author: BARROW, Justice.

text:
    LAMBERT CORPORATION, Appellant, v. J. B. MARTIN, Appellee.
    No. 14089.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1963.
    Rehearing Denied June 12, 1963.
    Second Rehearing Denied July 17, 1963.

      Wm. N. Bonner, Houston, for appellant.
    Dodson, Duke & Branch, San Antonio, for appellee.
   BARROW, Justice.

Lambert Corporation, a private Texas corporation, appeals from an order of a district court of Bexar County, overruling its plea of privilege to be sued in Harris County, where its principal office is situated. J. B. Martin, d/b/a Texas Joint Sealing Company, in his controverting plea averred that venue is maintainable in Bexar County under Subd. 23 of Art. 1995, Vernon’s Ann.Civ.Stats., which provides in part:

“Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county; * * *»

It is clear that plaintiff may sustain venue under any one of these alternatives. McDonald, Texas Civil Practice, § 4.30. Martin asserts that the venue is maintainable under the latter two stated provisions of this subdivision.

This plea was heard without a jury and no findings of fact or conclusions of law were filed by the trial court. Therefore, it is presumed that the trial court found all fact issues raised by the evidence in a manner to support the judgment. It is our duty to examine the evidence in the light most favorable to appellee, Martin, and to indulge every reasonable inference in favor of the judgment. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

Martin testified that on April 28, 1960, he entered into two contracts with the United States Government, wherein he agreed to perform concrete repair and joint seal work on the runways of the U. S. Naval Auxiliary Air Station, Chase Field, Bee County, Texas. Appellant is a manufacturer and distributor of paints, waterproofing materials, varnishes, enamels, lacquers, and synthetics, and holds itself out as an expert in the use of these products. Martin alleged that before he signed the contracts with the Navy, he discussed the specifications of the contracts with Mr. Lambert, president of appellant, and a chemist employed by appellant company. These discussions took place in Bexar County, Texas. The specifications called for the use of a sealer material of a two-component, cold-applied, suitable elastomeric, polymer-type compound which, among other requirements, would be capable of completely filling the joints without the formation of air holes or discontinuities. Martin testified that Lambert represented and warranted to him that a product manufactured by Flintkote Corporation of New York could meet these specifications. Martin agreed to purchase from appellant the necessary amount of the Flintkote M-200 Joint Sealer to perform this contract. It is undisputed that the joint sealer compound did not produce the results required by the contract specifications, and after several months’ delay and many discussions between the Navy Inspector, Martin, Lambert, and the officials^ of the Flintkote Corporation, Martin ws required, at considerable additional expense, to remove this material from the joints and replace it with material of another type. It is a disputed issue for trial on the merits as to the cause of the failure of the Flintkote material to perform as required by the contract specifications.

The exact relationship between appellant and the Flintkote Corporation is not established by the evidence. Some of the documents identify it as a sub-contractor. The material was manufactured by the Flintkote Corporation at its New Jersey plant, inspected there by a Navy Inspector and shipped direct to Beeville. It is seen that Martin had no negotiations whatsoever with Flintkote Corporation, although he did receive technical assistance in the application of the material from one of its employees. Martin ordered the material from appellant and agreed to pay appellant for same. He testified that this was done in reliance upon the representations and warranty of Lambert that the material would perform in a manner to meet the contract specifications. It failed to do so and this suit was filed to recoup Martin’s damages by reason of the misrepresentations and breach of warranty of Lambert as to the capabilities of this material.

Subd. 23 of Art. 1995, is applicable if some part of the transaction creating the primary right, or some part of the transaction relating to the breach of the right, occurred in the county where the suit is brought. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674; Permian Basin Life Ins. Co. v. Stuart, 357 S.W.2d 615; Alamo Products Co. v. French, Tex.Civ.App., 316 S.W.2d 765. In this case it is seen that the primary right asserted is for damages for misrepresentations and breach of warranty by appellant’s officer. These misrepresentations were made in Bexar County and therefore the cause of action or a part thereof arose in Bexar County, within the meaning of Subd. 23 of the venue statute.

In view of our holding that the cause of action, or a part thereof arose in Bexar County, we do not deem it necessary to pass upon the appellant’s other points as to whether it had an agency or representative in Bexar County.

The judgment is affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Claudia LOTSPEICH et vir, Appellants, v. CHANCE VOUGHT AIRCRAFT et al., Appellees.
    No. 16172.
    Court of Civil Appeals of Texas. Dallas.
    May 10, 1963.
    Rehearing Denied July 26, 1963.

      Mullinax, Wells, Morris & Mauzy, Dallas, for appellants.
    Thompson, Knight, Wright & Simmons, Pinkney Grissom, Rust E. Reid and John A. Gilliam, Dallas, for appellees.
   BATEMAN, Justice.

Appellant Claudia Lotspeich (and husband) sued Chance Vought Aircraft, herein called the Company, and its regularly employed physician, Dr. John D. Horgan, for damages on account of appellees’ failure to tell her that she had active tuberculosis, a condition alleged to have been disclosed by X-rays of her chest taken by appellees as part of her pre-employment physical examination. The trial court sustained appel-lees’ motion for summary judgment, and our careful consideration of the entire record convinces us that there was no error in doing so.

Appellant’s first five points and her seventh and eighth points challenge the action of the trial court in holding that appellant’s pleadings and the depositions and affidavits on file show as a matter of law that she has no cause of action against appellees. Her sixth point asserts that the court erred in holding by necessary implication that her cause of action was extinguished by the Texas Workmen’s Compensation Act. We shall discuss these two groups of contentions in inverse order.

FACTS

The following facts appear without dispute from the depositions and affidavits:

Appellant worked for the Company twice, once in 1949 and again in 1952. Incident to each employment she underwent a physical examination, including chest X-rays at the hands of Company doctors and nurses on Company premises. She and others being examined were told by “the nurses” that if the examinations revealed anything wrong with them they would be told about it. Appellant began her last employment on June 16, 1952, the date of her examination, and quit in September 1952. She was told by Air Force doctors in 1955 that their X-ray examination of her chest revealed active tuberculosis. Subsequently two doctors in Denver, Colorado examined the X-ray plates made of her chest by the Company on June 16, 1952, and one of them was of the opinion that they showed a large cavi-tary lesion in her left chest and the other was of the opinion that they showed very definite evidence of far-advanced pulmonary disease, probably tuberculosis, and would have indicated to him complete diagnosis and further treatment.

The appellee Dr. John D. Horgan was in charge of the Company’s medical department since December 1950. He interpreted appellant’s chest X-rays and noted thereon: “Negative for pulmonary pathology; cardiac shadow within normal limits.” On reexamination thereof at the time of his deposition he said, “As I see it today, if I saw that I would want another film.”

The Company had a general rule that required an employee to have a physical examination within the three days preceding his or her going to work. In 1952 X-rays of applicants for employment were in no case read by Dr. Horgan or by any employee working under his supervision in less than three weeks after the X-rays were taken, and in many cases not until from four to eight weeks after they were taken, unless the history of the applicant indicated that they should be read immediately. The physical examination record and medical history given by appellant on June 16, 1952 were considered by Dr. Horgan as routine and not indicative of an immediate reading of hér X-ray plates. Throughout the year 1952 the Company was insured under a policy of Workmen’s Compensation Insurance under Texas Law.

OPINION

Effect of Workmen’s Compensation Law.

Appellant contends that, since she is not claiming damages for injuries received in the course of her employment, the duty of appellees to warn her of the existence of the disease did not arise out of the employer-employee relationship, but was a continuing duty fixed as a matter of public policy and continued throughout the course of her employment, and that her right of action was, therefore, not prohibited or extinguished by the Workmen’s Compensation Law. We do not agree. Sec. 3 of Art. 8306, Vernon’s Ann.Tex.St., provides that the employees of a subscriber “shall have no right of action against their employer or against any agent, servant or employe of said employer for damages for personal injuries, etc.” Our Courts are fairly uniform in holding that in view of this provision, the remedy given by the Workmen’s Compensation Law is exclusive and that the employee has no right of action against his employer on account of bodily injuries sustained in the course or scope of the employment (except for injuries resulting from an intentional or willful act of the employer), even though the injury complained of may not be compensable under the Workmen’s Compensation Law. Gordon v. Travelers Ins. Co., Tex.Civ.App., 287 S.W. 911, err. ref.; Montgomery v. United Salt Corp., Tex.Civ.App., 112 S.W.2d 494, err. dis.; Huckabay v. Hughes Tool Co., Tex.Civ.App., 122 S.W.2d 233, err. dis.; Robertson v. C. A. Bryant Co., Tex.Civ.App., 127 S.W.2d 549, err. dis. “judgment correct.” See also Tourville v. United Aircraft Corp., 2 Cir., 262 F.2d 570.

