasher Company v. McGregor, 103 Tex. 529, 131 S.W. 398. Also, the Supreme Court in Macdonell v. International & G. N. Ry. Company, 60 Texas 590, at page 594, said:

“In such case, however, a petition should contain such averments as may be necessary in the cause, the object and purpose of the exhibit being to aid and explain the pleading.”

We are of the opinion that the court erred in submitting Western’s affirmative defense because it was not raised by the pleadings. Rule 279, Texas Rules of Civil Procedure. The ends of justice will be better served by remanding the case for a new trial.

The judgment is reversed and the cause is remanded.


author: BELL, Chief Justice.

text:
    Annis Russell RUTHERFORD, Appellant, v. Elton Aldridge RUTHERFORD, Appellee.
    No. 14197.
    Court of Civil Appeals of Texas. Houston.
    Oct. 17, 1963.
    Rehearing Denied Nov. 21, 1963.

      John E. Lewis, Harlingen, for appellant.
    No brief filed for appellee.
   BELL, Chief Justice.

Appellant was granted a divorce from ap-pellee. The trial court awarded custody of the children to appellant with visitation rights in appellee, and determined the rights of the parties with regard to their community property and certain separate property belonging to the wife. The court found appellee had an equity of $2,000.00 in the home and adjudged such equity to be in him, and awarded the title to the property to appellant and impressed appellee’s equity with right of use for the children so long as the property was used as a home or until the youngest child should reach 21 years of age or until appellant should remarry. The court also found appellee was indebted to appellant in the amount of $409.00. It allowed attorney’s fees against appellee in the amount of $750.00. A personal judgment was rendered against appellee for the aggregate of these two amounts and for costs of court and execution was provided for. Court costs, as shown by the District Clerk’s certificate, amounted to $53.40.

Appellant complains that the trial court was in error in not offsetting these amounts, which total $1,212.40, against the $2,000.00 equity in the home, leaving appellee an equity of $787.60.

A great deal of discretion is vested in the trial court in connection with the division of the community property. Unless there is an abuse of discretion, we will not disturb the trial court’s action. While we, had we been sitting as the trial court, might have done as appellant urges, we cannot say the court abused its discretion in not so doing.

As it stands, appellant has her remedy. She has a personal judgment and can levy execution.

The cases relied on by appellant are not controlling. They merely hold the trial court has the power in dividing the community property to charge the entire attorney’s fee against the husband. This in effect is what the trial court did here. As a matter of mere procedure he did not offset it against appellee’s community equity.

Judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Estella K. McCURDY, Appellant, v. David Eugene McCURDY, Independent Executor and Trustee under the Will of Royce Weldon McCurdy, Deceased, Appellee.
    No. 4166.
    Court of Civil Appeals of Texas. Waco.
    Oct. 31, 1963.
    Rehearing Denied Nov. 21, 1963.

      Smith, Mcllheran & Jenkins, Jon Dee Lawrence, Weslaco, for appellant.
    Coneway & Forrester, Harlingen, for ap-pellee.
   WILSON, Justice.

The problem we are required to solve is whether proceeds of life insurance policies issued to the insured husband before marriage naming his estate as beneficiary (a) belong to the separate estate of the husband after his death, only in proportion to the amount of premiums paid by him before marriage; or (b) belong entirely to his separate estate, with right of reimbursement to the community based on the amount of premiums paid from community funds during marriage. Appellant urges the first solution; appellee the second, adopted by the trial court, and by us.

The facts are stipulated. Insured and his wife were married August 3, 1960, and their marriage continued until his death, March 16, 1962. Both policies of life insurance were issued to the insured husband before marriage, naming his estate beneficiary. One policy was issued May 22, 1956; the other, February 13, 1959. The 1959 policy was “converted” February 12, 1962, as authorized by the original policy. The nature of the conversion is not shown. Of the total premiums on the two policies, $1094.66 was paid by the husband before marriage; $657.60 was paid during cov-erture from community funds. The executor named in the husband’s will listed the proceeds as a part of the husband’s separate estate. The widow’s action against the executor sought determination of the status of the proceeds. The trial court concluded the proceeds constituted a part of the husband’s separate estate and decreed that the community estate of husband and wife should be reimbursed on the basis of the payments made out of community funds for premiums. The policies are not in evidence. No issue of fraud is suggested by the parties. There is no other evidence. The pleadings allege insured’s will made specific bequests of $3000 each to his widow and their two children, of $5000 to his parents, with the rest of his estate to be held in trust for the use of his parents, his brother and his widow, who is appellant here.

