author: NORTHCUTT, Justice.

text:
    Myrtle MESSER et al., Appellants, v. Esther JOHNSON, Appellee.
    No. 7706.
    Court of Civil Appeals of Texas. Amarillo.
    April 24, 1967.
    Rehearing Denied May 29, 1967.

      Allen & Allen, Perryton, Gibson, Ochs-ner, Harlan, Kinney & Morris, J. Hadley Edgar, Jr., Amarillo, of counsel, for appellants.
    Gene E. Steed, Perryton, Linn & Helms, Richard N. Countiss, Spearman, of counsel, for appellee.
   NORTHCUTT, Justice.

This is a suit in the nature of trespass to try title and for construction of a will. On August 9, 1943, John E. Johnson and Pearl Johnson were husband and wife and at which time they purchased the land here in question from H. T. Smith, individually and as community administrator of the community estate of himself and deceased wife, Lillian V. Smith, for the consideration of $12,480.00. John E. Johnson’s name also appeared as grantor and he also signed the deed and acknowledged that he executed the same for the purposes and consideration therein expressed. The deed as expressed in both the granting and habendum clauses was to Pearl Johnson as her sole and separate estate and to her sole and separate use. Pearl Johnson died testate in 1961 and under the terms of her will John E. Johnson was named the independent executor under the will and J. E. Johnson was given all of Pearl’s personal property and was given, devised and bequeathed the control, use, possession, proceeds and income from all the real property of every description, howsoever acquired and wherever situated that she might die seized and possessed at the time of her death for and during his lifetime. John E. Johnson was also given the right to sell or mortgage any portion of Pearl’s real estate that might be necessary for his comfortable support. The will then provided that after the death of John E. Johnson she devised all of her real estate to other parties and those parties so far as this appeal is concerned are the nieces and nephews of Pearl Johnson. John E. Johnson filed this suit in trespass to try title against these defendants and to construe Pearl Johnson’s will, seeking to establish community ownership because John E. Johnson and Pearl Johnson intended that the land should be community property and it was intended that Pearl Johnson have title to the land as trustee for the community estate on the theory of resulting trust. John E. Johnson transferred all his interests in the real property here involved to his present wife, Esther Johnson, and she was substituted as party plaintiff.

Esther Johnson, hereinafter referred to as plaintiff, contended the real estate here involved was the community property of John E. Johnson and Pearl Johnson and all of the parties interested in this appeal, hereafter referred to as defendants, contended the real estate was the separate property of Pearl Johnson.

The case was tried to a jury upon four special issues. In answer to those issues the jury found (1) that at the time the land in question was conveyed to Pearl Johnson that John E. Johnson and Pearl Johnson intended that such land would be community property of John E. Johnson and Pear! Johnson, (2) that the land in question under the title thereto was conveyed to Pearl Johnson in trust for the use and benefit of Pearl Johnson and John E. Johnson, (3) that John E. Johnson knew the contents of the will of Pearl Johnson dated October 13, 1959, and (4) that John E. Johnson knew the contents of the will of Pearl Johnson on October 13, 1959.

Judgment was entered upon the verdict of the jury as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Section Fifty (50), Block Eleven (11), W. Ahrenbeck and Brothers Survey, Ochiltree County, Texas, was the community property of John E. Johnson and his deceased wife Pearl Johnson, and that, upon the death of Pearl Johnson, the last will and testament of Pearl Johnson gave John E. Johnson a life estate in the community interest of Pearl Johnson in said land and the power to sell or mortgage any portion of Pearl Johnson’s interest in said land that may be necessary for his comfortable support and the authority to execute deeds of conveyance, or mortgages or deeds of trust to secure any lender or lenders, as the case may be, of any portion of Pearl Johnson’s interest that John E. Johnson may find it necessary to sell for his said support; therefore, upon the death of Pearl Johnson, John E. Johnson was the owner in fee simple of an undivided one-half interest in said land and the owner of a life estate with the foregoing powers in the remaining undivided one-half interest in said land, and by virtue of a conveyance to Esther Johnson from John E. Johnson, Esther Johnson is now the owner in fee simple of an undivided one-half interest in said land and the owner of the life estate of John E. Johnson in the remaining undivided one-half interest in said land.”

From that judgment the defendants perfected this appeal.

Although the defendants assign 49 points of error in this appeal, they are grouped under five subdivisions and state only three or four basic propositions of law. As we view the matters here involved they are the effect of John E. Johnson’s signing the deed with H. T. Smith, deeding the land to Pearl Johnson as her separate property; the recitation in the deed making the property the separate property of Pearl Johnson; the admissibility of evidence and the sufficiency of the evidence to sustain the findings of the jury.

Plaintiff and defendants both introduced in evidence the deed to Pearl Johnson. Plaintiff introduced the check signed by John E. Johnson to H. T. Smith in the sum of $12,445.72, for Section 50, Block 11. Plaintiff introduced certificates showing that John E. Johnson paid all the taxes on said property. John E. Johnson’s first wife was Bell Sheare and to that marriage was born two children, a girl who died in infancy and a son by the name of Samuel Homer Johnson. John E. Johnson testified that Samuel was very unruly and very hard and money-mad and that Samuel had threatened him and that he and his wife, Pearl Johnson, were afraid of Samuel and he put this land in Pearl’s name so that if he had disappeared, she would have had something to have lived on. John further testified he discussed with his wife, Pearl, that he believed he would put the land in her name in order if he got “bumped off” she would have something to go on and that Samuel couldn’t touch her. Mrs. W. E. DePugh, a very close friend of Pearl Johnson, testified that she and Pearl Johnson discussed such matters and that Pearl told her why this land was in Pearl’s name; that Pearl stated John had placed this property in Pearl’s name because of Samuel, that they were very much afraid after the kind of life Samuel had lived there might be an heir of his or some woman he may have married come in and lay claim to some of the property. Ray Batman, a longtime acquaintance of John E. Johnson, testified he knew the reputation of Samuel was bad and knew both Pearl and John E. Johnson were afraid of Samuel and that anyone that knew him was afraid of him and that he had a long criminal record. He further testified they discussed about Samuel causing a lot of static and they thought best to put it in Pearl’s name and so John E. was willing to let Pearl take it in her name. Cecil Teavis testified he rented the land from John E. Johnson since about 1954 and never dealt with Pearl Johnson and she never made any declarations to him that it was her property. They had the land in the government program and Mr. Johnson signed the papers for the government program but Mrs. Johnson never did sign any of the government papers. Jack Todd testified he knew Samuel’s reputation and that Samuel couldn’t stay out of trouble. He was charged with crime many times in his adult life and that he died in Folsom Prison. Todd testified on cross-examination that Samuel stopped by Todd’s place in 1942 or ’43 and had another fellow with him and he told Todd he was going out and settle with John E. Johnson the estate that day.

When John E. Johnson signed the deed with H. T. Smith transferring the property to Pearl Johnson as her separate property he had no interest in the property and could transfer no interest in the land. He could not give the property to her because he had nothing to give, then the only consideration that could be given to the fact that he signed the deed would be whether he was confirming the property to be her separate property. We think the record in this case clearly shows why the property was deeded to Mrs. Johnson as her separate property. Her declarations may be shown as to show she held the property in trust for the community. Nagel v. Kiibler, 212 S.W.2d 1009 (Tex.Civ.App.-Galveston, 1948, writ ref’d n. r. e.) and authorities there cited.

It is stated in Addison v. Ball, 262 S.W. 877 (Tex.Civ.App.-Fort Worth, 1924, writ dism’d) that it is a well settled rule of law in Texas that a trust in lands can be shown by parol evidence and in determining that issue testimony as to the facts and declarations of all parties to the deed in the transaction which lead up to its execution and also the subsequent acts and declarations of the grantee named in the deed. See also Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775 (1960); Sanders v. Worthington, 382 S.W.2d 910 (Tex.1964).

The courts of this state have clearly made a distinction in the admissibility of parol evidence where the consideration expressed in writing is not a mere recital but is contractual in nature. Where a deed shows the consideration was paid from the grantee’s separate estate or was to be paid from grantee’s separate estate, parol evidence is not admissible in the absence of fraud, accident or mistake. In the case of Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825 (1900) in the deed to Mrs. Kahn from Mr. Kahn the granting clause recited a consideration of $500 paid by Mrs. Kahn out of her separate funds and for her separate use and benefit. There is clearly a difference in the Kahn case and the case here involved. It is stated in Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777 (1952) as follows:

“We agree with the holding of the Court of Civil Appeals that, as a matter of law, the title to the two lots, under the contract and deed, vested in Mrs. Frances M. Lindsay as her separate property and estate.
“The recitation contained in the contract and deed are to all intents and purposes the same as that in the deed construed in Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825, 826, 827. In that case this Court said ‘The decisions do clearly establish the proposition that the intent to make the property conveyed the separate property of the wife may be shown not only by words of conveyance to her sole and separate use, but by recitals of a consideration such as would, if moving from her, give such a character to it. There can, therefore, be no doubt that the deed before us upon its face unequivocally expresses the purpose of Kahn to convey to his wife in her separate right, and he cannot be permitted, consistently with correct principles, to show that he did not so intend. The evidence admitted does not come within the rule which sometimes permits the true consideration of an instrument to be shown to have been different from that recited. This principle, properly applied, admits the evidence where the consideration has been stated as a fact, but not where the recital is contractual in its nature.’ ” (Emphasis ours.)

It is stated in Muran v. Muran, 210 S.W.2d 617 (Tex.Civ.App.-Galveston, 1948, no writ) as follows:

“It is the established law in this State that ‘the wife’s separate ownership of property, although standing in the name of her husband or appearing on record to be community property, may be proven as any other fact by any competent evidence, including parol evidence, surrounding circumstances, and declarations of the parties.’ Foster v. Christensen, Tex.Com.App., 67 S.W.2d 246, 249; Connor v. Boyd, Tex.Civ.App., 176 S.W.2d 212.”