In Gordon v. Travelers Ins. Co., supra, it was held that an employee had no valid claim under the Workmen’s Compensation Law for injuries resulting from disease caused by his inhaling poisonous fumes while in the course of his employment; also that, not having given the notice mentioned in Sec. 3a, Art. 8306, V.A.T.S., the employee had waived his right of action at common law against his employer. The Supreme Court refused writ of error and we have found no case, and have been cited to none, questioning the validity of those holdings.

Appellant also contends that the existence of the Workmen’s Compensation Insurance policy was not established by the affidavit of the Company’s Insurance and Retirement Manager, wherein he stated under oath that during the year 1952 the Company was insured under such a policy written by Liberty Mutual Insurance Company, because a sworn or certified copy of the policy was not attached to the affidavit as required by subdivision (e) of Rule 166-A, Vernon’s Texas Rules of Civil Procedure. No such, objection was made in the trial court as required by Rule 90, Vernon’s Texas R.C. P.; therefore we hold that the defect, if any, was waived. Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155, no wr. hist.; Wade v. Superior Ins. Co., Tex.Civ.App., 244 S.W.2d 893, err. ref. Especially would this be true when, as here, all appellees were trying to prove was the existence of the insurance coverage, not the details of the policy itself. Salinas v. Salinas, Tex.Civ.App., 77 S.W.2d 568, err. dis.

Appellant also takes the position that appellees failed to meet the burden of showing that her cause of action arose while she was an employee, suggesting that it arose.at the time of the examination, at which time she was an invitee rather than an employee. It is our view that under the undisputed facts appellant’s employment began on June 16, 1952, the date of the examination, and that the appellees could not have learned of the tuberculosis until at least three weeks thereafter, which would be the earliest time the cause of action could have arisen, and that appellant was indubitably an employee of the Company at that time.

But even if we were to consider that the cause of action arose at the very time of her physical examination, and before she actually began her work for' the Company, we would be compelled to hold that, so far as the applicability of the Workmen’s Compensation Law is concerned, she was an employee and subject to and covered by that Law while being given the physical examination. Ott v. Consolidated Underwriters (Mo.App.), 311 S.W.2d 52, and Smith v. Venezian Lamp Co., 5 A.D. 2d 12, 168 N.Y.S.2d 764.

In the case before us, the physical examination was conducted on the employer’s premises, not for the benefit of the applicant, but wholly for the benefit of the employer and under its direction and control. Therefore, it is clear that appellant was an employee when the duty arose, if it did, to tell her of her disease, regardless of whether that duty came into being at the time of the examination or at least three weeks later when her X-ray plates were read and interpreted. Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Heacker v. Southwestern Bell Telephone Co., 5 Cir., 270 F.2d 505.

Accordingly, we hold that appellant’s right of action, if any ever existed, was extinguished by the Workmen’s Compensation Law, Art. 8306, Sec. 3, V.A.T.S.

Did appellant have a cause of action?

That brings us to a consideration of the question raised by appellant’s points of error one through five, seven and eight, wherein she assails the implied holdings of the trial court that it appeared as a matter of law, aside from the prohibition of Sec. 3, Art. 8306, V.A.T.S., that appellant had no cause of action against either the Company or Dr. Horgan. Appellant sues upon two^-^alternative grounds: (1) that her tubercular condition was revealed to appel-lees by the examination of June 16, 1952 and that they were negligent in withholding and concealing this information from her and in not disclosing it to her; and (2) in the alternative, if they did not know of her tuberculosis they were negligent in failing to examine the X-rays and properly diagnose and identify the tuberculosis symptoms pictured thereon. The first ground raises the question of whether the employer and its physician owed appellant the duty to disclose known information concerning her health, while the second raises the question of whether the employer and its physician, having undertaken to examine her, owed her a duty to discover her tubercular condition.

In her brief appellant addresses herself only to the first ground and, assuming that without question appellees knew of her disease, argues and presents authorities to the effect that by their silence they breached a duty to impart this knowledge to her. But the record before us discloses affirmatively and without dispute that appellees did not have this knowledge; therefore, appellant is relegated to her second and alternative ground of recovery based upon appellees’ breach of their alleged duty to discover the disease.

The record before us indicates an issue of fact on whether appellees exercised ordinary care when they failed to discover the tuberculosis; but this failure would not be actionable negligence unless appellees owed appellant a legal duty to discover it. 30-B Tex.Jur. 175, § 5. This was not the usual relationship of physician and patient. Dr. Horgan was employed by the Company to determine whether this woman was qualified from a standpoint of health to do the work for which she had applied. This was wholly for the benefit of the Company, and the doctor owed to it alone the duty to perform efficiently the work the Company had employed him to do. Appellant must be charged with knowledge of this. She did not select Dr. Horgan to examine her for her benefit, and she did not ask him for a report. She had no legal right to demand that he exercise any care whatever in conducting the examination, except to avoid injuring her. We find no Texas authorities on this point, but at the same time we find none in any jurisdiction holding that either a physician examining a job applicant, or the employer, owes any duty to the applicant to discover the presence of disease. Such a holding would place an unreasonable burden on employers.

Therefore, there being no duty on ap-pellees to discover the tuberculosis, there could be no actionable negligence in their failure to do so.

Affirmed.

On Motion for Rehearing

Appellant earnestly attacks our holding that the affidavit of the Company’s Insurance Retirement Manager, which stated that the Company did carry workmen’s compensation insurance, was sufficient to support the summary judgment, even though a sworn or certified copy of the policy was not attached. Appellant asserts that our holding conflicts with that of the Supreme Court in Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, which was a suit for debt and foreclosure on land and wherein the defendants pled that the controversy had been adjudicated in their favor in another suit in the same court between the same parties and filed a motion for summary judgment referring to such former judgment, but not attaching a certified or sworn copy thereto. It is true that the court, speaking through Mr. Justice Griffin, held that relief by summary judgment can be granted only when the provisions of Rule 166-A are strictly complied with, and that such compliance required that certified copies of the documents referred to in the affidavit should be attached to the motion and that, having failed to do so, defendants were not entitled to summary judgment.

However, in a later case, Youngstown Sheet & Tube Co. v. Penn, Tex., 363 S.W.2d 230, the Supreme Court, speaking through Mr. Justice Walker, after pointing out that no objection was urged in the trial court to the absence of sworn or certified copies of the papers referred to in affidavits attached to the motion for summary judgment, said:

“If petitioner was in any doubt as to these matters or if it was prejudiced in any way by the fact that sworn or certified copies of the operating agreements were not attached to or served with the Johnson affidavit, it should have excepted to the affidavits at or prior to the hearing. The deficiencies which it now urges appear to be purely formal, and it may be assumed that they would have been corrected upon proper exception in the trial court. We hold that objections of this kind may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

The Supreme Court cited the opinion of this court in Farmers & Merchants Compress & Warehouse Co. v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854, err. ref. n. r. e., in which we made the same holding, citing the opinion of the Austin Court of Civil Appeals in Lobit v. Crouch, Tex.Civ. App., 293 S.W.2d 110, err. ref. n. r. e.

In a sincere effort to apply here the doctrine announced in the latest expression of the Supreme Court on the subject in Youngstown Sheet & Tube Co. v. Penn, supra, we adhere to our original holding that appellant’s objection to the absence of a sworn or certified copy of the insurance policy as an exhibit to the affidavit in question, not having been raised in the trial court and an opportunity given to appellee to correct the defect, was waived. Rule 90 Vernon’s Texas R.C.P. We say this with confidence because we think “it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” If appellant had seriously contended that there was a “contested fact issue” concerning the existence of this insurance coverage, as she now asserts in her motion for rehearing, it is our feeling that she would have insisted by special exception that a sworn or certified copy of the policy be filed in connection with the motion for summary judgment, or requested appellee to admit there was no such policy under Rule 169, Vernon’s Texas R. C.P., or requested additional time to establish by deposition the absence of such policy, as authorized by subdivision (f) of Rule 166-A.