The problem is directly presented for the first time in this State under these facts. In all other cases we have examined which reached the question, and where the beneficiary was insured’s estate, the policies were issued during marriage. Our decision is restricted to the stated facts.

In Brown v. Lee, Tex., 371 S.W.2d 694, 7 S.Ct.J., 10, The Supreme Court said that by amendment of the definition of “property” in Art. 23(1), Vernon’s Ann.Tex.Stats., to include “life insurance policies, and the effects thereof”, the Legislature has “aligned Texas with other community property states in adhering to the theory that the right to receive insurance proceeds payable at a future but uncertain date is ‘property.’ Such property is said to be in the nature of a chose in action which matures at the death of the insured”. In that case, however, the policy was also issued during coverture.

In approaching solution to this problem we must look somewhat beyond the immediate consequences of decision in this case. A dominant factor in our conclusion is an effort, within the broad principles of dissonant precedent, to fit life insurance proceeds under the present facts to the pattern of Texas community property law as applied to other types of property. This the Legislature has apparently sought to do by amending Art. 23, Sec. 1.

That pattern, as to realty, title to which is acquired before marriage, and a portion of the consideration for which is thereafter paid from community, fixes the character of title at the time of its inception or acquisition. It “depends upon the existence or nonexistence of the marriage at the time of the incipiency of the right in virtue of which the title is finally extended.” Creamer v. Briscoe, 101 Tex. 490, 109 S.W. 911, 912, 17 L.R.A.,N.S., 154, 130 Am.St.Rep. 869. In such a case as this, realty is held to be the husband’s separate property. Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328, 334.

The Supreme Court of Louisiana had settled the present problem in 1886 in In re Moseman’s Estate, 38 La.Ann. 219, by holding that where a life insurance policy was acquired before marriage, payable to the insured husband’s estate, under community property law the right to proceeds remained the insured’s separate estate, as vested before marriage, notwithstanding part of the premiums were paid thereafter from the community. Twelve years later Chief Justice Gaines utilized that very holding to establish the analogy to realty similarly acquired, Welder v. Lambert, 91 Tex. 510, 44 S.W. 281, 284; and to sustain the holding that a fixed contract right acquired before marriage was property the “character [of which] takes its impress from the date of the contract.” The Texas pattern is not generally different as to personalty. Schmidt v. Huppman, 73 Tex. 112, 11 S.W. 175. See Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 568.

The grappling by Texas courts with the community property aspects of life insurance has been admirably analyzed by William O. Huie, 5th Ann.Taxation Conf., II Texas Institutes, 104, 109 (1957), 17 Tex.L. Rev. 121, 146; 18 Tex.L.Rev. 121, 147 (1940); by Judge Wisdom, Commissioner of Int. Rev. v. Chase Manhattan Bank, 5 Cir., 259 F.2d 231, cert. den., 359 U.S. 913, 79 S. Ct. 589, 3 L.Ed.2d 575; and by George E. Ray, 26 Tex.Bar Journal 835. It is not necessary to repeat the analysis.

Why do we not adopt the California solution formula of proportionate premium payments suggested by the respected author of the first cited treatises? California has done what we think should here be done; it has made its solution as to life insurance proceeds consonant with its other community property law. In Modern Woodmen of America v. Gray, 113 Cal.App. 729, 1931, 299 P. 754, where it first considered the problem, the California court stated it would apply the apportionment method so as to follow the California rule as to realty: that the inception of title doctrine does not apply (citing Vieux v. Vieux, 80 Cal.App. 222, 251 P. 640, where the latter principle was reflected). In Forbes v. Forbes, 118 Cal.App. 324, 257 P.2d 721, 722, the same court confirms its reason: “Contrary to the rule adopted in most community property states, under which the community has only the right of reimbursement for payments made with community funds”, it is stated, “California gives to the community a pro tanto community property interest in such property in the ratio” which the separate and community payments bear to each other in the case of other types of property; and “[t]he same rule has repeatedly been applied in the case of life insurance policies procured by the husband before marriage.” Apparently Washington also has followed its general tracing rule, see Jacobs v. Hoitt, 119 Wash. 283, 205 P. 414; In re Coffey’s Estate, 195 Wash. 379, 81 P.2d 283, 286.