The Foster v. Christensen case was approved by the Supreme Court in Connor v. Boyd (writ ref’d) for want of merit. See also Von Hutchins v. Pope, 351 S.W.2d 642 (Tex.Civ.App.-Houston, 1961, writ ref’d n. r. e.); Orr v. C. U. Pope, 400 S.W.2d 614 (Tex.Civ.App.-Amarillo, 1966, no writ).

As we construe those holdings it was intended that the surrounding circumstances and declarations of the parties might be shown by parol evidence to show the true status of the property. As stated in Paudler v. Paudler, 210 F.2d 765 (5th Cir., 1954):

“The rule is well settled in Texas that a deed conveying property to the wife in her separate right and estate creates a prima facie presumption that same is her separate property, in the absence of evidence to overcome such presumption ; and the property so conveyed will be treated as the wife’s separate property.”

In other words, the general rule is that where property is purchased with either community funds or the separate funds of the husband and the husband knowingly permits the deed to be made to the wife with a recitation therein that conveyance is to the wife as her separate property (but not where consideration is shown as being paid from her separate property) such facts raise a prima facie presumption of a gift to the wife; but that presumption may be overcome by sufficient evidence. Watson v. Morgan, 91 S.W.2d 1133 (Tex.Civ.App.-Waco, 1936, writ dism’d) and the many authorities there cited.

In Henderson v. Jimmerson, 234 S.W.2d 710 (Tex.Civ.App.-Texarkana, 1950, writ ref’d n. r. e.) it is stated:

“The rule permitting parol testimony to be admitted to show that a deed absolute on its face is a mortgage, as held in the authorities cited above, has been extended to admit parol testimony to show that a deed absolute on its face was given in trust, with the qualification, howfever, that the consideration is executed and not contractual. Tieman v. Dyer, Tex.Civ.App., 114 S.W.2d 669; Robinson v. Faville, Tex.Civ.App., 213 S.W. 316; Kidd v. Young, 144 Tex. 322, 190 S.W.2d 65. In Jones v. Parker, supra [Tex.Civ.App., 193 S.W.2d 863, 864], this court said that ‘From almost the beginning of the statehood of Texas it has been held repeatedly that a trust in la.nd can be created by parol as well as in writing.’ ”

It is stated in Alexander v. Alexander, 373 S.W.2d 800 (Tex.Civ.App.-Corpus Christi, 1964, no writ) as follows:

“Although the deeds to appellant, and it is,the last deed of 1944 that he must depend on here, recite conveyance to him as separate property, such recitals are not conclusive of the true character of the transactions, and are subject to be overcome by evidence. 30 Tex.Jur.2d Husband and Wife, Sec. 182, and cases cited; Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900. Kearse v. Kearse, Com. of App., 276 S.W. 690; Morris v. Neie, 212 S.W.2d 981, Tex.Civ.App. wr. ref. n. r. e. The evidence detailed above was sufficient to create an issue on this matter in the trial court. The trial judge decided this issue by finding the realty to be •community property. We find no reason to set aside his decision.”

See also Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962) where it is stated:

“Special Issues 1, 3 and 4 adequately support petitioner’s theory of resulting trust. Where a transfer of property is made to one person and the purchase price is paid by another, and the transferee is a natural object of bounty of the person by whom the purchase price is paid, and the latter manifests an intention that the transferee should not have the beneficial interest in the property, a resulting trust arises. Restatement, Trusts, § 443 (1935).”

It was held in the case of Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900 (1955) presumption in favor of separate •estate of wife where the deed of acquisition recites that the land is conveyed to the wife as her separate property or that consideration is from her separate estate is •generally rebuttable.

Finding no error, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    RESERVE LIFE INSURANCE COMPANY, Appellant, v. John E. SHELTON, Jr., Appellee.
    No. 11473.
    Court of Civil Appeals of Texas. Austin.
    May 3, 1967.
    Rehearing Denied May 24, 1967.

      Joe Bailey Humphreys, Dallas, for appellant.
    Sneed & Vine, Forrest N. Troutman, Austin, Ifor appellee.
   O’QUINN, Justice.

This cause now on appeal originated in justice court when appellee sued appellant insurance company on an indemnity claim, resulting from a broken collarbone, in the sum of $30, the amount scheduled under the policy of insurance.

The lawsuit assumed larger proportions and greater significance when the insurance company answered by written pleadings in the nature of a plea to the jurisdiction and general denial.

The basis of the plea to the jurisdiction, both in justice court and in the county court at law, is that another claim under the same policy, and between the same parties, having been adjudicated in district court, the present case is barred under the doctrine of res judicata.

John E. Shelton, Jr., appellee, sued Reserve Life Insurance Company, appellant, in justice court, March 26, 1965, in the sum of $30 for medical expense incurred as result of fracturing his collarbone. Shelton also sued, under Article 3.62, Texas Insurance Code (Vernon’s Ann.Tex.Sts.), for penalty of 12 percent and for reasonable attorney’s fees.

Appellant insurance company’s answer and other matters in the record disclose that previously, in two suits filed in district court, Shelton had sued the same company, under the same policy of insurance, for (1) hospital expense and surgery for Shelton’s wife incurred in April and May, 1963, and for (2) subsequent hospital expense, medicines, and surgical supplies from November, 1963, to June 24, 1964, when her death occurred. The first case was tried in January, 1965, and resulted in judgment for Shelton. The second suit in district court was pending when the case at bar was appealed.

Appellant insurance company argues that all claims under the policy properly should have been litigated in the case tried in district court. Appellant contends that the judgment in that cause, having become final by satisfaction and release, is res judicata as to the remaining two claims, one in district court and the other on appeal to this Court.

The justice court overruled the plea to the jurisdiction and awarded judgment to the insured appellee, and appellant appealed. The county court at law held with the justice court, overruling the jurisdiction plea and awarding judgment of $30 for medical services, $3.60 penalty, and attorney’s fees of $100. Appellee thereafter filed remittitur of $34 under Rule 315, Texas Rules of Civil Procedure, reducing the amount claimed and upon which execution would issue to $98.60. Appellant perfected appeal to this Court.

Appellee by motion to dismiss the appeal attacks the jurisdiction of this Court, contending that the effect of the re-mittitur is to revise and reduce the judgment to $98.60, and thereby deprive the Court of jurisdiction to hear and determine the appeal in an amount below $100. Jurisdiction is determined by averments of the petition (in this case by the petition in the county court at law) as the allegations state facts relating to the thing in controversy. Booth v. Texas Employers’ Ins. Assn., 132 Tex. 237, 123 S.W.2d 322; Twin City Fire Ins. Co. v. Turnbow, Tex.Civ.App., Eastland, 135 S.W.2d 641 (no writ). Appellee sued in county court at law for $30, plus penalty and reasonable attorney’s fees. The judgment was for the total amount of $133.-60. In cases of this nature, attorney’s fees when recovered go to the insured and become a part of the recovery and a part of the amount for which suit was brought. John v. Universal Life & Acc. Ins. Co., (Tex.Comm.App., 1936), 94 S.W.2d 1145; National Life & Acc. Ins. Co. v. Moore, Tex.Civ.App., Austin, 104 S.W.2d 897 (no writ). Since attorney’s fees constitute a part of the amount in controversy, appellate jurisdiction in this case was conferred when the petition was filed and jurisdiction attached in county court at law. Wichita Valley Ry. Co. v. Leatherwood, Tex.Civ.App., Amarillo, 170 S.W. 262 (no writ). Subsequent remittitur as to part of the recovery will not defeat the jurisdiction conferred by averments of the petition upon which the cause was tried. Barnes v. Bryce, Tex.Civ.App., Fort Worth, 140 S.W. 240 (no writ).

We conclude that we have jurisdiction of the appeal and overrule appellee’s motion to dismiss.

Appellant assigns five points of error. The first four pertain to various aspects of the plea of res judicata and will be treated together. The fifth point urges that the judgment is not supported by any legal evidence.

We overrule all five assignments of error.

Under the doctrine of res judicata a cause or claim is barred if the matter has been decided. The rule was stated in 1885 by the Supreme Court of Texas, and has been consistently followed since that time, that:

“A matter is not generally regarded as res ad judicata unless there be a concurrence of the four conditions following, namely: 1st. Identity in the thing sued for; 2d. Identity of the cause of action; 3d. Identity of persons and of parties to the action; 4th. Identity of the quality in the persons for or against whom the claim is made.” Philipowski v. Spencer, 63 Tex. 604, 606-607.

It is undisputed that appellee made application for hospital and surgical expense policy of insurance August 25, 1959, and appellant insurance company issued the policy to appellee September 9, 1959. Appellee’s wife, who was named in the policy, was in Seton Hospital in Austin in April and May, 1963, and when proof of loss was made, appellant insurance company denied liability. Appellee brought suit April 6, 1964, in district court (Cause No. 136,657) and obtained judgment February 9, 1965, for $1,748.99, including award for hospital and medical services, statutory penalty, and attorney’s fees. The judgment was paid and satisfaction and release of the judgment was filed February 9, 1965, the date of the judgment.

Late in November, 1963, appellee’s wife re-entered the hospital and remained there until her death June 24, 1964. Again, when proof of loss was made, appellant insurance company denied liability, and appellee brought suit in district court (No. 143,761) for hospital services, surgical supplies and medicines, plus statutory penalty and attorney’s fees.

In February, 1964, appellee fell in his home and suffered a broken collarbone. He received medical care and presented proof of loss in the amount of $30 in compliance with the schedule fixed by the policy. Appellant insurance company denied liability, and ap-pellee brought the suit now before this Court March 26, 1965, in justice court.