The complaint of appellant is in reality that the affidavit in question violates the best evidence rule. We adhere to our former holding that the affidavit was sufficient because all it purported to establish was the existence of a certain type of policy, not its contents; and in addition to the cases cited in support of that holding in the main opinion, we would also cite Howard v. Britton, 71 Tex. 286, 9 S.W. 73; Wolf v. Wilhelm, Tex.Civ.App., 146 S.W. 216, err. ref.; Hatfield v. Hatfield, Tex.Civ.App., 233 S.W. 350, err. dism.; Kansas City Life Ins. Co. v. Fisher, Tex.Civ.App., 83 S.W.2d 1063, err. dism.; Haynes B. Ownby Drilling Co. v. McClure, Tex.Civ.App., 264 S.W.2d 204, err. ref. n. r. e.; 23 Tex.Jur.2d 335-349, § 223; McCormick and Ray, Tex. Law of Evidence, Vol. 2, 409, § 1566, wherein it is said:

“The rule requiring the production of original writings applies only where the purpose of the evidence offered is to prove the contents of the document, for it is only in such cases that the principal danger, that of inaccurate transmission of the terms of the writing, exists. Consequently evidence to the effect that a certain document is in existence, or as to its execution, or delivery, is not within the rule and may be given without producing the document.”

Appellant also complains of our finding that the X-ray plates were not read by Dr. Horgan or any employee working under him in less than three weeks after the X-rays were taken, as being based wholly on the testimony of Dr. Horgan, an interested party whose testimony is uncorroborated. Appellant offered nothing on the hearing of the motion for summary judgment to cast doubt or suspicion upon the testimony, and it is our opinion that it comes within a well-recognized exception* to the general rule, as expressed in the following excerpt from 24 Tex.Jur.2d 375, § 714:

“Ordinarily, the jury is not bound by the uncontradicted testimony of an interested witness. However, under an exception to this general rule, if the uncontradicted testimony of an interested witness is clear, direct, positive, and free of inconsistency, and if there are no circumstances that tend to cast suspicion on it, the witness’ testimony must he accepted as true as a matter ■of law and no issue of fact is created for the jury.”

Many authorities .are cited in support of the above text including Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908, wherein it is said:

■“But there is an exception to this rule, which is that where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.”

Furthermore, we think it can now properly be said to be the law in Texas that the uncorroborated affidavit or deposition of an interested party or witness will support a summary judgment in the absence of a controverting affidavit or of an attempt by the party against whom the motion is urged to avail himself of the right under subdivision (f) of Rule 166-A, Vernon’s Texas R.C.P., and seek such delay as may be necessary to secure affidavits or take depositions to controvert the facts stated by the interested party or witness in his affidavit. Bottomed upon the holding to that effect in Fowler v. Texas Employers Insurance Ass’n., Tex.Civ.App., 237 S.W.2d 373, err. ref.; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, err. ref. n. r. e.; and Gifford v. Travelers Protective Ass’n., 9 Cir., 153 F.2d 209, 211, the Court of Civil Appeals at Waco in Holland v. Lansdowne-Moody Co., Tex.Civ.App., 269 S.W.2d 478, 481, no wr. hist., said:

“It is the law that where a plaintiff, at a hearing on defendant’s motion for summary judgment under Rule 166-A, files no counter affidavits, and makes no showing other than as stated in their pleadings, and makes no showing that affidavits are unavailable, he in effect admits the facts alleged in defendant’s sworn affidavits supporting the motion, and for which reason cannot complain of the court’s granting the motion for summary judgment.”

As so clearly stated by Mr. Justice Pope in Rolfe v. Swearingen, supra:

“Summary judgment proceedings do not seek to decide issues of fact, but to ascertain if any genuine issues of material fact exist. * * * Appellees’ showing was supported by sworn factual statements sufficient upon their face to establish a complete defense to everything appellants alleged. The verity of those sworn statements was in no way challenged by counter-affidavits or other sworn statements. In the hearing to locate the dispute about genuine and material facts, all facts stood undisputed, unchallenged, and uncontroverted. When such a condition exists, there are no facts to try.”

But, as pointed out in our main opinion, regardless of the correctness of our position with respect to the showing made as to coverage of the employer under the workmen’s compensation law and the question as to whether appellant was an employee at the time her cause of action, if any, arose, or whether under the law the cause of action was extinguished by the workmen’s compensation law, in the final analysis this case turns on the question of whether the appellees owed appellant any duty to discover and disclose to her the fact that she had tuberculosis. Appellant says that our holding in this respect was erroneous, citing the early case of Missouri, K. & T. Ry. Co. of Texas v. Wood, 95 Tex. 223, 66 S.W. 449. We have carefully studied the opinion in that case and find nothing in it to suggest, much less require, changing our disposition of this case.

The motion for rehearing is overruled.


author: PHILLIPS, Justice.

text:
    LONE STAR GAS COMPANY, Relator, v. Honorable O. L. PARISH et al., Respondents.
    No. 11120.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1963.
    Hardeman, Smith & Foy, San Angelo, Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case, Jack Pew, Jr., Dallas, for appellant.
    Kerr, Gayer, Ray & Lyons, San Angelo, for appellees.
   PHILLIPS, Justice.

This is an original proceeding filed herein by our leave in which -relator seeks to invoke our jurisdiction under Art. 1824, Vernon’s Annotated Civil Statutes, to require respondent, Honorable O. L. Parish, Judge of the District Court of Tom Green County, 119th Judicial District, to render judgment on the verdict of the jury. The following is taken from relator’s petition for writ of mandamus:

“IV. The trial pleadings were Plaintiffs’ first amended original petition and Defendant’s first amended original answer. Plaintiffs alleged that they are the owners of Eubanks Furniture, a store in San Angelo; that Defendant while engaged in maintenance work near the store, had placed flare pots around the area where the work was going on; and that, through Defendant’s negligence, smoke and soot from the flare pots drifted into Plaintiffs’ store and damaged their stock. Defendant’s pleading included a general denial and allegations of contributory negligence and unavoidable accident.
“V. The case went to trial on March "18; 1963, and, on the afternoon of March 19, 1963, after both sides had presented evidence and the arguments of counsel had been made, nine special issues were submitted to the jury.
These special issues may be summarized as follows:
No. 1 — Whether, on the occasion in question, Defendant’s employees had operated flare pots that emitted black, greasy soot.
No. 2 — Whether such operation, if any, was negligence.
No. 3 — Whether such negligence was a proximate cause of the damage.
No. 4 — The damage issue.
No. 5 — Whether Plaintiff was negligent in leaving his front door open while the flares were burning.
No. 6 — Whether such negligence, if any, was a proximate cause of the damage.
No. 7 — The unavoidable accident issue.
No. 8 — Whether Plaintiff could have mitigated his damages.
No. 9 — By what amount of money Plaintiff could have mitigated his damages.
“VI. The jury deliberated until approximately S :45 P.M., and then adjourned for dinner. It returned at approximately 7:00 P.M., and at approximately 9:30 P.M., it sent the following note to Judge Parish:
“‘Jury agrees on #1 As Yes
Jury splits on #2 — 9 No — 3 Yes votes
#4 — Not voted
Jury agrees on #5 as No
Jury agrees on #7 “It was an unavoidable accident”
Jury splits on #8 — 11 Yes — 1 No #9 — Not voted
Rooker, Foreman’
Judge Parish showed this note to counsel for Plaintiffs and counsel for Defendant, and then called the jury into open court. With both counsel for Plaintiffs and counsel for Defendant present, Judge Parish inquired of the jurors whether they could reach a verdict, and the foreman answered that the jury could not answer all the special issues unanimously, but that they had answered some of the issues and had written those answers in the appropriate places on the charge. After asking counsel for Plaintiffs and counsel for Defendant whether they wished the jury to be interrogated further, and receiving no request for further interrogation, Judge Parish thereupon read aloud the answers made by the jury to the special issues, indicating, where no answer had been made, that there was no answer. The answered issues were as follows:
No. 1 (Whether Defendant operated flare pots that emitted black, greasy soot) : ‘Yes.’
No. 5 (Whether Plaintiff was negligent in failing to close the door): ‘No.’
No. 7 (Unavoidable accident): ‘It was the result of an unavoidable accident.’
The other issues were not answered.
“After Judge Parish read the verdict as aforesaid, he inquired of counsel for Plaintiffs and counsel for Defendant whether they wished any other question to be directed to the jury. Both counsel answered that they did not. Thereupon, Judge Parish announced that he would receive the verdict. No objection to receipt of the verdict was then made by anyone. No motion was made that the jury be required to deliberate further. The jury was thereupon discharged. The foreman having signed the verdict, it was filed at 10:00 o’clock P.M. March 19, 1963.
“VII. On March 20, 1963, Defendant filed its motion for judgment on the verdict, and Plaintiffs filed their motion for venire facias de novo. On April 3, 1963, Judge Parish granted Plaintiffs’ motion for the sole reason that the verdict was incomplete and would not support a judgment, the written order containing the following:
“ ‘And it further appearing to the Court that the verdict of the jury is incomplete, (such verdict being incorporated herein by reference,) and that no judgment should be entered thereupon.
“ ‘IT IS THEREFORE ORDERED by the Court that the motion of Defendant, Lone Star Gas Company, for judgment on the verdict be, and same is hereby overruled; that the motion of Plaintiffs, Milton S. Eubanks and Florene Eubanks d/b/a Eubanks Furniture, for venire facias de novo, he and the same is hereby sustained; that a mistrial be and it is hereby declared, and that this cause shall stand on the docket for trial at such date as may be determined by the court.’ ”

Relator contends that, under the circumstances of this case, Judge Parish’s reason for granting the mistrial was incorrect in that plaintiffs in the trial waived their right to secure any additional answers to the special issues and that the verdict contains all of the findings necessary to support a judgment for relator. Relator further contends that Judge Parish had and has the ministerial duty to enter judgment on the verdict for relator that plaintiffs respondents take nothing. That since Judge Parish’s order granting the mistrial is not ap-pealable, Defendant is without remedy to obtain its judgment other than by this petition for writ of mandamus.