We think our decision harmonizes with what is said to be elsewhere the general rule: “If either spouse before marriage procures a policy of life insurance on his own or another’s life, in his favor or in favor of his estate, the policy and its proceeds are his separate property. His rights to the proceeds date from the policy.” McKay, Community Property (2d ed.) Sec. 479, p. 316. It is consistent with the holdings of the Supreme Court of New Mexico, In re Miller’s Estate, 44 N.M. 214, 100 P.2d 908, 910 syl. 2; and of Louisiana, In re Moseman’s Estate, 38 La.Ann. 219.

Two reasons for applying the tracing principle to give proportionate ownership of proceeds are suggested, II Texas Institutes, supra, 111: (a) simplicity; (b) just results. These are good reasons, and we have carefully considered others. It does not appear that the inception of title rule is less simple: each method requires computation of the amount of premiums paid out of community funds. Many incidental problems resulting from attempted application of the proportionate ownership rule are avoided. If simplicity be a virtue, we think the inception of title rule is simpler. It facilitates application of general principles of community property law. The inception of title rule is not less equitable in results. While in this case the proceeds which would be proportionately attributable to the community under the tracing theory happened to exceed the community premium payments, in another case the gross premiums so paid out might well exceed the total proceeds. To permit the nature of the property to be determined by the monetary result is not necessarily equitable; and apparent inequity may result under either method, depending on the facts in each case.

In II Texas Institutes, above, the query is presented: “How are orthodox principles to be applied when there is a change of marital status ?” We believe the inception of title test applied to other forms of property, though arbitrary, is more conducive to uniformity and a degree of certainty under the present facts; and that (although there is much to be said for the proportionate method) this is the best method by which orthodox principles may be here applied.

In our opinion the proceeds of the policies constitute the separate estate of the deceased insured, and the community estate is entitled to reimbursement on the basis of premiums paid with community funds. Affirmed.

      . In Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481, ¾ of the premiums on a policy issued before marriage, naming insured’s estate as beneficiary, were paid before marriage; ¼ were paid from community funds. The majority did not reach the present question; but the minority, who would have held the proceeds constituted property possessed at dissolution of the marriage, urged that if the proceeds were property, they were separate property of the insured’s estate, with community right to reimbursement for premiums contributed. The majority also, it appears, 288 S.W.2d at 485, would have rejected the California and Washington rule.


author: PALMORE, Judge.

text:
    SECURITY TRUST COMPANY, a Corporation, ex rel. Dages I. Boyle, Shareholder, Appellant, v. E. S. DABNEY et al., Appellees.
    Court of Appeals of Kentucky.
    June 21, 1963.
    Rehearing Denied Dec. 13, 1963.

      Frank S. Ginocchio, Lexington, for appellant.
    Stoll, Keenon & Park, Harbison, Kes-singer, Lisle & Bush, Lexington, for ap-pellees.
   PALMORE, Judge.

On January 10, 1961, pursuant to a resolution theretofore adopted by its board of directors, the shareholders of Security Trust Company, of Lexington, Kentucky, a state banking and trust company under KRS Chapter 287, approved an agreement of consolidation with First National Bank and Trust Company of Lexington. Seven days prior to this action one of Security’s shareholders, D. I. Boyle, acting derivatively (KRS 271.605) for and in the name of Security, brought suit against its officers and directors and against First National, demanding that the agreement and proposed consolidation be adjudged unlawful and the defendant officers and directors of Security be required personally to indemnify plaintiff against a loss of $360,000 (later amended to $650,000) which, through the proposed exchange for shares in the re-organized First Security National Bank and Trust Company of Lexington, allegedly would result to some 12,000 shares of Security’s own stock held by it in its various fiduciary capacities.

The trial court sustained defendants’ motions to dismiss the complaint (as twice amended after the shareholders’ meeting of January 10, 1961) and, plaintiff having declined to plead further, entered judgment accordingly. Plaintiff appeals.