When appellee filed the first suit, on April 6, 1964, neither of the two other claims had matured. The claim for the broken collarbone was presented to appellant by proof of loss dated March 26, 1964. General Provision No. 11 of the policy precludes the insured from bringing suit before the expiration of sixty days after written proof of loss has been furnished the insurance company. Appellee was prevented by terms of the policy from bringing suit until sometime after May 26, 1964, some seven weeks after the first suit had been filed. The third claim, for the terminal hospital period for appellee’s wife, did not mature until sixty days after proof of loss following her death June 24, 1964, which would have been several months after the first claim had matured and after suit had been filed.

Appellant contends that judgment in the first suit, that case being on the same policy of insurance covering the two subsequent claims is res judicata in the cause before this Court and, presumably, in the third case now pending in district court. The record shows that when the first case (No. 136,657) was on trial in January, 1965, and prior to judgment, appellant made no move seeking to bring all three claims into that cause. Appellant’s answer consisted of a general denial, under which appellant offered evidence, which was rej ected by the trial court, to prove fraud on the part of appellee in obtaining the policy of insurance. But nothing was done by appellant, by way of pleading, to bring all three claims into the cause on trial, although the other suits had been filed prior to trial of the first case.

In asserting that the judgment in the district court (No. 136,657) is res judicata of the present demand, appellant invokes a rule generally treated as a part of the doctrine of res judicata, but which primarily is based upon the rule that forbids splitting a single cause of action into separate suits. Craig v. Broocks, First District, 1910, 60 Tex.Civ.App. 83, 127 S.W. 572 (writ ref.); Sovereign Camp, W. O. W. v. Helm, Tex. Civ.App., El Paso, 94 S.W.2d 521 (writ ref.).

In Sovereign Camp, W. O. W. v. Helm, supra, the beneficiary of a life policy filed suit, after making demand and after refusal of payment by the insurer. For failure to pay within sixty days after demand, the insurer by statute was subject to payment of 12 percent penalty and attorney’s fees. The original petition did not plead penalty and attorney’s fees, and it is not clear whether suit was filed before or after expiration of the sixty-day period.

The beneficiary amended her petition before trial, and after expiration of the sixty-day period, but failed to include demand for penalty and attorney’s fees in the amended petition. Plaintiff obtained judgment for the amount of the policy with interest, and the judgment was paid.

When the beneficiary sued later in a separate action to recover penalty and attorney’s fees, the court pointed out that the right to these demands had accrued, and, being a part of the entire claim against the insurer, could have been included when the amended petition was filed. The appellate court held that the second suit was barred, since all claims had accrued when the suit was amended, and the demands could not be split into separate actions. 94 S.W.2d 521, 523, col. 1.

In filing the three lawsuits, ap-pellee sought all damages and everything that had matured under each claim at the time of filing. Appellee’s suits were for three separate and distinct claims of indemnity under the policy of insurance. Each claim required different proof and each cause of action arose at a different time and under different circumstances, and in one claim indemnity was claimed for a different beneficiary. Since appellee had three separate and distinct causes of action, maturing at different times and sued on separately as the claims accrued, there is no rule of practice requiring appellee to amend his pleadings to introduce into one lawsuit all causes of action, and judgment in the first cause will not constitute res judicata as to the subsequent suits. Ben C. Jones & Co. v. Gammel Statesman Pub. Co., 100 Tex. 320, 99 S.W. 701, 8 L.R.A.,N.S., 1197.

Appellant relies on Texas Employers’ Insurance Assn. v. Rampy, 392 S.W.2d 350 (Tex.1965) in contending that the results in this cause before the trial court are in direct conflict with the holding of the Supreme Court. In Texas Employer’s Insurance Assn. v. Rampy the claimant had three heat strokes within a period of about six weeks. The claim was litigated after all three strokes, but only two strokes were presented and passed on by the Industrial Accident Board and the district court, after which judgment was entered. Later the claimant brought a separate action on two strokes, naming different dates and places. The Supreme Court held that the claim arising out of the three heat strokes was res judicata as to the later claims for the same strokes.

We cannot agree that the facts of the cause before this Court are comparable. The several causes of action brought by ap-pellee are distinct and separate. When the first suit was brought, only the claim there sued on had matured. All three suits involve the same parties and the same contract, but the causes do not constitute suits for breach of an entire contract in the usual sense. Though the policy obviously constitutes the entire contract, the obligation under it is severable, and a prior claim does not of itself render subsequent claims barred under the doctrine of res judicata. See Driggers v. Business Men’s Assurance Company, U.S.Ct.App., Fifth Circuit, 219 F.2d 292, 297, col. 2, et seq.

Even though appellee’s three claims sued upon might be joined or consolidated, the rule against splitting of causes has no application, since the causes are separate and distinct. The object of the policy was to indemnify appellee as long as the policy was in force. Indemnification was continuing, and the contract is divisible. When appellant denied liability and refused to pay the amount due under the policy, each failure to comply gave rise to a separate cause of action, each claim being distinct from the other. Appellee was entitled to bring suit on each claim as it became due. Universal Life & Accident Ins. Co v. Shaw, 139 Tex. 434, 163 S.W.2d 376; Sovereign Camp, W. O. W. v. Cayton, Tex.Civ.App., Amarillo, 74 S.W.2d 158 (writ dsmd.); State Life Ins. Co. v. Wilson, Tex.Civ.App., Amarillo, 57 S.W.2d 355 (no writ); Rau v. American Nat. Ins. Co., Tex.Civ.App., Dallas, 154 S.W. 645 (no writ). The authorities cited are decisions under contracts providing for installment payments, but we think the underlying principle, that a separate action may be brought as each liability accrues, applies with equal force to separate claims for indemnity. The actions may be split, provided when each suit is filed, all claims due at that time, and not theretofore sued on, must be included. By the terms of the policy appellant contracted to indemnify appellee if he incurred certain hospital and medical expenses. Appellee had a right of action for each incident, or period in a hospital, upon proof of loss and expiration of sixty days. By bringing suit for the first claim, growing out of hospital expense and surgery in April and May of 1963 then past due, appellee was not estopped from instituting suits on the other claims when due, and reducing the first claim to judgment will not constitute res judicata in the remaining claims, which could not have been filed with the first because neither had matured at the time. Rau v. American National Insurance Co., supra.

Appellant’s fifth and last point of error is that the judgment was without legal evidence to support it. Appellant argues that no legal evidence was before the court establishing that appellee broke his collarbone, or that, if he did have a broken collarbone, appellee had incurred medical or hospital expense as a result. Appellant asserts that the policy does not promise to pay for a fractured collarbone, if it was broken, unless thére was expense as a result.

This case was tried before the court without aid of a jury. Appellee testified that he broke his collarbone February 16, 1964, and that the same day Dr. Kermit W. Fox, a bone specialist, examined appellee at Seton Hospital, caused x-rays to be made, and applied “a figure 8” in treatment. Appellee also testified that he later presented his claim for $30 to appellant, together with a signed statement of the attending physician, in proof of loss, which was not paid. Findings of fact filed by the trial court in response to request of appellant expressly show that there was proof of the accidental injury/that medical attention was obtained, and that proof of loss in the amount of $30 was made to appellant after which appellant denied liability and refused payment. Appellant’s contention of no legal evidence is without support in the record, and is overruled.

The judgment of the county court at law is affirmed.

Affirmed.


author: SELLERS, Justice.

text:
    HUMBLE OIL & REFINING COMPANY, Appellant, v. John David WHITTEN, Appellee.
    No. 278.
    Court of Civil Appeals of Texas. Tyler.
    April 27, 1967.
    Rehearing Denied May 25, 1967.

      Thompson, Knight, Simmons & Bullion, John A. Gilliam, Dallas, for appellant.
    Smith, Johnson & McDowell, Howard Smith, Sulphur Springs, Woodrow Edwards, Mt. Vernon, Ivan Alexander, Jr., Emory, for appellee.
   SELLERS, Justice.

Appellee John D. Whitten filed this suit against appellant Humble Oil & Refining Company to recover for personal injuries received by him while working for Delta Drilling Company. Appellee recovered compensation insurance as an employee of Delta Drilling Company, his employer, and brought this suit against appellant for appellant’s negligence in connection with his injuries. In this suit, Delta Drilling Company’s insurance carrier sought subrogation for the amount it had paid appellee.

The trial was to a jury and resulted in a judgment for appellee in the sum of $60,-000.00. From this judgment, the appellant has duly prosecuted this appeal. While appellant has some thirty assignments of error, it makes this statement on page 2 of its Brief:

“This appeal presents essentially two questions for this Court’s consideration, to-wit:
“(1) Does the conduct of appellant in furnishing a tank to Appel-lee’s employer without a ladder or gauge constitute actionable negligence ?
“(2) Could such conduct, if negligence, be a proximate cause of Appellee’s fall from the ladder ?
“It is Appellant’s position that the evidence failed to raise any issues of fact as to negligence or proximate cause in this case, and that the trial court thus erred in submitting such issues to the jury, and entering a judgment for Appellee based upon the affirmative answers thereto.”

Humble Oil & Refining Company and Delta Drilling Company entered into a contract dated January 12, 1962, in which it was agreed that Delta Drilling Company, as independent contractor, would drill an oil well for Humble Oil & Refining Company, known as its Grimes No. 1 in Rains County, Texas. The contract was a rotary drilling contract in which Delta agreed to drill the well and Humble agreed “to furnish all mud conditioners necessary for drilling and completing the well. Humble will arrange to purchase all necessary mud conditioning materials.”