Rule 300, Texas Rules of Civil Procedure, provides, in part, that “[wjhere a special verdict is rendered * * * the court shall render judgment thereon unless set aside or a new trial is granted * *

If the verdict has been properly set aside by the Trial Court under this Rule, then there is no verdict upon which judgment should be or can be rendered.

In a sworn answer to relator’s petition,, Judge Parish states:

“HI. It is agreed that the Trial Court granted Plaintiffs’ motion for a mistrial, but it is specially denied that the sole reason for such action was that the jury verdict was incomplete.
“IV. The Trial Court decided before receiving the partially answered charge that the jury was hopelessly deadlocked and in permanent disagreement on the answers to the issues numbered 2, 3, 4, 8 & 9, and had been kept together for such a time as to render it altogether improbable that they would ever reach any further agreement, and they should be discharged without further deliberation, whatever the answers then were, and that a mistrial should he declared.
“V. The Trial Court decided, of its own motion, that the answer to special issue numbered 5 was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.”

We accept as true all factual statements made by Judge Parish in the quotation above.

It is our opinion that Judge Parish in the exercise of judicial discretion set aside the jury verdict upon which relator seeks to predicate a judgment and that this action in doing so is not shown to be arbitrary or void.

Relator maintains that the verdict was sufficient for the rendition and entry of judgment, that such rendition and entry is a ministerial act that should be compelled by this Court. In this connection, relator cites the opinion of this Court in Fox v. Lewis, Tex.Civ.App., 344 S.W.2d 731, for authority.

We find no fault with the law enunciated by relator in Fox v. Lewis, however, the rule quoted has no application here inasmuch as the Fox Case was not a proceeding in mandamus and consisted of a fact situation wholly unrelated to the case at bar.

Relator further contends that where the judge’s order specifically sets out a reason for his granting a mistrial and refusing to enter judgment on the verdict, he thereby indicates that no other reason exists, and if the stated reason is erroneous and does not involve the exercise of judicial discretion, the writ of mandamus will issue. In support of this contention, relator cites Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875; Indemnity Insurance Company of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830, among others. These cases are not in point here as they involve situations where the sole reason given by the judge for refusing to enter judgment was erroneous or the judge was in error in ruling that the issues answered would not support a judgment. These cases do not involve a situation such as we have here where a judge in his discretion orders a new trial, not arbitrarily, but. in the interests of justice.

Relator further takes the position that while the plaintiffs below did have the right to have the jury retire for further consideration of the primary negligence issues under the doctrine in Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368, that they waived this right by their failure to call this to the attention of the Court. In behalf of this contention they cite Lewis v. Texas Employer’s Ins. Ass’n, 151 Tex. 95, 246 S.W.2d 599.

We do believe that had Judge Parish not filed his answer stating the reasons for his decision in the case, that the relator herein would have been entitled to his writ under the authority he has cited.

We base our holding in this case on our opinion in Polis v. Fuchs, Tex.Civ.App., 315 S.W.2d 577, no writ history, which followed the law as stated by the Texas Supreme Court in Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875, 876. These cases hold that the Trial Court may, on his own motion, set aside a jury verdict or accomplish the same end by granting a new trial in cases where the Court exercises a judicial rather than a ministerial function. Such is the case here.

As stated above, relator would have been entitled to have had judgment entered on the original record that was presented to this Court. Later, when Judge Parish’s reasons for his actions became known to this Court, the whole complexion of the case was changed. Due to these circumstances and in the interest of fairness, we hold that the costs in this proceeding should be taxed against the respondents, Milton S. Eubanks and wife, Florene Eubanks.

The mandamus is denied.

Mandamus Denied.


author: TIREY, Justice.

text:
    E. M. LAND, Appellant, v. W. R. TURNER et ux., Appellees.
    No. 4102.
    Court of Civil Appeals of Texas. Waco.
    June 6, 1963.
    Rehearing Denied Aug. 1, 1963.

      Adams & Granberry, Crockett, for appellant.
    J. B. Sallas, Crockett, for appellee.
   TIREY, Justice.

This is a. suit in trespass to try title. The Court overruled defendant’s motion for instructed verdict at the close of the evidence. Issues 1 and 2, absent the burden of proof clause, are substantially: (1) Do you find that the defendant, and those through whom he holds conveyances, either in person or through a tenant or tenants, held peaceable and adverse possession of the land in controversy, continuously cultivating, using or enjoying the same and paying all taxes thereon, and claiming under a deed or deeds duly registered for any consecutive period of five years prior to May 27, 1960 ? To which the jury answered “No”. (2) Do you find that the defendant Land and those under whom he claims, either in person or through a tenant or tenants, or partly in person and partly through a tenant or tenants, held exclusive, peaceable and adverse possession of the land in controversy, cultivating, using and enjoying the same, for any period of ten consecutive years, or longer, prior to May 27th, 1960? To which the jury answered “No”.

The Court overruled defendant’s motion for judgment non obstante veredicto and granted plaintiffs’ motion for judgment on the verdict, and decreed that plaintiffs recover from defendant title and possession of two tracts of land in Houston County, Texas. The first tract being 180 acres and the second tract being 160 acres, each described by metes and bounds in the decree, and also awarded to plaintiffs writ of possession and taxed all costs against defendant. Defendant excepted to the decree and gave notice of appeal to the First Supreme Judicial District at Houston. Thereafter the Court overruled defendant’s motion for a new trial, and defendant perfected his appeal to the Houston Court, and it is here on transfer.

The judgment is assailed on two points. They are substantially to the effect that the Court erred: (1) In its failure to render judgment for defendant Land for a 44 acre tract described in his first amended original answer, for the reason that there is no showing that plaintiffs established in themselves a prima facie right for the recovery of this particular tract; and (2) because the record shows that the title to the 44 acre tract was outstanding in some person other than appellees.

We overrule the foregoing points for reasons hereinafter briefly stated. This being an action in trespass to try title, ap-pellees had the burden of establishing title by an affirmative showing and by a preponderance of the evidence. See Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, and cases there cited. Also Tex.Jur., 41A, Sec. 143, page 677, and Sec. 36, pages 553-554. In this cause appellees in their petition put in issue two tracts of land, the first one being 180 acres out of the J. M. Love Survey, which they described by metes and bounds, and a second tract of 160 acres of land in Houston County, which they described by metes and bounds. It is true that appellant filed a plea of not guilty, but he stated in open court that he made no contention that he had any title whatsoever to the 160 acre tract described in appellees’ petition, and that the only part of the 180 acre tract in controversy which he claimed was 44 acres off of the south end of the 180 acre tract, and he described it by metes and bounds.

It is true that appellees did not show a connected title from the sovereignty of the soil down to them, nor did they show a patent to the J. M. Love Survey. They introduced in evidence a general warranty deed dated November 15, 1913, which deed conveyed from R. C. Stokes to W. R. Turner the 180 acres described as tract No. I, in the appellees’ original petition, which deed is duly recorded in the deed records of Houston County, Texas. The appellant tendered in evidence a general warranty deed from R. C. Stokes to E. B. Stokes, dated September 6, 1913, duly recorded in the deed records of Houston County, which conveyed the south 140 acres out of the J. M. Love Survey. From the evidence tendered in this record it shows that the deed from R. C. Stokes to W. R. Turner, of November 15, 1913, included the 44 acres of land he had previously conveyed to E. B. Stokes on the preceding 6th day of September 1913. Insofar as the record here goes, the title to this 44 acres is outstanding in E. B. Stokes. During oral argument the Court made inquiry of appellees’ counsel on what basis they claimed title to this property, and as we understood appellees’ counsel, it was on two grounds: (1) That they made out a prima facie case; and (2) that there was a disclaimer by the heirs of E. B. Stokes, deceased. The evidence of purported disclaimer relied upon, if it be considered such, was oral and made by the witness, Raymond Cornelius, who was the son-in-law of E. B. Stokes, but who had no title to the property whatsoever. It is obvious, therefore, that appellees’ position of disclaimer is to no avail.