As the terminology of KRS 271.605 implies, a stockholder’s derivative suit must state a cause of action existing in favor of the corporate entity itself. 13 Fletcher, Cyclopedia of Corporations, § 559, p. 1274; Louisville Bridge Co. v. Dodd, 27 Ky.Law Rep. 454, 85 S.W. 683 (1905). The wrongful act for which a derivative suit will lie may be “(1) an ultra vires or illegal act of the corporate officers or of majority stockholders, (2) a fraudulent or unfair act of the corporate officers or majority stockholders, or (3) the wrongful act of a third person.” 13 Fletcher, Cyclopedia of Corporations, § 5951, p. 439. “Stockholders’ suits are especially important as a remedy for minority stockholders to call directors and controlling stockholders to account for mismanagement and fraudulent manipulation. In most cases there is a corporate right of action, but in some situations both an individual and a corporate right may arise.” Id., § 5941, p. 413.

“While an injury to the corporation resulting from wrongdoing, fraud or negligence of corporate officers operates, indirectly, as an injury to stockholders, the injury to stockholders is secondary and the injury to the corporation primary. A stockholder cannot, as an individual as distinguished from a representative of the corporation, sue directors or other corporate officers for mismanagement, negligence or the like, on a cause of action which belongs to the corporation. * * * He cannot sue to set aside a contract made in fraud upon corporate rights. * * * Improper manipulation of funds by the controlling stockholder creates a cause of action in favor of the corporation rather than in favor of a stockholder as an individual, as does a wrongful diversion of corporate assets.” Id., § 5924, pp. 395-396.

KRS 271.605 provides that a stockholder’s complaint to enforce secondary rights shall “set forth with particularity the effort of such shareholder or shareholders to secure from the directors and, if necessary, from the other shareholders the desired action, and the reasons for failure to obtain such action or the reasons for not making such effort to obtain such action.” This requirement appears to have been taken from Rule 23(b) of the Federal Rules of Civil Procedure, which in turn is an enlargement of old Equity Rule 27. Cf. 3 Moore’s Federal Practice, R. 23, p. 3489 et seq.

With these fundamentals in mind, we shall first take up appellee’s contentions that (1) a stockholder’s derivátive suit will not lie in this case, and (2) in any event the proceeding must fail because the complaining stockholder made no effort to secure the desired action within the corporation itself, through the other shareholders, before bringing suit.

According to the contract between the two banks, in round figures and subject to certain adjustments Security’s 40,000 shares of stock outstanding had an estimated fair value of $4 million and First National’s 100,000 shares $6 million, on which basis the 200,000 shares to be issued by the reorganized company in exchange therefor would be divided 80,000 to Security’s and 120,000 to First National’s stockholders. The assets contributed by the respective parties were to be passed on and be acceptable to a committee of six, three appointed by each board of directors. The plan was proposed pursuant to the procedures set forth in 12 U.S.C.A. § 215, requiring approval of the Comptroller of Currency, and to § 368 of the Internal Revenue Code as a tax-free reorganization. Until the next annual meeting, the new bank would be governed by a board of 15 named directors, six of whom were members of Security’s board. Those of Security’s directors not so named were to serve as “advisory directors” until the next annual meeting.

After pleading the contract as an exhibit, the complaint launches a barrage of conglomerated charges, some of which, if true, would more appropriately serve as the basis for individual rather than corporate relief, some of which go strictly to the question of business judgment and, standing alone, would not provide a cause of action of any sort, and some of which actually do sound in the area of mismanagement, which is a proper subject of derivative relief. Shorn of conclusions and uncomplimentary adjectives, the factual content of the complaint and amended complaints may be categorized as follows:

A. The transaction is tainted with self-interest on the part of Security’s directors, in that they are designated as members or advisory members of the new board of directors until the first annual meeting of shareholders.

B. It is a bad business deal for Security’s stockholders and trust accounts. This is the net effect of charges that (1) Security’s power and prestige will be dissipated through loss of identity into and absorption by the new and larger association, (2) Security’s stockholders will be reduced from 100% to 40% ownership and, without good reason for such a move, will lose managerial control, (3) the new stock to be received in exchange will have less value than Security’s old shares, a circumstance resulting wholly or in part from the fact that the “fair value” of Security’s stock is substantially in excess of the amount at which it is valued in the contract and the further fact that the fair value of First National’s stock, as established by the contract, included an item of $400,000 for good will, whereas nothing is allowed to Security for good will, and (4) by virtue of the consolidation Security’s stock, including that which is held in its trust accounts, will become subject to First National’s liabilities.