Humble’s Field Superintendent, W. T. McGarrahan, had 37 years’ experience with his employer and was supervising the drilling of the Grimes No. 1. As a part of his duties, he picked out and had delivered to the well site a portable steel tank approximately fifteen feet high owned by Humble to be used for the storage of the mud additive which was to be purchased and furnished by Humble. He inspected the tank before ordering it delivered. He noticed that it did not have the steel ladder attached to it although the tank did have brackets welded to it for this purpose. He also noticed that the tank was not equipped with a gauge by which the fluid level of the storage tank could be determined from ground level although this type gauge could be purchased at a low cost from any oil well supply company. Mr. McGarrahan also testified that he knew the tank was to be used in storing the mud additive; that the fluid level in the tank would have to be determined occasionally and that the only way to determine the fluid level was to climb on the top of the tank and look downward through a hole. There was no evidence to the contrary. When checking the drilling of the well after the tank had been delivered, he noticed the wooden ladder in question leaning against the tank.

Appellee Whitten was a “roughneck,” a member of one of three daily crews which Delta employed in carrying out its drilling contract. A “roughneck” has been defined as a laborer who, under the supervision and direction of a superior known as a driller, engages in “rigging up,” or installing and operating drilling rigs in the search and exploration for oil and gas. This roughneck was injured on the job in attempting to carry out his driller’s instructions to assist the driver of a tanker truck owned by Robertson Tank Line, Inc., another independent contractor of appellant, in unloading diesel oil additive which was being delivered from Humble’s Baytown Refinery to the well site. The diesel oil was being unloaded into the storage tank furnished by Humble when Whitten was requested by the driller to check the level of fluid in the tank as it was being filled. The only method available to the appellee to do this was to climb to the top of the tank using the wooden ladder. It was about three o’clock A.M. and dark. Before mounting the wooden ladder for the first time, appellee checked the ladder with his flashlight, then secured the ladder at the bottom by placing it between a crack between two planks in the wooden flooring. When he shined his flashlight upward, he noticed a small rope at the top of the ladder which appeared to secure the ladder at the top, but, in fact, the line was not attached to the tank. Appellee climbed the ladder but when he attempted to step from the top of the ladder onto the top of the storage tank, the ladder slipped and he fell some fifteen feet to the plank flooring occasioning severe injuries to himself. No issue as to damages is made on this appeal.

A Delta employee, Turner, testified that ordinarily storage tanks like the one here usually come equipped with a steel ladder or gauge, and he requested of his superior that a steel ladder be furnished so that it could be attached to this tank. None was furnished. Since there had to be some means of climbing to the top of the tank to observe the fluid level, Turner built a wooden ladder for that purpose. He had attached what he calls a “soft line” to the top of the ladder but left the line loose on top of the tank because there was no secure place to tie it to the tank.

In response- to Special Issues Nos. 1 through 6 concerning primary liability on the part of appellant, the jury found Humble’s failure to equip the tank with a steel ladder rendered it unsafe for plaintiff Whit-ten for use in his employment; this failure was negligence and a proximate cause of plaintiff’s injuries; Humble’s failure to equip the tank with a gauge in order that its fluid level could be determined from the ground rendered the tank unsafe for use in plaintiff’s employment; and that this failure was negligence and a proximate cause of plaintiff’s injuries. The jury further found that plaintiff did not have full knowledge of the ladder equipment on the tank; he did not appreciate the danger of climbing the ladder in question; and he did not voluntarily expose himself to such known and appreciated danger in climbing the ladder. The jury also found the accident was not unavoidable and acquitted plaintiff of any contributory negligence in other special issues.

Humble first contends that the judgment should be reversed and rendered because the contract between it and Delta did not expressly recite that Humble would supply a tank to store the mud additive which it would purchase and supply to the well site. It is true that the contract does not expressly require Humble to furnish a storage tank but we believe the duty is there by necessary implication. There is no evidence to the effect that Humble could keep a supply of mud additive at the drill site other than by storing it there in a tank. In any event, Mr. McGarrahan recognized it was Humble’s duty to supply a storage tank for this purpose and he did arrange for delivery of a Humble tank to the well site, knowing that it was to be used for storage of the rnud additive to be furnished by Humble. The practical construction given the contract by the parties is the best evidence of the intention of the parties at the time the contract was made. American Manufacturing Company of Texas v. Witter, Tex.Civ.App., 343 S.W.2d 943 (writ ref., n. r. e.); Anchor Casualty Co. v. Robertson Transport Co., Tex.Civ.App., 389 S.W.2d 135 (writ ref., n. r. e.); Danaho Refining Co. v. Dietz, Tex.Civ.App., 398 S.W.2d 307 (writ ref., n. r. e.). This point is overruled.

Appellant next contends the judgment should be reversed and rendered because it had no duty to furnish to Delta and its employees a storage tank which had a steel ladder affixed, or a gauge by which the fluid level in the tank could be ascertained from the ground level. . The fact situation here reveals either or both a bailment for hire or a bailment for the mutual benefit of the parties. The same rule is applicable in both situations. Roosth & Genecov Production Co. v. White, 152 Tex.619, 262 S.W.2d 99; Ellis v. Moore, Tex., 401 S.W.2d 789. Since Humble recognized its obligation to furnish a tank for the storage of the mud additive to be used in drilling the Grimes No. 1, it can only be concluded that Humble was supplying the storage tank to the well site for its own business purposes, although this chattel also served Delta’s business purposes. The undisputed fact that Humble did furnish the tank for its own business purpose carries with it the legal obligation to use ordinary care in making the chattel safe and forestall personal injury to the servants of an independent contractor who is using the chattel in accordance with the purposes for which it was supplied. Roosth & Genecov Production Co. v. White, supra.

The jury’s findings of primary negligence on the part of Humble because of its failure to equip the storage tank with a steel ladder or gauge are supported by sufficient probative evidence. Likewise, the jury’s findings that the accident was not unavoidable and that plaintiff was not con-tributorily negligent are amply supported by the evidence.

Appellant further contends as a matter of law that appellee is barred from recovery because appellee assumed the risk of any danger arising from his use of the storage tank, and that the lack of an attached steel ladder or gauge on the tank was as open and obvious to appellee Whitten as it was to Humble when the tank was delivered. At the trial, Humble also asserted an affirmative defense that at the time of the accident, the condition of the tank was “open and obvious” to appellee. The jury’s findings to the contrary are supported by the evidence.

It appears from the instant facts that the condition of the tank had been changed from the time it was delivered to the well site to the time appellee Whitten first used it on the occasion of his accident. Appellee had no occasion, prior to his initial climbing of the ladder, to have noticed in particular the condition of the tank and dangers presented by it when it was delivered. He had no previous experience with the condition of the tank as had appellant and cannot be charged with equal knowledge of the condition of the tank when first delivered. Appellee can only be charged with assuming the risk of the condition of the tank at the time he first climbed it on the night of the accident. Assumed risks, or the doctrine of volenti, at the time of the delivery of the tank is not applicable to appellee Whitten. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60.

We must agree, because of recent Supreme Court authority, that the “assumed risk” doctrine is a relatively harsh one and the rules allowing its applicability are not to be relaxed. Since appellant has not adduced evidence reflecting that appellee should be charged with knowledge, as a matter of law, of known and appreciated danger, and has secured no jury findings to this effect, then we must hold that plaintiff was not barred from recovery by the “assumed risks” doctrine. Ellis v. Moore, supra; Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368.

It would appear to this Court that the rule and the recommendation of decisive authorities is that cases analagous to the instant case should be determined on the basis of negligence and contributory negligence. Robert E. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Halepeska v. Callihan Interests, Inc., supra; Ellis v. Moore, supra. We quote briefly from the last cited authority:

“ * * * Generally speaking, cases should be determined on the basis of negligence and contributory negligence. Our disposition is not to extend the doctrine of assumed risk so as to excuse negligent conduct on the part of the defendant. As above indicated, it is a harsh doctrine, and we are not disposed to relax the rules set down for the escape from liability under it. * * *”

The trial court correctly followed this recommended procedure. Appellant’s points concerning assumed risks are overruled.

Appellant further contends as a matter of law that even though it might be held negligent in supplying the storage tank without a steel ladder or gauge, such negligence cannot be held a proximate cause of appellee’s accident because its supplying of a defective chattel was a remote cause of his accident. Appellant adduced evidence that a Delta employee changed the condition of the tank by building the wooden ladder supplied for use in climbing to the top of the tank, making it appear to appellee that the top of the ladder was secured to the top of the tank by rope. Appellant contends this negligence was the immediate cause of plaintiff’s accident. However, Humble’s negligence continued to the time of plaintiff’s injury since Mr. McGarrahan testified that on later checking the drilling progress, he noticed a wooden ladder leaning against the tank which obviously was the only means to be used in climbing to the top of it. Appellant makes the further contention that it cannot be held responsible for later negligent acts on the part of Delta or its employees after the tank had been delivered to the well site. We overrule these points. All relevant evidence uniformly points up that appellant knew the top of the tank must be attained before the fluid level could be known. Appellant did not supply a safe means to get on top of the tank and certainly it could reasonably foresee that Delta’s employees had to use some method to do this. It is not required that appellant should be able to reasonably anticipate the exact manner in which appellee was injured. It is enough for appellee to adduce probative evidence to the effect that an accident such as occurred was likely to happen as a direct result of appellant’s original negligence. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359; Port Terminal Railroad Association v. Ross, 155 Tex. 447, 289 S.W.2d 220; Motsenbocker v. Wyatt, Tex., 369 S.W.2d 319.

The fact that Delta was guilty of negligence in failing to provide appellee Whitten a safe place to work and in providing the wooden ladder as well as the untied rope (which appeared to be tied) for plaintiff’s use on the occasion of his serious accident is of no moment in considering appellant’s liability. The appellee may still recover even though appellant’s prior negligence combined and concurred with Delta’s in proximately causing his injuries. Biggers v. Continental Bus System, supra; City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680; Texas Power & Light Co. v. Holder, Tex.Civ.App., 385 S.W.2d 873 (writ ref. n. r. e.) and 393 S.W.2d 821.