Going back to appellees’ point 1, did they make out a prima facie case under our Texas decisions? We think the answer is “Yes”. We think there is ample evidence that appellees took over the possession of the 180 acre tract immediately after the grantee obtained his deed thereto, and that appellees never abandoned their possession. In House v. Reavis, 89 Tex. 626, 35 S.W. 1063, the factual situation is very similar ta the factual situation here, in that in the House case the Court found that the plaintiffs in the suit were in the actual possession of the land in controversy under a claim of title, and that the defendants, by the acts of one of them, entered into and took the possession from plaintiffs without their consent and held the same until the trial without any title in themselves. That is substantially the situation that we are dealing with here, because it is without dispute that appellees went into possession when they acquired the title to the property, and that they are and were holding under a claim of title. The Supreme Court in discussing the question said:

“Such possession as was shown to have existed in the plaintiffs of the property in controversy is prima facie evidence of title in them, and was sufficient to entitle them to recover, against the defendants, unless the evidence was of such a character as to defeat their right, (citing cases). On behalf of the defendants it is contended, and the trial court and court of civil appeals held, that because plaintiffs’ title did not connect with the patentee, A. Jacobs, the evidence showed an outstanding title in A. Jacobs, or her heirs, which was sufficient to defeat the plaintiffs’ right to recover the land. It is not necessary, in this case, for us to determine whether or not one who takes forcible possession of real estate by ousting the actual possessor can defeat the right of the person ousted to recover the possession of the property by showing that the title is in some third person. There are strong reasons and good authority to sustain the position that he could not, if it were necessary to assert it in this case, (citing cases). Granting for sake of the argument, that such a defense might be made by one who had thus wrongfully and forcibly acquired possession of the property, the question still arises, what must be the character of the proof made as to such outstanding title in order to defeat the right of the prior possessor? The plaintiffs in this case stood before the court with the presumption in their favor, as a matter of law, that they had the title to the land in fee simple. This constituted a prima facie case, and entitled them to recover.”

It seems to us that the foregoing is applicable to the undisputed factual situation here. Counsel for appellant stated in open court that they stood before the Court as a naked trespasser and without any claim or right to title. In Humble Oil & Refining Co., v. Wilcoxon, Tex.Civ.App., 70 S.W.2d 218, writ refused, (situation similar to the one before us) we find this statement:

“In trespass to try title, the rule is well established that plaintiff must recover, if at all, upon the strength of his own, and not upon the weakness of the defendant’s title, from which it follows that defendant is entitled to judgment when the facts fail to show prima facie title in plaintiff. The different modes in which plaintiff may establish a prima facie case are stated in Keys v. Mason, 44 Tex. 140, and Watkins v. Smith, 91 Tex. 589, 45 S.W. 560. One of which modes is by showing that plaintiff, or one whose title he holds, has had actual possession of the land prior in point of time to that of the defendant, (citing a long list of cases). In its legal effect, proof of prior possession prima facie establishes in plaintiff a fee-simple title, which necessarily includes the presumption that the state has granted title to the land to some one, and that the plaintiff has acquired the title of such third person, (citing House v. Reavis, supra). So, in the present case, plaintiffs’ proof of prior possession was prima facie evidence of title in them which included the presumption that plaintiffs had acquired and held the title shown to have been transferred out of the state and mesne conveyances into such third person, George W. Brown. This presumption of ownership is but a rule of evidence and not of property, and may therefore be rebutted, as by evidence in fact showing that plaintiff does not lawfully h'old the title of such third person. (citing many cases). But the presumption of ownership arising from plaintiffs’ prior possession is not, as cqntended by defendants, overcome by evidence merely showing a regular chain of title out of the state and into a third person. The evidence must go further and rebut the presumption that plaintiffs have lawfully acquired and hold the title of such third person.” (citing House v. Reavis, supra; Watkins v. Smith, supra).

We think the foregoing rule is applicable to the factual situation here before us. It is. our view that appellees, under all the facts and circumstances have carried their burden showing that they have a prima facie title to the 180 acre tract. Appellant stands before the Court under his own admissions that he had no title and that he was a naked trespasser, and he made no attempt to rebut appellees’ prima facie title under the rule above stated. Our Supreme Court has not seen fit to change the rule it announced in House v. Reavis, supra; nor the rule in Humble Oil Company v. Wilcoxon, supra. See also Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410 and Payton v. Loustalott, 53 S.W.2d 1012, point 2, (Tex.Com.App.).

Being of the view that appellees by their proof of prior possession of the land in question established a prima facie fee simple title in them, and that the appellant failed to rebut the same, that the Court correctly entered judgment for appellees and the judgment of the trial court is affirmed.


author: RUARK, Presiding Judge.

text:
    CITY OF POPLAR BLUFF, Missouri, a municipal corporation, Plaintiff-Respondent, v. POPLAR BLUFF LOAN AND BUILDING ASSOCIATION, a savings and loan association, Defendant-Appellant.
    No. 8185.
    Springfield Court of Appeals. Missouri.
    July 17, 1963.
    John A. Casey, Poplar Bluff, for'defendant-appellant.
    Ted M. Henson, Jr., Poplar Bluff, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment in favor of third-class City of Poplar Bluff against the appellant, Poplar Bluff Loan and Building Association, in the amount of $600 on account of unpaid city license taxes for the years 1958, 1959, and 1960.

No constitutional question has been raised, but our jurisdiction appears to be somewhat cloudy because the case involves the construction of Section 148.520 in relation to Section 94.110. (Unless otherwise indicated, all statutory references are to RSMo 1959, V.A.M.S.) But since we are a court of general jurisdiction, and the jurisdiction of the Supreme Court does not seem clear, we will proceed.

The city’s ordinance provides for the levy and collection of an occupation license tax as follows:

“LOAN COMPANIES. Upon every loan company, the sum of Two Hundred Dollars ($200.00) per year. A loan company, or loan agent, within the meaning of this Section, is any person, firm or corporation who shall lend or offer to lend or negotiate the loan of any money belonging to himself or another and who shall advertise money to lend, or one who purchases negotiable instruments and collects the same for interest.”

The appellant is a savings and loan association organized and proceeding under the provisions of Chapter 369, with its offices located within the city.

The city has only such power to tax as is plainly and unmistakably delegated to it by the state. Such power is subject to whatever limitations which may be placed upon it, and any doubts concerning such power will be resolved against the city. City claims such power under the terms of Section 94.110, wherein cities of the third class are authorized to levy and collect a license tax on “loan companies,” without further definition. The appellant association contends: (a) it is not a “loan company” within purview of the ordinance; and (b) the license tax claimed is precluded by the provisions of Section 148.520 (as amended Laws 1959, H.B. 136).

Section 368.010 defines a loan and investment company, but such definition is limited to a corporation formed under that chapter which concerns corporations engaged in business in an entirely different manner from that of appellant. Chapter 369, under which appellant is organized and acts, covers the whole spectrum concerning the organization and regulation of savings and loan associations under the supervision of the state supervisor. Twenty-five or more individuals may organize by complying with the procedures and requirements of the chapter and by paying an “incorporation fee.” Section 148.470, under the chapter dealing with taxation of financial institutions, defines an “association,” which definition we think includes the appellant savings and loan association. Such associations are quasi-public financial institutions for which the state provides special supervisory and regulatory laws which are complete in themselves and are therefore exclusive (State ex rel. Wagner v. Farm & Home Savings & Loan Ass’n of Missouri, 338 Mo. 313, 90 S.W.2d 93, 96), and the public policy is to put such organizations upon a different footing from that of regular business corporations. State ex rel. Equality Sav. & Bldg. Ass’n v. Brown, 334 Mo. 781, 68 S.W.2d 55, 59.

Section 148.480 levies an annual tax of two per cent on the taxable portion of the annual dividend yield of the investment accounts in such organizations. The association is required to pay the tax and may absorb it or charge it back to the accounts. Section 148.520 provides that the annual tax so levied shall be exclusive and in lieu of all other taxes against or upon the associations, their property, capital or income, except ad valorem taxes upon real and tangible personal property and social security, unemployment compensation and franchise taxes.