By the first amended complaint it is alleged that the fair value of Security’s stock held in its fiduciary capacity is $660,000 (instead of $360,000 as set forth in the complaint) more than the amount agreed upon in the contract, the larger value having been established by a bona fide offer to purchase such stock.

C. The initial board of the re-organized company will be constituted by contract rather than by election, depriving the shareholders of their statutory right of cumulative voting. Cf. Const. § 207.

D. The first amendment of the complaint alleges that at the stockholders’ meeting on January 10, 1961, the vote was counted as 31,688 shares for and 7300 shares against the proposal. Of the 31,688 majority vote 9,347 were shares held by Security and 812 by First National in their respective trust accounts. (Elimination of the trustee stock would reduce the favorable vote to less than the required two-thirds.)

E. The second amended complaint sets forth a provision of 12 U.S.C.A. § 61 to the effect that no officer, clerk, teller or bookkeeper of a national bank shall act as proxy in voting its shares, and alleges that of the 31,688 votes in favor of the proposal 18,774 shares were voted by Security’s officers as proxies.

Deferring for the moment the question of whether, on the merits, the complaint as amended states a cause of action, we have no difficulty in concluding that from a technical standpoint the principal type of relief demanded — -a declaration that the plan cannot lawfully be consummated — is the proper subject of a derivative action, because the focal issues are, in substance, whether the questioned actions are ultra vires and whether they reflect mismanagement and self-dealing to the detriment of the corporation and in breach of the fidelity owed by its officers and directors to the stockholders. (Since, however, we have concluded also that on the merits the facts do not warrant such relief, it is unnecessary to consider the propriety of the demand that the individual officers and directors be required to indemnify against loss in value of its trustee stock.)

In Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936), it was held that stockholders who had sought unsuccessfully to have a corporation extricate itself from an .allegedly illegal contract could maintain a derivative action against the directors and the other contracting party to annul the contract. In a separate concurring opinion Mr. Justice Brandéis took issue with this particular aspect of the majority opinion, pointing out that since a corporation would be estopped from contesting the validity of its own contract, so should a shareholder suing in the corporate right. However that may be, we think that where the other contracting party is on notice before the agreement becomes final and binding, and proceeds nevertheless to conclude it, he could not thereafter defeat a derivative action by the disgruntled stockholders on the technical ground that the corporation cannot contest its own contract. In such a case the derivative action, if successful, would have the effect of proving that the contract was not the authorized act of the corporation.

The opinion of a federal district court in Sobel v. Whittier Corp., D.C.Mich., 95 F.Supp. 643 (1951), holding that a stockholders’ derivative suit to prevent a corporate merger will not lie is not supported by the text therein quoted as authority. The excerpt from General Inv. Co. v. Lake Shore & M. S. Ry. Co., 6 Cir., 250 F. 160, 174, says merely that F.R.C.P. 23(b) “has no application to a suit brought by a stockholder against the corporation seeking, in his own direct right, to enjoin it from doing an illegal act.” (Emphasis added.) The quotation from Moore’s Federal Practice (Vol. 3, R. 23, pp. 3508-3509) states specifically that actions “to enjoin those in charge of the corporation from causing it to commit an ultra vires act” are within the rule and, in referring to injunctive proceedings against a proposed merger or consolidation, says that they are not so “where a shareholder sues on behalf of himself and all others similarly situated.” (Emphasis added.) 'Certainly these authorities do not support the proposition that a contract of merger or consolidation cannot be enjoined or rescinded by a stockholders’ derivative action, and we hold that it can.

With respect to compliance with KRS 271.605, the complaint alleged that it would have been futile for the relator Boyle to request appropriate action by the defendant officers and directors. His failure to make any allegation with respect to the other stockholders of Security may have been fatal to the complaint in the beginning, but we think the defect was cured by the amended complaint showing that in spite of the pendency of this action the other stockholders had voted to approve and carry out the proposed consolidation. Surely this development provided clear enough indication that an effort to secure annulment of proceedings through direct corporate action would be useless.

We come now to the practical merits of this lawsuit, which will be discussed by reference to the five categories into which the allegations of the complaint have been heretofore classified in this opinion.

A. It is clear from the face of the complaint that the alleged self-interest on •the part of Security’s directors lies entirely in the fact that pursuant to the contract some of them will have directorships, and others advisory directorships, on the board of the reorganized company.