We are of the opinion that this case comes-squarely within the rule laid down in Ellis v. Moore, supra. There, the injured party was supplied with a tractor with a handle broken off one of its power lifts — nothing inherently dangerous about the tractor as such — but when placed in use for the purpose of killing Johnson Grass by Ellis, who tried to use the other power lift without knowledge that in doing so the tractor would turn over on him and cause his injury.

In the case before the Court, appellant Humble Oil & Refining Company supplied a tank for the purpose of storing the mud for usé in the drilling of its oil well. Although the tank was built with brackets on it to which a steel ladder could be attached,, no ladder was attached — nothing inherently dangerous in the tank as such — but when appellant undertook to fill this tank with mud for use in drilling its well, Humble knew that someone had to get on top of this tank some way in order to gauge the flow of mud into the tank. That is when Delta’s employee (not the appellee), in order to accomplish this purpose, asked for a steel ladder but none was furnished. He-built the wooden ladder and tied the rope to the top of the ladder but was unable to-tie the rope to the tank. Appellee, when he for the first time, at three o’clock in the morning, thinking the rope was tied to the tank at the top, climbed the ladder and when he reached the top of the tank and went to get off on to the same, the ladder slipped from under him and he fell to the floor receiving the injuries for which he sued. Had the steel ladder been attached to the tank after it was. delivered to the well site, no-injury would likely have occurred. We can see no legal distinction in the two cases.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Vera HARRELSON, Appellant, v. Mattie Jean Harrelson DAVIS, Appellee.
    No. 16827.
    Court of Civil Appeals of Texas. Fort Worth.
    May 5, 1967.
    Paul O. Wylie, Archer City, for appellant.
    W. W. Ballard, Wichita Falls, for appellee.
   OPINION

RENFRO, Justice.

Child Custody Case.

Mattie Jean (Harrelson) Davis and R. J. Harrelson were divorced January 16, 1961. Custody of Tammy, a girl two years of age, and Dean, a boy four months of age, was awarded to Harrelson with Mattie having the right and privilege to visit the children and have them visit with her at all reasonable times.

Both parties remarried. Mattie married Jessie Lee Davis, Jr., on January 18, 1961, and has two children by him. Harrelson married Vera on August 17, 1963.

R. J. Harrelson died on August 1, 1966, and left surviving two children by Vera.

Mattie Jean (Harrelson) Davis filed suit for modification of the judgment concerning custody of the two above named children, on August 4, 1966.

Following a full hearing, a jury found that plaintiff, Mattie Davis, was not a fit and proper person to have custody of the children; that defendant, Vera Harrelson, was a fit and proper person to have custody; that it would be for the best interest of the children to remain with Vera and would not be for the best interest of the children for Mattie Davis to have their custody.

Plaintiff filed a motion for judgment non obstante veredicto. The court “having heard and considered the said Motion, the evidence and argument of counsel, and being of the opinion that the evidence raised no issue of fact, that a directed verdict for Plaintiff would have been proper” granted the motion for judgment non obstante veredicto and entered judgment whereby the custody of the two children was awarded to the plaintiff, Mrs. Davis.

In her only point of error defendant contends the court erred in granting plaintiff’s motion for judgment non obstante veredicto.

Plaintiff was sixteen years of age when she married Harrelson. They were separated in September, 1960. The divorce was granted in January, 1961. At the time of separation they lived in Archer City.

Plaintiff testified she did not contest custody of the children at the time of the divorce because she had no money, no way to take care of the children, and Harrelson told her he would go to jail rather than pay child support. Soon after the divorce she married her present husband Davis, and has two children by him; she visited the children in question frequently until her husband re-enlisted in the military service. When he was transferred from place to place she went with him; at various times they have lived in Germany, Washington and California; now they live in Wichita Falls; all along she has bought things for the children; she loves the children, is interested in their welfare and feels she can take better care of them than can defendant; she and her husband live in a house with ample accommodations for the children; she brought this suit three days after her former husband’s death.

Plaintiff’s husband, Jessie Lee Davis, Jr., testified: he has been in military service twelve years and plans to remain in service for eight years longer; his pay is in excess of $630 per month; he married plaintiff before he re-enlisted; at that time he was making only $145 per month and was financially unable to help his wife regain custody and support of the two children; he was on duty in Vietnam when the present proceedings .were begun and flew home at his own expense to help his wife obtain custody of her children; he loves his wife’s children; he wants them in his home and would like to adopt them; he loves his wife and they have had no marital troubles at all.

Several witnesses testified that plaintiff was a good mother, a good housekeeper, attended church regularly with her children, and that her reputation was good.

Defendant, Vera Harrelson, testified: since her husband’s death she has had no income; she expects to receive social security and veteran’s benefits, maybe as much as $250 per month; she does not intend to work; she loves the Harrelson children and wants them very much and wants them because she loves them and has been a mother to them for three years; she thinks plaintiff not a proper person because “she never has been a mother” to the children; plaintiff has sent the children some things, “but not much.”

Mrs. Gladys Harrelson, mother of R. J. Harrelson, testified: she kept the children after plaintiff and R. J. separated until R. J. married Vera; plaintiff did not visit the children “as much as she should”; on the day of R. J. Harrelson’s funeral plaintiff offered to let witness adopt the children (denied by plaintiff); Vera is a good mother.

Other witnesses testified as to the good reputation of Vera; she attended church with the children regularly; she was a good housekeeper and a good mother.

The divorce judgment of 1961 did not decree that plaintiff was an unfit person to have custody of the children, but found that the best interest of the children would be served by giving custody to the father.

Prior to the institution of this suit by plaintiff, defendant never had legal custody of the children and had not adopted them.

In Cox v. Young, 405 S.W.2d 430 (Tex.Civ.App., 1966, ref., n. r. e.), the Eastland Court of Civil Appeals held: “The material time concerning fitness for child custody is the present. If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling. 44 Tex.Jur.2d page 48. Past misconduct or neglect, such as the failure of a divorced father to make child support payments, are factors to be considered when he seeks custody after the death of the mother, but such facts are not of themselves sufficient to show present unfitness,” citing Clements v. Schaeffer, Tex.Civ.App., 360 S.W.2d 906, and Pettit v. Engelking, Tex.Civ.App., 260 S.W.2d 613.

Viewed in the light most favorable to the verdict the evidence was wholly insufficient to support the finding that plaintiff was not a fit person to have custody of her children. The court did not err in holding that such finding had no support in the evidence.

The question of the best interest of the children next presents itself.

No doubt the defendant stepmother has been a good mother to the children. She is faced, however, with the problem (if she retains custody) of rearing and educating four fatherless children. She does not have employment and has no intention of seeking employment. She has no money. She, at time of trial, had no prospect of income except what she might receive from social security and veteran’s benefits.

On the other hand the record reflects plaintiff’s love for her children, she has a congenial home and a husband with a good income. He, too, loves the children and wants them.

In Bradford v. Lincoln Bank & Trust Co., 96 S.W.2d 821 (Tex.Civ.App., 1936, dism.), it was held that after the death of the mother who had been awarded custody of the child at the time of divorce, the father was the natural guardian of the child’s person and entitled to its custody until otherwise decreed by a court of competent jurisdiction. To the same effect is Thrash v. Cochran, 360 S.W.2d 587 (Tex.Civ.App., 1962, no writ hist.).

In Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953), wherein the mother, in whom custody had been placed, died, a contest arose between the father and others over custody of the child. Chief Justice Calvert, speaking for the Court, said: “It is true that the legal custody of the child vested automatically in Norris (the father) when the child’s mother died, and it is undoubtedly true also that from that moment he was legally entitled to the physical possession of the child.”

The Supreme Court in Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946), held: “Immediately upon the mother’s death the right of petitioner, the child’s father and natural guardian, to the custody of his child was revived. This is true notwithstanding the decree of divorce which had awarded the child’s custody to the mother.”

It has been held that the fact that the evidence might show that the best interest of the child will be served by taking the child away from the custody of the natural parent and giving it into the custody of an outsider, does not overcome the presumption of the law to the effect that the best interest and welfare of the child will be accomplished by leaving it in the care and custody of its natural parent or parents so long as its natural parent or parents are fit persons to have such custody, and such child is not a dependent or neglected child. See Prock v. Morgan, 291 S.W.2d 489 (Tex.Civ.App., 1956, no writ hist.), and authorities cited.

It has been repeatedly held that a child of tender years should be with the mother if she is a fit person therefor. Kollenborn v. Kollenborn, 273 S.W.2d 660 (Tex.Civ.App., 1954, dism.).

The Supreme Court in Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955), held: “The paramount right of a natural parent to a child comes from a legal presumption that to be raised by its natural parents is to the child’s best interest.” This presumption is, of course, rebuttable.

Ordinarily, the law presumes that the best interest of the child will be served by allowing it to remain in the custody of the parent rather than some other person. Legate v. Legate, 87 Tex. 248, 28 S.W.2d 281 (1894); Dunn v. Jackson, 231 S.W. 351 (Tex.Com.App., 1921); Davis v. Sears, 35 S.W.2d 99 (Tex.Com.App., 1931); Jones v. Gay, 258 S.W.2d 403 (Tex.Civ.App., 1953, no writ hist.); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup., 1963); Cox v. Young, Tex.Civ.App., 405 S.W.2d 430; Porter v. Porter, 371 S.W.2d 607 (Tex.Civ.App., 1963, ref., n. r. e.).

Under the provisions of Chapter 5, § 109, V.A.T.S., Probate Code, if one parent is dead, the survivor is the natural guardian of the person of the minor children.

Under the law and the facts of this case, the father being dead, the plaintiff, being the surviving parent, had the prima facie right to the custody of the children. The burden of establishing by a preponderance of the evidence rested on defendant, a non-parent who never had been vested with legal custody of the children, to show that this prima- facie right had been overturned.