Our first question: Is the city’s license fee a tax? We think so. The charge exacted for pursuit of the occupation in which appellant is engaged is not a fee exacted to aid in police regulation. Section 94.110 does not delegate to the city the power to regulate savings and loan associations. State on Inf. Bloebaum v. Broeker, 222 Mo.App. 831, 11 S.W.2d 81(4). The state has reserved such power unto itself. The fee charged is simply an occupation tax for the purpose of obtaining revenue, which we think is an excise tax. We conclude that the license fee in question falls within the “in lieu” exclusion of “all other taxes of whatsoever nature against or upon associations,” as stated in Section 148.520.

But can the license fee be said to be a form of “franchise tax” which is an exception to the exclusion ? There are many definitions of the words “franchise” and “franchise taxes.” See 17 Words and Phrases, pp. 689, 710, 747. The common definition of a franchise is that it is a special privilege conferred by the sovereign upon a citizen or citizens, which privilege is not common to the citizens generally. Generally, a franchise tax is said to be a tax upon the privilege of existing or the privilege of doing certain things.

The power to grant franchises is in some instances delegated by the sovereign state to a municipality. In such instances, the city acts as agent for the state. The franchise often involves the use of public property; and, in such a case, the city tax upon the franchise holder can become what is really a rental charge. City of St. Louis v. Laclede Power & Light Co., 347 Mo. 1066, 152 S.W.2d 23, 25. The franchise can, of itself, be “property” (37 C.J.S. Franchises § 8, p. 151) and be taxable by the city if the statute authorizes such. 64 C.J.S. Municipal Corporations § 2000c, pp. 693, 694. But, in respect to savings and loan associations, we think there is nothing in the statutes to indicate that the legislature intended that the licensing of the pursuit of this occupation by a city should rise to the dignity of a franchise. It is sometimes said that a city license fee is a tax upon the privilege of doing business under the protection of the city ordinances. But we are of the opinion that the occupation license fee on a business which does not use public facilities and which the city has no power to regulate is in reality a tax, and the so-called “privilege” which is common to anyone who can qualify as being within that class of persons is not such a special privilege as to constitute a city franchise. The requirement of payment as a condition of doing business is simply a means of collecting the tax. The legislature has reserved to the state the power to grant the privilege of existing and doing business as a savings and loan association and the power to regulate such business. The city has no power to interfere with it. The occupation license fee with which appellant is charged is not a permissible “franchise tax” so as to exempt it from the exclusion in Section 148.-520.

Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and where the general act is later, the special will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication.

In City of St. Charles v. Inter-Insurance Exchange for Automobile Club of Missouri, supra, Mo.App., 108 S.W.2d 626, Section 5976 (1929) provided for payment of certain fees to the state supervisor “which shall be in lieu of all license fees and taxes of whatever character in this state.” Judge Bennick of the St. Louis Court of Appeals held this rendered the city license tax inoperative. This decision was confirmed in City of Cape Girardeau v. Comer, Mo.App., 119 S.W.2d 1005, which held, however, the “in lieu” provision did not debar a license fee charged against the agents of the company. The City of St. Charles case was followed by the Kansas City Court of Appeals in City of Nevada v. Bastow, supra, Mo.App., 328 S.W.2d 45, which held the city license tax against a motor carrier was rendered invalid by a provision in the statute (Section 390.126) that no other or additional licenses on motor carriers other than those provided in Sections 390.011 to 390.176 shall be required.

We are of the opinion that the license tax authorized and charged against loan companies is not applicable to savings and loan associations organized under Chapter 369. The judgment therefore is reversed.

STONE and HOGAN, JJ., concur.

      . See Thunder Oil Co. v. City of Sunset Hills, Mo., 349 S.W.2d 82, 85; City of Berger v. La Boube, Mo.App., 252 S.W. 2d 659, Mo., 260 S.W.2d 527; State ex rel. Divine v. Collier, 301 Mo. 72, 256 S.W. 455; City of Independence v. Cleveland, 167 Mo. 384, 67 S.W. 216; City of St. Joseph v. Metropolitan Life Ins. Co., 183 Mo. 1, 81 S.W. 1080, 110 Mo.App. 124, 84 S.W. 97; City of Richmond v. Creel, 253 Mo. 256, 161 S.W. 794 (4); Fischbach Brewing Co. v. City of St. Louis, 337 Mo. 1044, 87 S.W.2d 648, 651; City of Hannibal, to Use of Bassen, v. Bowman, 167 Mo. 535, 67 S.W. 214; City of St. Charles v. Inter-Insurance Exchange for Automobile Club of Missouri, Mo.App., 108 S.W.2d 626; City of Nevada v. Bastow, Mo.App., 328 S.W.2d 45; Little River Drainage Dist. v. Jones, 234 Mo.App. 816, 136 S.W.2d 440.

      . 64 C.J.S. Municipal Corporations § 1978, p. 644; Moots v. City of Trenton, 358 Mo. 273, 214 S.W.2d 31; Carter Carburetor Corp. v. City of St. Louis, 356 Mo. 646, 203 S.W.2d 438; City of West Plains v. Noland, Mo.App., 112 S.W.2d 79.

      . Holland Furnace Co. v. City of Chaffee, Mo.App., 279 S.W.2d 63, 68; Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95, 101.

      . We note, in addition to Section 148.520 in reference to savings and loan associations, Section 148.521, Laws 1961, p. 636, a similar provision as to farmers’ cooperative credit associations, and Section 148.290, Laws 1961, p. 636, a similar provision as to credit unions.

      . 29 Words and Phrases, “Occupation Tax,” p. 179; Moots v. City of Trenton, supra, 358 Mo. 273, 214 S.W.2d 31; State v. Bengsch, 170 Mo. 81, 70 S.W. 710; City of St. Louis v. Spiegel, 75 Mo. 145.

      . State ex rel. Missouri Portland Cement Co. v. Smith, 338 Mo. 409, 90 S.W.2d 405, 407; General Am. Life Ins. Co. v. Bates, 363 Mo. 143, 249 S.W.2d 458.

      . Por discussion of whether a city license fee imposed on savings and loan association is a franchise tax see City of Griffin v. First Federal Sav. & Loan Ass’n of Griffin, 80 Ga.App. 217, 55 S.E. 2d 771.

      . 37 C.J.S. Francises § 1, p. 142; 23 Am. Jur., Franchises, § 2, p. 714 et seq.; State ex rel. Hagerman v. St. Louis & E. St. L. Electric R. Co., 279 Mo. 616, 216 S.W. 763.

      . Werner Mach. Co. v. Director of Division of Taxation, Dept. of Treasury, 17 N.J. 121, 110 A.2d 89(3); West Pub. Co. v. McColgan, 27 Cal.2d 705, 166 P.2d 861; State ex rel. State Corp. Commission v. Old Abe Co., 43 N.M. 367, 94 P.2d 105, 124 A.L.R. 1085; Home Ins. Co. of New York v. People of the State of New York, 134 U.S. 594, 10 S.Ct. 593, 33 L.Ed. 1025; see State v. Freehold Inv. Co., 305 Mo. 88, 264 S.W. 702.

      . City of Camdenton v. Sho-Me Power Corp., Mo., 237 S.W.2d 94; State ex inf. Shartel, ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394, 89 A.L.R. 607; see 23 Am.Jur., Franchises, §§ 10, 11, pp. 722, 723.

      . American Mfg. Co. v. St. Louis, 270 Mo. 40, 192 S.W. 402; Ex parte Andrews, 324 Mo. 254, 23 S.W.2d 95; Frank v. Wabash R. Co., Mo., 295 S.W.2d 16, 20.

      . State ex rel. Equality Sav. & Bldg. Ass’n v. Brown, supra, 334 Mo. 781, 68 S.W.2d 55, 59, and cases there cited; State ex rel. R. Newton McDowell, Inc. v. Smith, 334 Mo. 653, 67 S.W.2d 50; Veal v. City of St. Louis, 365 Mo. 836, 289 S.W.2d 7; see City of Nevada v. Bastow, supra, Mo.App., 328 S.W.2d 45, 48-49.


text:
    Marion BUNCH, Plaintiff-Respondent, v. Liman Odell CRADER, Defendant-Appellant.
    No. 8205.
    Springfield Court of Appeals. Missouri.
    July 19, 1963.

      Green & Green, H. D. Green, West Plains, for defendant-appellant.
    Esco V. Kell, West Plains, for plaintiff-respondent.
   RUARK, Presiding Judge.

The occasion: a collision between plaintiff’s pickup truck and defendant’s automobile on the curve of a snowy country road. The appeal: from a judgment on general verdict for $1800 in favor of the plaintiff.