In Seagrave Corp. v. Mount, 6 Cir., 212 F.2d 389 (1954), a stockholders’ derivative suit to enjoin a proposed consolidation was sustained because of a side agreement (which was, however, disclosed in the prospectus) whereby the stock of two of the directors would be purchased for substantially more than its value on the stock exchange, more than other stockholders would or could obtain for their shares, and a further understanding on the part of three other directors that they would be retained in their positions as managing officers of the company, positions on which they had a precarious hold because of dissension with the majority group whose interests were being bought out incident to the proposed consolidation.

We have here no such situation as existed in the Seagrave case. No one’s stock is being bought at a premium, and there is no hint of any threatened removal from office which might be eliminated by the merger, thus tainting with self-interest the discretion of the affected directors. To make a long story short, we do not believe that the mere obtention of a directorship on the board following merger or consolidation creates a disqualifying self-interest. Were it so, many a merger would be impossible. Usually such an arrangement is considered indispensable to the interests of the respective corporations, both old and new. In the absence of special circumstances indicating otherwise, we presume that to be the case in this instance.

B. All of the allegations in category B address themselves to the matter of business judgment. Absent fraud, actual or constructive, the courts will not interfere with the management of a private corporation. Carter v. Louisville Ry. Co., 238 Ky. 42, 36 S.W.2d 836, 838 (1931); Venus Oil Corporation v. Gardner, 244 Ky. 176, 50 S.W.2d 537 (1932). If, as contended, Security’s trust accounts will suffer loss through wrongful imprudence, this suit does not abridge or affect any redress to which the beneficiaries of the various trusts may be entitled.

C. That the directors serving until the first annual meeting of the re-organized company will serve by contract rather then election is a reasonably necessary incident of the merger. As in the case of category A, such an arrangement would generally be considered vital to an orderly transition, outweighing the very temporary and technical suspension of cumulative voting rights.

D. The voting by Security of its shares held in trust is upheld in Graves v. Security Trust Company, Ky., 369 S.W.2d 114, decided today. Again, in the absence of fraud or other special circumstances' (such as a real and substantial self-interest), we see no reason why a corporation should not be permitted to vote shares of its own stock legally held by it in a fiduciary capacity.

E. 12 U.S.C.A. § 61 does not apply to state banks. Security was a state bank and a separate entity from First National at the time of its stockholders’ meeting on January 10, 1961. Our statutes contained no provision disqualifying its officers from acting as proxies.

Concluding now with the procedural disposition of this case by the trial court, the appellant relator contends, in effect, that on the basis of his charges of self-dealing and unfair manipulation to the detriment of the corporation and its cestuis que trustent he has the right to prove facts not specifically set forth in the complaint and, therefore, even if the pleaded facts do not disclose a cause of action his complaint is good against a motion to dismiss. It is, of course, elementary that under the Civil Rules a complaint need only give fair notice of a cause of action and the relief sought. Clay, 6 Kentucky Practice, Rule 8.01, Note 3 et seq. But still it must disclose a cause of action. The complaint in this case, as amended, makes it perfectly clear that the pleader has said all he has to say, that he has, as it were, shot his bolt. He approaches a cause of action only in the allegations of self-interest on the part of the directors, and in this respect the fair import of the complaint is that the directorships on the re-organized board are the sole and particular basis for those allegations. Where a plaintiff chooses to state his complaint in full detail, in lieu of the simple form sufficient under the Civil Rules, and neither its contents nor the inferences reasonably to be drawn from them will support his claim for relief, a motion to dismiss serves substantially the same purpose as a motion for summary judgment and should be sustained. It is our opinion that the trial court did not err in this respect

The judgment is affirmed.

      . “In a suit brought to enforce a secondary right on the part of one or more shareholders of a corporation, because tbe corporation has refused to enforce rights which may properly he asserted hy it,” etc. (Emphasis added.)

      . See Wilson v. Louisville Trust Co., 242 Ky. 432, 46 S.W.2d 767, 770 (1932). There is, of course, no plea of estoppel in this case.

      . The rule, from which our KRS 271.605 is taken, making demand upon the directors and other shareholders a condition precedent to maintenance of a derivative action.

      . This would, of course, be a representative or class action to enforce primary rights of the shareholders.

      . Indeed, the term “side agreement” is ill-used by appellant, since the arrangement is set forth in the body of the contract proposing the plan of re-organization.