A study of the entire record convinces us that the evidence did not support a finding that the best interest of the children would be served by leaving their custody in defendant.

That being true, the court had the right to enter judgment for plaintiff non obstante veredicto, Welch v. Welch, 369 S.W.2d 434 (Tex.Civ.App., 1963, no writ hist.), and he did not abuse his discretion by so doing.

Affirmed.


author: STORCKMAN, Chief Justice.

text:
    STATE of Missouri, Respondent, v. James William STIDHAM, Appellant.
    No. 52406.
    Supreme Court of Missouri, En Banc.
    June 5, 1967.
    Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    James William Stidham, pro se.
   STORCKMAN, Chief Justice.

The appellant James William Stidham is a prisoner in the Missouri State Penitentiary where he is serving a sentence of life imprisonment for murder. The judgment of conviction was affirmed by this court on September 9, 1957. State v. Stidham, Mo., 305 S.W.2d 7. On March 9, 1964, Stidham, pursuant to S.Ct. Rule 27.26, V.A. M.R. filed pro se in the Circuit Court of Butler County a motion to vacate and set aside his sentence. The motion to vacate was denied without an evidentiary hearing and on appeal this court on June 13, 1966, affirmed the order and judgment. State v. Stidham, Mo., 403 S.W.2d 616. Thereafter, Stidham filed pro se a second motion to vacate under Rule 27.26 which presented claims not made in his first motion. The trial court without an evidentiary hearing also denied the second motion to vacate and the prisoner’s appeal from that order and judgment is now before us. The movant filed a brief pro se in this court and made an oral argument.

On January 9, 1967, this court adopted a revised S.Ct. Rule 27.26. The effective date of the revised rule is September 1, 1967, but the trial courts may use the new procedure before that date. State v. Garner, Mo., 412 S.W.2d 155, 157.

The amended rule was adopted after considerable study and is intended to provide a post-conviction procedure in accord with the principles enunciated in the so-called trilogy of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Further in keeping with the teachings of the trilogy, the amended rule is designed to discover and adjudicate all claims for relief in one application and avoid successive motions by requiring motions to be in questionnaire form and by providing for the appointment of counsel if the motion presents questions of law or issues of fact and the movant is shown to be indigent.

These and other provisions intended to furnish more adequate post-conviction relief were not provided by Rule 27.26 in effect at the time the present motion was filed or when the appeal was argued and submitted in this court. It is apparent, however, that regardless of whether this court affirms the order and judgment, or reverses and remands the cause, the movant will be immediately entitled to proceed under the provisions of amended Rule 27.26, and compliance with the amended rule would be obligatory after September 1 this year. In these circumstances, it would be improvident to process the appeal further and undertake to prepare an opinion on the merits. The maximum relief to which the appellant is entitled in this court is a reversal of the order and judgment of the trial court and a remand for further proceedings under amended Rule 27.26. Bosler v. Swenson, 8 Cir., 363 F.2d 154; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33. Furthermore, it appears that appellant’s motion raises one or more issues of fact on which appellant would be entitled to an evidentiary hearing.

Accordingly, the order and judgment is reversed and the cause is remanded with directions that all further proceedings be in compliance with the provisions of amended Rule 27.26. If appellant elects to proceed with his motion in the trial court, counsel must be appointed under sub-paragraph (h) of the amended rule since appellant has been shown to be an indigent person. Counsel should file an amended motion which includes every ground known to the prisoner for vacating, setting aside or correcting his conviction and sentence, and the prisoner shall verify the correctness of the motion, including the fact that he has recited all claims known to him, all as required by subparagraph (c) of the amended rule. The trial court then is required to conduct a full evidentiary hearing on the amended motion as required by subparagraph (e) of the amended rule, assuming that the motion raises questions of fact as does the present motion, after which the court then is to decide all issues of fact and questions of law, making findings of fact and conclusions of law as required by subparagraph (i) of amended S.Ct. Rule 27.26.

All of the Judges concur.


author: HOGAN, Judge. PER CURIAM:

text:
    Hazel THOMPSON, Plaintiff-Respondent, v. Alberta GRAY, Defendant-Appellant, and Harvey Huse, Defendant.
    No. 8550.
    Springfield Court of Appeals. Missouri.
    March 15, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 9, 1967.

      Harold D. Jones, Bock & Jones, New Madrid, for defendant-appellant.
    David E. Blanton, Blanton, Blanton & Rice, Sikeston, for plaintiff-respondent.
   HOGAN, Judge.

The plaintiff, Hazel Thompson, was a passenger in an automobile driven by her sister, defendant Alberta Gray, when Mrs. Gray collided with a vehicle driven by defendant Harvey Huse. To recover damages for her resulting personal injuries,. Mrs. Thompson instituted this action against both defendants. A jury has returned a verdict in favor of the plaintiff and against both defendants, and has assessed plaintiff’s damages at the sum of $3,750.00. Only defendant Gray has appealed. The nature and extent of plaintiff’s injuries are not in issue.

The casualty here involved occurred on January 31, 1965, on U. S. Highway 61, about 3.5 miles north of Sikeston in Scott County, Missouri. At the place of the accident, Highway 61 is a two-lane north and south highway 18 feet wide. The road is-flat and level, though it curves slightly to-the east as one travels south. On the west side of the highway, and north of the point of collision, there is a shoulder or, berm nine feet wide. Just south of the point of collision, a gravel road intersects Highway 61 from the west, and northwest of this intersection there is a blacktop and gravel driveway and parking area which apparently serves two businesses, a tavern on the south and a restaurant and service station to the north of that. Neither the photograph presented here nor the oral evidence is definite enough for us to describe this driveway precisely; it appears to be a rectangular parking area and approach located adjacent to the highway on the west, just north of the intersecting gravel road. The accident happened about 4:30 P.M., and the pavement was dry and the visibility was good at that time.

The casualty occurred when defendant Huse, traveling north, turned left into the driveway across the southbound lane in which Mrs. Gray was driving. As we understand plaintiff’s theory of recovery from the pleadings, evidence and her arguments here, it was that Mrs. Gray was negligent in turning her automobile to the right and into collision with the Huse car, when in the exercise of the highest degree of care and in the time and space available she could have avoided the accident by continuing to drive south in the west lane, and that this negligence combined and concurred with that of defendant Huse to cause the collision and produce the plaintiff’s injuries. Plaintiff adduced evidence from three witnesses:

First was defendant Huse, 39 years old, who said he was in the “hearing aid business.” Mr. Huse, just before the collision, was driving north on Highway 61, going “approximately 45 miles-an-hour, 45 to 50.” Mr. Huse was on his way to the service station and cafe “there at Grant City,” which is on the “left side going north.” The highway there is slightly upgrade, but level enough that “you can see.” There is an intersecting gravel road there which comes in from the west, and the restaurant and filling station is north of the road. As Mr. Huse approached the intersection and his intended destination, there was “an Oldsmobile” (Mrs. Gray) approaching from the north in the west lane, a vehicle behind him to the south “half-a-mile or a mile,” and a trailer truck in front of him, “somewhere between four and six car lengths” to the north in the east lane.

“Between half-a-quarter and a quarter-of-a-mile back” (south) of the point where he began to turn, Mr. Huse pulled the lever on his electric turn indicator, and it then “flashed on the dash.” As Mr. Huse started to turn, the Gray car was between three and four hundred feet to the north, in the west lane. His speed was “cut in approximately half, maybe a little more.” Asked to describe what Mrs. Gray did as he was making his turn, Mr. Huse said that at first she “didn’t do anything until she got up close,” and then “came off around the island there after me.” The two cars then came into collision “approximately ten feet off in the driveway off of the highway.” After the impact, the Gray car was in the driveway. Prior to collision, Mr. Huse had been headed northwest, and after the collision, he was headed southeast. “From the front door to the rear wheel” on the right side of Mr. Huse’s car was damaged. Mr. Huse “[didn’t] think” there were any cars in the southbound (west) lane south of the place of the accident when the collision occurred.

On cross-examination by defendant Gray’s counsel, Mr. Huse reiterated a number of things to which he had testified on direct examination, and in addition estimated Mrs. Gray’s speed at “between 50 and 70 * ⅜ * within the speed limit.” Mr. Huse said he began his turn while he was still “about two car lengths” south of the intersecting road; that the truck ahead (north) of him was “between four and six car lengths” away; that at the time of impact, his vehicle was “on west of the shoulder”; that he meant west of the shoulder itself; and that at the time of impact the rear end of Mrs. Gray’s car “might have been right at” the edge of the paved part of the highway, but “I don’t know.” Mr. Huse said he saw “glass and dirt and debris,” and that it was “right at eight and nine feet” west of the west shoulder. This defendant also testified that when he crossed the center line he did so in a “northwesterly” direction and continued making his turn at that angle.

Mr. Huse was then interrogated by his own counsel, and testified, among other things, that the highway had shoulders on either side; that there was a little island (referring to an exhibit not before us) in front of the filling station; that there was a driveway on either side of the island; that the distance between entrances to the driveways was “over 300 feet, over a hundred yards”; and that when he began his turn Mrs. Gray was “just to the north of it [the north driveway]” when he made his turn.

The second witness called by plaintiff was Mrs. Lula Doolin, operator of the station and restaurant. Mrs. Doolin’s attention had been attracted by the “lick of the wreck,” though she did not see the cars collide. When Mrs. Doolin looked from inside the restaurant, she saw two ladies who had been thrown out of the car on the pavement, and Mr. Huse’s car was “off, off the pavement.” Mrs. Doolin saw glass and debris west of the pavement, “I judge ten or twelve feet.” “As far as I could see,” Mrs. Doolin said, the Gray vehicle, after impact, was “mostly off this way” (meaning west) when she saw it.