Appellant’s first complaint is in reference to the voir dire examination. Prior to inquiry counsel exchanged the customary information as to liability insurers. Defendant’s insurer was the M. F. A. Mutual Insurance Company. Upon first inquiry several members of the jury panel raised their hands to indicate they were policyholders in the M. F. A. Mutual Insurance Company. Then the following:

Mr. Kell: “Would the fact that you are policyholders in the M. F. A. Insur-anee Company cause you to be biased and prejudiced and prevent you from rendering a fair and — ”
Mr. Green: “If the Court please, we object to that question and ask that it be stricken because it is highly prejudicial.”

This objection was renewed outside the presence of the jury and overruled. However, plaintiff’s counsel did not further pursue that inquiry. His next question was:

“Are any of you or any members of your family employees of the M. F. A. Insurance Company ? ”
Juror Felty: “I am an agent.”
Mr. Kell: “Do you know anything about this accident in any way ? ”
Juror Felty: “No.”
Mr. Kell: “You are one of the adjustors?”
Mr. Green: “We object to that and ask the jury to disregard it.”
The Court: “Sustained. The jury is instructed to disregard that question; it is a Court matter, not one for you folks, and I ask you to disregard that. There will not be a mistrial declared. I ask you to carefully weigh your questions before you ask them, Mr. Kell.”
Mr. Kell: “Does Mr. Carr work out of your office, Mr. Felty? ”
Juror Felty: “Well, he is in and out. His office is next to me.”
Mr. Kell: “And has he ever discussed this case in any way ? ”
Juror Felty: “No.”
Mr. Kell: “ — told you any facts about it?”
Mr. Green: “Your Honor, — ”
The Court: “He said he didn’t.”
Mr. Green: “ — again, I ask that the jury be discharged because these remarks are highly prejudicial to the rights of the defendant.”
The Court: “Overruled.”

Appellant’s counsel contends that the action of the trial court was prejudicial in permitting too much emphasis on “insurance.” With the frankness and forthrightness which we have learned to expect from him, he confesses that he has found no appellate decision which sustains his theory. But he states that the practice of the appellate courts in condoning acts of counsel “in revealing insurance coverage through * * * innuendo,” on voir dire is “fallacious and ridiculous” (and hypocritical?), and he states that he makes this contention “mid glorious hopes and dreadful fears.”

It is so well settled as not to require statement of supporting authority that a litigant has a right to know which members of the jury panel are, or might be, interested in the result or outcome of his lawsuit; and a plaintiff has the right to ascertain whether any of the jury members are connected with an insurance company which has an interest in the litigation. We have come a long way since the condition of affairs mentioned in Chambers v. Kennedy, Mo., 274 S.W. 726, to the effect that it was only a remote possibility that a jury panel would contain persons interested in an insurance company. We think that, since The Motor Vehicle Safety Responsibility Law, it is common knowledge that a great majority of the drivers of automobiles carry liability insurance, and therefore the odds are that the average juror is so insured. It is also a fact, which is at least subject to argument, that the average insured juror realizes that claims against liability carriers furnish the premium basis, and that the greater the losses the higher the premiums.

Nevertheless, it is improper to stress or emphasize insurance with the view of conveying to the jury the idea that an insurer, not the defendant, will be the one to pay the judgment. We think, absent special circumstances, the better practice is to ascertain whether any panel member is interested by asking one general question. If there be no affirmative answer to that question, the matter should ordinarily rest there; but, if there be affirmative answers, counsel might possibly need to make further inquiry in order to ascertain the reality or extent of the interest. The inquiry must be in good faith and must be one which develops in a natural manner and without undue emphasis.

The trial judge has a sound discretion to exercise in control of the voir dire. It is only where there has been a manifest abuse of that discretion and where there is probability of injury to the defendant that the appellate courts will interfere.

In this case it appears to us that there is nothing to indicate bad faith on the part of counsel in making inquiry. It appears also that the learned trial judge kept a tight rein on the conduct of the voir dire and certainly did not abuse his discretion. As to inquiry concerning Mr. Carr (the only one upon which a motion to discharge was based), the record does not show just who he was. He was not called as a witness; but we are of the opinion that the record does not show any probability of prejudice by reason of the inquiry.

The collision occurred on January 27, 1961, in the forenoon at a curve in what is known as the Old Horton Road. This is an unmarked, graded, gravel country road which runs through the timber. The immediate area is “pretty well level.” The road runs generally east and west, but there is a “tolerable sharp curve.” Presumably a driver going east would approach or enter this curve while traveling in a northeasterly direction. One traveling west would approach or enter the curve in a northwesterly direction. The apex or “sharp” part of the curve is to the north. At this point a woods road comes in from the north and joins the Horton Road. The evidence most favorable to the verdict and judgment is that the width of the Horton Road at the apex of this curve is twenty-one feet. The width of the entrance to the woods road coming in at the north apex of the curve is eighteen feet. There is no ditch on the north side of the Horton Road. On the south, or inside, of the curve is a ditch or bank about a foot high. “You can drive right up against the shoulder of the road.” From the description given by the witnesses and from the exhibits, we believe this ditch, bank, or “raised shoulder” can best be described as the type which could have been cut by a road grader blade. A fence was some twelve to thirteen feet south of this ditch or bank. In the space between, the trees had been cut out. Some sprouts or brush had grown up. Just how many and how thick, as an obstruction to sight, was a matter of dispute. There is no very definite evidence as to sight distance between two vehicles approaching or entering this curve. The only evidence we have as to distance in feet is the defendant’s statement that, as he came around the curve, he saw plaintiff when the vehicles were “about forty or sixty feet, possibly a little farther” apart. Defendant said, “I was traveling, I’d estimate, about twenty miles an hour.” There is no reason why plaintiff could not have seen defendant at the same time.

It had snowed the previous day, or a day or so before the accident, and there was snow, from two to four inches deep, on the road. As is customary on country roads, a single set of tire tracks or “ruts” had been made along this road. At the curve these tracks or ruts were on the south or inside of the curve. Plaintiff, in his pickup, coming from the west, and defendant, in his automobile coming from the east, were apparently both following the beaten out tracks or ruts. Plaintiff said, “I wasn’t driving too fast. I’d just passed Ray Woodring sitting by the side of the road parked.” Plaintiff’s truck and defendant’s car met almost head-on on the inside of the curve on the south side of the road approximately opposite from the entrance to the woods road. Plaintiff’s truck was approximately two feet from the ditch or bank on the inside of the curve. Defendant’s left fender struck about the center of plaintiff’s pickup. Witnesses for plaintiff traced his skidmarks extending backward from his vehicle a distance from “the length of the pickup” to “two or three times the length of his pickup.” Skid-marks of the defendant’s car “didn’t quite extend out from under the back end of his car” or “about three foot of skid mark in the snow.”

Plaintiff Bunch testified that he was driving on his south side of the road and that the road was wide enough for three pickups to drive on. He said he was watching the road ahead; that he had no warning that defendant’s car was on the curve until he saw it. Pie guessed he could see defendant as soon as defendant could see him. He put on his brakes immediately and the collision “happened mighten-nigh instantly; didn’t more than see him until, it looked like, he struck me right near the center.” He didn’t have time to sound his horn. Defendant testified that there was a single set of tracks and the rest of the road was crusted ice and snow “that made it almost impossible to travel.” On the other hand, plaintiff’s witness testified that the ruts or tracks were slick, but, as to the rest of the road, “I don’t want to say it was slick; there was gravel underneath it.” It does appear that other vehicles which came afterwards, and while the two vehicles were sitting where they had collided, did drive around on the north side of the road.

Plaintiff’s verdict-directing instruction submitted four grounds of negligence in the disjunctive, viz., (1) failure to keep a lookout, (2) failure to stop, swerve, or slacken speed, (3) driving on the south half or wrong side of the road, (4) failure to give signal or warning.

Appellant’s Point II is that the court erred in giving such instruction, not because of improper hypothesis, but because all of the grounds of negligence were not supported by the evidence. The only cases cited to support this proposition are those holding that where the grounds of negligence are submitted in the disjunctive there must be evidence to support each such ground. With that statement we agree. Appellant’s Point III complains of error in refusing defendant’s verdict-directing instruction because the plaintiff had committed every act charged against defendant and, if such acts were negligence, then plaintiff was also contribu-torily negligent. No cases are cited to sustain this contention. Appellant’s Point IV is based on the contention that there was only one traveled portion of the highway, i. e., the one set of tracks in the snow, and that under this state of facts defendant was not negligent in traveling in the tracks. We will consider these contentions together.