Plaintiff also testified. Some of her testimony deals with the injuries she sus-, tained, and we shall not narrate that part of her evidence. As material here, Mrs. Thompson testified that on the occasion in question she was riding with her sister and her niece, a Mrs. Janet Sims. Mrs. Thompson does not drive. As she approached the place of the accident, plaintiff noticed no traffic ahead, going south. Plaintiff noticed Mr. Huse before he began his turn, but didn’t know “how far back.” Plaintiff was asked what Mrs. Gray did when Mr. Huse started his turn, and she answered, “Well, when he pulled across in front of her, she later applied her brakes and pulled to the right.” According to Mrs. Thompson, the collision occurred “a little west” of the paved part of the highway. Asked to estimate the speed of the Gray vehicle prior to collision, plaintiff stated, “I would say 60 miles-an-hour.”

On cross-examination by defendant Gray’s counsel, Mrs. Thompson testified that the accident occurred about 4:30 P.M. She was asked several questions about the point of collision, which she answered by saying “I am not sure,” or equivalent words, and was asked if it “wasn’t a fact” that defendant Gray’s car was “less than five car lengths away” when Mr. Huse began his turn. Plaintiff responded in this fashion: “I said five car distances; I said I didn’t know.” Mrs. Thompson then answered affirmatively when she was asked if her testimony as to speeds and distances represented “estimates,” or “best judgment”; she was again interrogated about the position of the Gray car when the collision occurred, and answered, “All I remembered that she applied her brakes and pulled to the right.”

On cross-examination by counsel for defendant Huse, the plaintiff testified that she noticed the Huse automobile before it started “across the line,” inasmuch as she saw his “signal lights on,” and at that time he was south of the tavern. All plaintiff could say in locating the Gray automobile at the time Mr. Huse started to turn was to say “we was along there in front of the station,” but Mrs. Thompson here described the locus of impact relative to the pavement by saying, “I wouldn’t say he was off the highway when she pulled to the right, but he was off the highway when we hit.” Aside from medical testimony, which we have not narrated, this was substantially plaintiff’s case.

Defendant Gray presented her case through the testimony of four witnesses. First, she called a member of the State Highway Patrol, Trooper Dennis Lewis, who had investigated the accident. Trooper Lewis testified that when he arrived he found a 1961 Oldsmobile in the service station drive pointing southeasterly, and a 1956 Oldsmobile partly on the shoulder and partly in the west lane of the highway, heading south. He found tire marks in the west lane, and dirt and glass on the shoulder of the road and in the service station drive. The debris covered an area about 40 feet wide, beginning at a point about three feet west of the west edge of the pavement. Trooper Lewis measured the shoulder on the west and the west or southbound lane of Highway 61, and each was nine feet wide. On a rather small picture, Trooper Lewis marked the location of the debris, but he was not permitted to give his opinion as to the point of impact. This exhibit, i. e., the photograph as marked, indicates the debris was located at the west edge of the shoulder and in the parking area we have mentioned. Trooper Lewis also testified that he found 40 feet of skid-marks which ran southwest, partially on the pavement and partially on the shoulder, and that the skidmarks ended about ■“three car lengths approximately” from the debris. On cross-examination by counsel for defendant Huse, Trooper Lewis said the debris was “scattered over the driveway”; that it started about three and a half feet from the edge of the pavement and “scattered back.” Trooper Lewis had obtained his distances by “[us]ing a step.”

Defendant Gray testified that just prior to the accident she “was doing about 55.” When she saw Mr. Huse, she applied her brakes and they responded. Mrs. Gray “gripped the steering wheel, and the car might have pulled a little bit to the right.” At the time of impact, the rear part of her car was still on the pavement, Mrs. Gray said, and she thought “part of the front of it was still on it.” At the time of impact, according to Mrs. Gray, the back part of Mr. Huse’s car was still “on the highway.” When she saw the Huse automobile turning, Mrs. Gray “would say” there was more traffic behind it. The defendant also testified that she was rendered unconscious when she was thrown from the car after the collision.

On cross-examination by counsel for defendant Huse, Mrs. Gray estimated the length of a car to be 18 or 20 feet; consequently, her estimate was that Mr. Huse was between 72 and 80 feet ahead of her when he started to turn. She meant by this that Mr. Huse was about four car lengths away when she applied her brakes. The application of defendant Gray’s brakes “could have” pulled her car to the right, but she didn’t say that she intentionally turned her automobile to the right. It was brought out that in a pre-trial deposition defendant had answered affirmatively when asked if she did turn to the right, but Mrs. Gray did not remember giving that answer on trial.

On cross-examination by counsel for plaintiff, Mrs. Gray stated that she “[couldn’t] tell * * * by feet” where the impact occurred with reference to the intersecting gravel road, but that the accident happened “along there by the station.” Asked to fix the point where Mr. Huse started his turn with reference to the intersecting road, Mrs. Gray answered “somewhere along there by that graveled road.”

Mrs. Janet Sims, Mrs. Gray’s daughter, stated on direct examination that she would estimate her mother’s speed, as they approached the place of the accident, at “from 55 to 60 miles per hour.” Mrs. Sims said that the Huse automobile was “from three to four car lengths” away when it started to turn; that Mrs. Gray then applied the brakes and the car then “pulled to the right.” Mrs. Sims said that part of the Gray car was off the road but she couldn’t say how much was off the road when the collision occurred, and that the Huse automobile was still partially on the highway at the time.

On cross-examination by counsel for defendant Huse, Mrs. Sims said she had first seen the Huse car when it pulled across the center line. On cross-examination by counsel for plaintiff, Mrs. Sims stated that when Mr. Huse started across the road he was about even with the south edge of the intersecting gravel road. There was some interrogation at this point about a written statement Mrs. Sims had made several months before the trial in which she had stated her mother swerved to the right at about the same time she applied her brakes. Mrs. Sims said that she had believed the statement was true and correct at the time she gave it, but that her recollection was fragmentary because “it all happened so quickly.”

Defendant’s final witness was W. A. Williams, Jr., a student at the State College at Cape Girardeau, Missouri. Mr. Williams had been traveling north behind Mr. Huse; he was about 200 feet from the point of accident when the collision occurred. Mr. Williams testified that the back end of the Huse car was still on the road and the front was off in the drive when the collision occurred, and he estimated that the two vehicles were about 60 feet apart when Mr. Huse started his turn. Mr. Williams, on cross-examination, testified that Mr. Huse’s turn wasn’t “real gradual, but it wasn’t a sharp turn, either.” Mr. Huse had “angled across the road.” About three and a half or four feet of Mr. Huse’s car remained on the pavement at the time of impact.

The defendant also read in evidence parts of a deposition given by the plaintiff before trial in which she had said that the Huse vehicle was not as much as five car lengths from the Gray car when Mr. Huse began his turn, and had said that. Mrs. Gray “didn’t have time to slow, and when she applied her brakes and pulled to the right * * * that was when we hit.”

Having been presented with this welter of confusing and contradictory testimony, the jury was given the following verdict-directing instruction concerning defendant Gray:

“INSTRUCTION NO. 2
Your verdict must be for the plaintiff and against defendant Alberta Gray, if you believe:
First, defendant Alberta Gray allowed all or a portion of the car she was driving to leave the south bound traffic lane of Highway U. S. 61, and,
Second, defendant Alberta Gray was thereby negligent, and,
Third, such negligence directly combined with the acts of defendant Harvey Huse to cause injury to the plaintiff.”

No other instruction specifically referable to defendant Gray’s liability was offered or given. After it had retired, the jury was returned to the courtroom and the following exchange of remarks occurred:

“THE SHERIFF: They want to ask a question.
THE COURT: Did you have some question you desire to ask?
A JUROR: Yes, sir, on Instruction No. 2, ‘Your verdict must be for the plaintiff and against the defendant Alberta Gray if you believe defendant Alberta Gray allowed all or a portion of the car she was driving to leave the southbound traffic lane of Highway U. S. 61.’ Now, is that the law?
THE COURT: Well, the law is contained in all the instructions. The instructions must of course all be taken together. Each of them state a proposition of law, including that instruction, so that all the instructions are to be considered together and that one as it reads.
A JUROR: That was the only question we had. Thank you.
THE COURT: All right.”

The appellant has attacked this submission in her first two assignments of error. Her points are made in verbose and rather obscure fashion, but the sense of her complaint is that Instruction No. 2 constitutes prejudicially erroneous misdirection and that there is no evidentiary basis for submission of the one hypothesized act as an act of causal negligence. The appellant has cast her brief and argument in terms of the submissibility of plaintiff’s case; she maintains that her after-trial motion for judgment (Section 510.290, R.S.Mo. (1959), V.A.M.S.; Rule 72.02, V.A.M.R.) should have been sustained, and expansively states that the only question we should consider is whether the trial court erred in denying that motion. The respondent does not discuss Instruction No. 2; she contents herself with saying that her trial theory was that Mrs. Gray’s negligence consisted of allowing her vehicle to leave the traveled part of the highway and collide with Huse west of the pavement, when in the exercise of the highest degree of care she could have avoided the collision by remaining in her own lane. That was not what was submitted; plaintiff’s brief contains a much more complete statement of her theory than her verdict-directing instruction.

We think the appellant, in maintaining in the trial court that her after-trial motion for judgment in accordance with her motion for directed verdict should have been sustained, and in carrying that line of argument forward here, has misconceived the nature of the error for which she seeks redress. If a plaintiff, having pleaded several grounds or assignments of negligence, elects to submit only one, for which there is no evidentiary support, there is error because the plaintiff made no sub-missible case. On the other hand, if the plaintiff makes a case on the sole submitted ground, but submits it on a wholly insufficient hypothesis, then the error lies in the misdirection of the jury. The two situations are not always readily distinguishable, however, and in any event, we consider appellant’s points to be meritorious. We are of the opinion they should be considered. Compare Miller v. Fink, Mo.App., 387 S.W.2d 173, 176 [1]; and see Rule 79.04, V.A.M.R.