As to appellant’s theory that defendant was not negligent in traveling in the tire ruts on the south side of the road because the rest of it was hazardous: We are cognizant of the rule that, in determining the rightful place of the motorist upon the road, that part of it which is passable and available for traffic is, depending upon the circumstances of the particular case, to be considered as the road. But we are not convinced that the north side of the road was, as a matter of law, impassable or unavailable for traffic. The defendant offered and the court gave on his behalf an instruction (No. A) hypothesizing and submitting his contention that the road, except for the “rut traveled portion” was hazardous and unsafe. Whether he was entitled tor such instruction it is unnecessary to decide. The fact remains that he submitted this contention to the jury and the jury was evidently not impressed by it. Taken in its most favorable aspect toward the defendant, it was a jury question. We cannot say as a matter of fact or law that the jury was wrong.

As to the contention that plaintiff could have done anything the defendant could have done to avoid the collision and, therefore, if defendant was negligent, plaintiff was guilty of contributory negligence, the parties did not stand on equal footing. Defendant was on the wrong side of the road and was therefore guilty of negligence. Biggs v. Crosswhite, 240 Mo.App. 1171, 225 S.W.2d 514; Benoist v. Driveaway Co. of Missouri, Mo.App., 122 S.W.2d 86. Plaintiff was on his own right side of the road. If it be contended he should have yielded, we have the proposition that one on his own right side has the right to assume that an approaching motorist will give way until the circumstances indicate this will not be done. Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Nelms v. Bright, Mo., 299 S.W.2d 483; McGuire v. Steel Transp. Co., 359 Mo. 1179, 225 S.W.2d 699. Even had the plaintiff had time to yield more to his right, his room was limited to two feet since his wheels were within two feet of the bank on the south. Since the cars collided almost head-on, the additional two feet would not have supplied the distance necessary to avoid the collision.

The only disjunctive in the submission which gives us concern is that which charges defendant with negligence in failing to warn. It is apparent that, after the drivers of the vehicles came in sight of each other, it was too late for a warning to have any effect. Plaintiff said he didn’t have time to warn and that the collision happened mighten-nigh instantaneously. The failure to warn after the vehicles got within sight distance could not have been a producing or contributing cause, one having a causal connection with the collision. See Steigleder v. Lonsdale, Mo.App., 253 S.W. 487. There remains the question whether defendant had a duty to warn of his approach as he entered or before he entered the curve. We conclude he did have that duty.

Section 304.016(4), R.S.Mo., V.A.M.S., provides that no vehicle shall at any time be driven on the left side of the road upon a curve where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction. The statutes pertaining to rules of the road do not repeal the common law of negligence. They only set minimal standards of required care. Lafferty v. Wattle, Mo.App., 349 S.W.2d 519, 527. The plaintiff had the right to assume, until he had cause to believe otherwise, that any approacher would be driving on his own right side of the road. Moore v. Fitzpatrick, Mo.App., 31 S.W.2d 590.

The facts most favorable toward the plaintiff are that the defendant was approaching to or upon a curve in the tracks or ruts on his left or wrong side of the road, whereas it was his duty to keep to the outside. Warren v. Giudici, 330 Mo. 483, 50 S.W.2d 634. He was thereby creating a hazard to approaching motorists. He was required to anticipate that another vehicle might approach traveling in the same tracks on its rightful side of the road, and that his own automobile would, to say the least, be a hazard. Blashfield, Cyclopedia of Automobile Law and Practice, § 905; Cox v. Reynolds, Mo.App., 18 S.W.2d 575. He was required to use care commensurate with the circumstances. Blashfield, Cyclopedia of Automobile Law and Practice, § 1025; Phillips v. Stockman, Mo.App., 351 S.W.2d 464; Politte Funeral Home v. Miller, Mo.App., 301 S.W.2d 839. Generally, a person has the duty to warn approaching motorists of a hazard which he has created on the traveled portion of the highway. Had the defendant sounded his horn as he so approached, to or upon the curve, the plaintiff might reasonably have had the opportunity to slow or stop his pickup, or possibly so maneuver his vehicle, as to avoid the collision or at least minimize its force. Perforce, it was a jury question. Peck v. W. F. Williamson Advertising Service in St. Louis, Mo.App., 68 S.W.2d 847. We conclude there was no error in the submission.

Appellant’s final contention is that the verdict,

“WE, the jury find the issues for the plaintiff, Marion Bunch, and against the defendant, and assess his damages in the sum of $1800.00. And, we further find the issues for the plaintiff and against the defendant on defendant’s Counter-claim.”,

was in violation of Rule 71.06, V.A.M.R., since plaintiff had submitted claim on both personal injuries and damage to his motor vehicle. Appellant did not object to the form of verdict when or before it was given to the jury, nor did he object to the verdict after it was returned until he filed motion for new trial four days later.

The giving of a verdict form to the jury is in effect, and is tantamount to, an instruction. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 320. And, unless the verdict is fatally defective as being actually no verdict, the complaining party must make timely and appropriate objections in order to give the trial court opportunity to correct the infirmity before the jury is released.

There is no contention the verdict was excessive. In this instance plaintiff proved the cost of repair to his truck was “$328.00 and something.” We do not detail plaintiff’s injuries and subsequent resulting disability, but it plainly appears that the sum of $1800 was well within the amount which could have been allowed for the personal injuries alone. It would appear that the error was a defect in form rather than in substance. Mock v. Leggett, Mo.App., 344 S.W.2d 141, 142; Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668, 676. Rule 83.13, V.A.M.R., provides that there shall he no reversal except for error materially affecting the merits. We believe that under the circumstances of this case it cannot be said that defendant has suffered material prejudice because of the form of the verdict.

The judgment is affirmed.

STONE and HOGAN, JJ., concur.

       Gooch v. Avsco, Inc., Mo., 340 S.W.2d 665, 667; Dooley v. Dooley, Mo.App., 290 S.W.2d 856; May v. Hexter, Mo.App., 226 S.W.2d 383; Willis v. Buchanan County Quarries Co., 218 Mo.App. 698, 268 S.W. 102; and cases post.

      . Murphy v. Graves, Mo., 204 S.W.2d 29; Rodenberg v. Nickels, Mo.App., 357 S.W.2d 551, 555; Stewart v. Brune, 8th Cir., 179 F. 350; see Gray v. Williams, Mo.App., 289 S.W.2d 463, 467.

      . Grimm v. Gargis, Mo., 303 S.W.2d 43, 74 A.L.R.2d 599; McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361; Murphy v. Graves, supra, Mo., 294 S.W.2d 29; Becker v. Koester, Mo.App., 295 S.W. 818.

      . Haley v. Edwards, Mo., 276 S.W.2d 153; May v. Hexter, supra, Mo.App., 226 S.W.2d 383; Barger v. Green, Mo.App., 255 S.W.2d 127; Gray v. Williams, supra, Mo.App., 289 S.W.2d 463; Johnston v. Owings, Mo.App., 254 S.W.2d 993; Schraedel v. St. Louis Public Service Co., Mo.App., 248 S.W.2d 25.

      . In the Ozarks the dead leaves of many of the oaks hang on through the winter.

      . Gregorc v. Londoff Cocktail Lounge, Inc., Mo., 314 S.W.2d 704(2); Green v. Guynes, Mo., 235 S.W.2d 298(15); Lyons v. Taylor, Mo.App., 333 S.W.2d 346, 352.

      . Justice v. Malin, Mo., 836 S.W.2d 77; Foster v. Sacco, Mo.App., 343 S.W.2d 171; Green v. Guynes, supra, Mo., 235 S.W.2d 298; Harmon v. Fowler Packing Co., 129 Mo.App. 715, 108 S.W. 610; Brown v. Southern Paper Products Co., 222 N.C. 626, 24 S.E.2d 334; Carlson v. Hanson, 166 Neb. 96, 88 N.W.2d 140.

      . Blashfield, Cyclopedia of Automobile Law and Practice § 701; Eastman v. Brackman, Mo., 347 S.W.2d 126; Fullington v. Southeastern Motor Truck Lines, Mo.App., 254 S.W.2d 246; Miller v. Wilson, Mo.App., 288 S.W. 997; see Lowry v. Mohn, Mo., 195 S.W.2d 652, 656; Young v. Bacon, Mo.App., 183 S.W. 1079.

      . See Thorne v. Thorne, Mo., 850 S.W.2d 754.

      . Cable v. Metropolitan Life Ins. Co., 233 Mo.App. 1093, 128 S.W.2d 1123, 1127; Brown v. Thomas, Mo.App., 316 S.W.2d 234, 237; Lincoln v. Railway Exp. Agency, Inc., Mo., 359 S.W.2d 759(15); Edmisten v. Dousette, Mo.App., 334 S.W.2d 746(7); Baker v. Atkins, Mo.App., 258 S.W.2d 16, 23; see Dye v. Loewer, Mo.App., 94 S.W.2d 948(12).