In our view, both of appellant’s complaints regarding Instruction No. 2 are valid, and both involve substantial error. In the first place, the instruction in context amounted to prejudicial misdirection. We realize that under the present practice, instructions need not be as specifically detailed as they formerly were, and should submit only the ultimate factual issues. Rule 70.01(a), V.A.M.R.; Price v. Seidler, Mo., 408 S.W.2d 815, 824 [17]. This applies to modified M.A.I. submissions, which Instruction No. 2 purports to be. Rule 70.01 (e), V.A.M.R. This instruction is not one required to be used, however, and a verdict-directing instruction must still submit those facts which must be proved to authorize recovery, when they are in issue. In the case at hand, Mrs. Gray’s rights and duties were, in our view, the same in substance as those of a driver who sees another vehicle advancing toward him on the wrong side of the road. She could not insist upon the right of way; she had the duty to take all reasonable precautions consistent with her own safety to avoid collision with Mr. Huse, but her duty to act did not arise until she knew or by the exercise of the highest degree of care should have known that a collision would likely occur if she did not do so. In addition to this actual or constructive knowledge of the likelihood of a collision, or condition of “discoverable peril,” as it is sometimes called, the plaintiff was required to show that thereafter defendant Gray had the ability to avert the injury, and having the ability to avoid a collision means not only the mechanical appliances, but sufficient time and distance to take effective action as well. Zalle v. Underwood, Mo., 372 S.W.2d 98, 102 [2]. In the circumstances before us, the plaintiff’s hypothesis, assuming her theory to be as she now states, would not have required Mrs. Gray to take any precaution which was inconsistent with her own safety; the precautionary act hypothesized was that she remain in her own lane of traffic. But the other elements of the plaintiff’s case should have been hypothesized. What lay at the very heart of this controversy was whether Mrs. Gray had enough time and space to avoid the collision by taking reasonable precautions. Instruction No. 2 did not require a finding that she did, though that was an essential element of plaintiff’s case. And since the jury was not advised when Mrs. Gray’s duty to take precautionary measures began, it had no criterion or guide by which to measure the time and space available. In these two substantial respects, Instruction No. 2 was erroneous. Cf. Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., supra, 407 S.W.2d at 629 [7], At the same time, we do not say that a long, detailed hypothesis was necessary; the missing elements could have been supplied in a single sentence.

The appellant further contends that Instruction No. 2 does not hypothesize an act of causal negligence, though again her argument of this point is diffuse and obscure. We are inclined to agree with her that there is no evidentiary support for a finding that remaining in the west or southbound lane alone would have avoided the accident. The evidence most favorable to plaintiff does tend to show that whatever the distance which separated Mrs. Gray and Mr. Huse when Mr. Huse began to turn, and whatever their closing speeds, Mr. Huse was well off the road by the time Mrs. Gray reached the point of collision. The record does not support the conclusion that Mr. Huse would have reached that point off the road if Mrs. Gray had not drastically slackened her speed. To this extent, bearing in mind that the test of causal connection is whether, absent the negligent act, the injury or damage would not have been sustained, Wood v. St. Louis Public Service Co., 362 Mo. 1103, 1109, 246 S.W.2d 807, 811 [4]; LaPlant v. E. I. DuPont De Nemours and Company, Mo.App., 346 S.W.2d 231, 244 [24], the single omission hypothesized is not a submission of causal negligence, because merely staying in the same lane would not have avoided the injury or damage.

The appellant has made a number. of other points directed to the sub-missibility of the plaintiff’s case, most' of which emphasize her position that there was not time to avoid the accident after Mr. Huse began his turn. We have considered these further arguments, but we do not find the matters appellant raises to be determinative, nor do we find it necessary to recount the evidence and demonstrate the possible reasonable inferences to be drawn from it in detail. If Mrs. Gray was confronted with an emergency, that fact would not excuse her as a matter of law. Jones v. Hughey, Mo., 283 S.W.2d 550, 552 [1]; Rohde v. St. Louis Public Service Co., Mo., 249 S.W.2d 417, 420 [1], We do not consider Mr. Huse’s estimates of time, distance and position on the road to be so unbelievable that they do not constitute substantial evidence, Wood v. Ezell, Mo.App., 342 S.W.2d 503, 506-507 [4, 5], and the location of the debris, scattered as it was over an area of about 40 feet, was not conclusive proof of the point of impact, nor the manner in which the accident occurred. Williams v. Cavender, Mo., 378 S.W.2d 537, 543 [6]; Hamre v. Conger, 357 Mo. 497, 506-507, 209 S.W.2d 242, 248-249 [9]; Hayward v. Richardson Construction Co., 136 Mont. 241, 347 P.2d 475, 478 [3], 77 A.L.R.2d 1144, 1149. We think the appellant’s point that there is no evidence of intentional swerving to the right is strained and without substantial merit. Mrs. Thompson, being asked on direct examination what her sister did when Huse turned, answered: “Well, when he pulled across in front of her, she later applied her brakes and pulled to the right." (Our emphasis.) On cross-examination by counsel for defendant Gray, being asked if she was uncertain whether the rear end of the Gray car was off the pavement when the accident occurred, plaintiff answered: “All I remembered that she applied her brakes and pulled to the right.” (Our emphasis.) Asked on cross-examination by counsel for defendant Huse if Mr. Huse had crossed the highway when Mrs. Gray “pulled to the right,” Mrs. Thompson answered “yes,” and then qualified her answer by saying, “I wouldn’t say he was off the highway when she pulled to the right, but he was off the highway when we hit.” (Our emphasis.) We note that during the course of Mrs. Sims’ interrogation about a written statement she had made, counsel interjected, “Your Honor, I don’t think there is any conflict in swerving to the right other than what this lady has testified to.” If the repeated statement that defendant Gray “pulled to the right” is not exactly the same as saying Mrs. Gray turned right, we regard it as the equivalent.

In our view, we have been presented with reversible error, defectively preserved, and the cause should be retried on proper instruction. At the same time, we consider that the errors presented may have been and were likely induced by general unfamiliarity with the new instruction. practice, and that upon the principles we believe to be applicable the plaintiff has a sub-missible case. The appropriate action is reversal of the judgment and remand for a new trial. Evans v. Landolt, supra, 389 S.W.2d at 18-19 [3]. It is so ordered.

STONE, P. J., and TITUS, J., concur.

On Motion for Rehearing

PER CURIAM:

The appellant has filed an alternative motion for rehearing or for transfer to the Supreme Court, in which she first vigorously argues that we have overlooked one of the points she advanced upon her original argument in this case, and further maintains that the cause should be remanded for retrial upon the issue of liability only. Her first point is simply a reargument of issues decided in the original opinion and, under the provisions of Rule 83.16, V.A.M.R., must be disregarded. Ackerman v. Globe-Democrat Publishing Co., Mo., 368 S.W.2d 469, 481 [13], In contending for a limited remand, the appellant says that if the case is to be reversed she is entitled to a remand on the issue of liability only as a matter of law, since the question of damages was not raised on appeal by either party. Without holding that the appellant is entitled to have the „ remand limited to the issue or issues of liability as a matter of law simply because she made no point of error relating to the assessment of damages upon the appeal, Artstein v. Pallo, Mo., 388 S.W.2d 877, 882 [6], the court has concluded that in this instance a new trial limited to the issue or issues of liability can be had without prejudice or injustice to the plaintiff. Therefore, upon the motion for rehearing, the opinion is modified and it is ordered that the cause be reversed and remanded for a new trial upon the issue of liability only, and the motion for rehearing is denied; the alternative motion for transfer to the Supreme Court is also denied.

All concur.

      . Apparently a name for the group of businesses located in the parking area west of the highway.

      . This “island” appears in the testimony at several places; it is described as being 36 yards long, with a driveway at either end. Apparently it lies in front of the cafe and filling station.

      . Page v. Hamilton, Mo., 329 S.W.2d 758, 762 [5]; Haire v. Stagner, Mo.App., 356 S.W.2d 305, 308 [2, 3]; Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782, 785-786 [3, 4] [5, 6].

      . Evans v. Landolt, Mo., 389 S.W.2d 15, 18-19 [3]; Girratono v. Kansas City Public Service Co., 363 Mo. 359, 368, 251 S.W.2d 59, 64 [7]; see White v. Kansas City Public Service Co., 239 Mo.App. 571, 577-578, 193 S.W.2d 60, 63.

      . Compare Girratono v. Kansas City Public Service Co., Mo.App., 243 S.W.2d 539, 544-545 [10] [11] [15], with Girratono v. Kansas City Public Service Co., supra, 363 Mo. at 368, 251 S.W.2d at 64 [7].

       * * * xhe jury is impaneled to decide disputed issues of fact. The failure to instruct on every issue has been error, and continues to be error. * * * A lawyer needs to know what facts must be proved to authorize a recovery, and then make sure that the verdict directing instruction hypothesizes each such element.” M.A.I. XXXI; see also Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622, 630 [8, 9].

      . Nolte v. Childress, Mo., 387 S.W.2d 569, 573 [1-4]; Probst v. Seyer, Mo., 353 S.W.2d 798, 804 [7, 8], 91 A.L.R.2d 1252, 1259; Brooks v. Stewart, Mo., 335 S.W.2d 104, 111, 81 A.L.R.2d 508; Nelms v. Bright, Mo., 299 S.W.2d 483, 489-490 [14-16].

      . Becker v. Clemons, Mo.App., 295 S.W.2d 203, 208 [5]; Kieffer v. Bragdon, Mo.App., 278 S.W.2d 10, 15 [5]; Shaw v. Wilcox, Mo.App., 224 S.W. 58, 59 [4].