author: PHILLIPS, Justice. HUGHES, Justice

text:
    LEGAL SECURITY LIFE INSURANCE COMPANY, Appellant, v. H. Earl WARD, Appellee.
    No. 11128.
    Court of Civil Appeals of Texas. Austin.
    Dec. 11, 1963.

      Douglas E. Bergman, John W. Hicks, Jr., Dallas, for appellant.
    Swaim & Swaim, Eden, McCollum & Townsend, Brady, for appellee,
   PHILLIPS, Justice.

Plaintiff, H. Earl Ward, brought suit against the defendant, Legal Security Life Insurance Company, to declare certain hospitalization insurance policies issued by the defendant to the plaintiff to be in full force and effect. The parties will be designated in this opinion as they were in the Trial Court.

Both plaintiff and defendant filed motions for summary judgment. The Trial Court sustained plaintiff’s motion and entered judgment thereon.

We reverse the judgment of the Trial Court and render judgment for the defendant.

The facts of the case are as follows: In September of 1960, plaintiff made application to defendant for a hospitalization policy and a monthly cash hospital indemnity policy. Defendant received plaintiff’s application for the policies on the last day of September, 1960, and on November 5, 1960 issued the plaintiff the policies in question. To each of these policies the defendant had attached a rider excluding arthritis, sciatica, neuritis, lumbago or rheumatism in any form.

After the policies were issued, the plaintiff wrote the defendant the following letter:

“ Melvin, Texas Nov. 7, 1960
Legal Security Life Insurance Co Dear Sir
In regard to your agent Mr Bainey Hines I paid for a Insurance policy. I gave a check for $120.69.
I received a card from the Company honoring my purchase but I was to inspect the policy if it was what I told them I would accept it. I have waited longer enough to receive the policy but have not.
I want my money or the policy if it is what Mr Hines said it was. If the policy has not been written just mail my money for I think I have waited long enough.
I gave the check 9-28-60. You cash it October 14 I am a busy man do not have time to wait any longer
Yours truly
H. Earl Ward”

Subsequently the defendant delivered the policies to the plaintiff in the middle of November, 1960 with the riders mentioned above attached thereto.

On November 21, 1960, the plaintiff, through his attorneys, wrote the defendant stating that the riders were not authorized by the plaintiff when he purchased the policies, that he did not accept the policies and demanded the return of his premium. The letter is as follows:

“ _ November 21,1960
Legal Security Life Insurance Co.
4516 McKinney Ave.
Dallas 5, Texas
•Gentlemen:
Re: Policy No. 8-21477, together with rider thereto attached and Policy No. H-21478, together with riders thereto attached. Said policies being dated November 15, 1960, and issued to H. Earl Ward, P. O. Box 845, Melvin, Texas
Mr. H. Earl Ward has consulted us with reference to the above numbered and dated policies, and requested that the same be cancelled, since each of the said policies has an additional rider which Mr. Ward did not authorize when he purchased these policies. The riders not authorized are the riders ■entirely typed and appearing with the application signed by Mr. Ward on •each policy. Mr. Ward has previously written you that he did not desire to keep these policies; and Mr. Ward paid you on September 28, 1960, the sum of $120.62 by check and which check has been cashed by you people. This check having been given on the Brady National Bank of Brady, Texas.
I am returning herewith these policies with unconditional requirement that these policies be accepted by you and that you refund Mr. Ward’s money by return mail.
Mr. Ward applied for these policies in September, and they were not issued until November 15th, which was entifely (sic) too much delay in issuing the same, and further Mr. Ward was supposed to receive a $2000.00 life insurance policy which was not sent; and for these reasons and those further •of the riders thereto attached, as herein explained, which were not authorized, Mr. Ward does additionally return these policies for cancellation and does insist that they be accepted and that his money paid you, which is the sum of $120.62, be refunded in full at once.
Thanking you in this connection, we are,
Very truly yours,
SWAIM & SWAIM
By /s/ R. H. Swaim Attorneys for H. Earl Ward”

The abovementioned letter served as a letter of transmittal whereby the policies in question were returned to the defendant.

On December 5, 1960, the defendant wrote the plaintiff’s attorneys, explaining the reason for the riders and requested that plaintiff reconsider his action. This letter is as follows:

“LEGAL SECURITY LIFE INSURANCE COMPANY Home Office, 4615 McKinney,
Dallas, 5, Texas.
December 5, 1960.
Swaim & Swaim, Attorneys Eden, Texas.
RE: H. Earl Ward, Policies H-21477-8 & pending Life Application L-5209' Gentlemen:
We are in receipt of your letter of November 21, 1960 regarding the above-named Insured’s request for refund of premium and cancellation of the above policies. We do not feel that the delay involved in the issuance of the policies H-21477 & 48 was over-long, since Mr. Ward’s applications-showed some adverse health history and it was necessary that we obtain a report from his physician. It was approximately two weeks before we-received the doctor’s report.
The rider excluding arthritis was placed on the policy as a matter of company policy, which we feel is fair, both to the Insured and the Company,, since we cannot, of course, accept liability for any condition suffered by the Insured which pre-dates the effective date of the policies. To the best of our knowledge, this is a standard procedure with all insurance companies-in writing a non-cancellable hospitalization plan.
As for the application for life insurance, upon receipt of your letter, we-placed the pending application in our suspense file until this matter could be settled, and thus this is the reason the life policy has not been issued. We respectfully urge that your client reconsider his decision, since the above hospitalization policies are guaranteed renewable and non-cancellable, and we will await your reply before taking further action on this matter.
yours very truly,
/s/ S. H. WARREN”

On January 16, 1961, the plaintiff’s attorneys, in reply to defendant’s letter of December 5th, again wrote the defendant demanding that it return the premiums tc> the plaintiff. This letter is as follows t

“ January 16,1961
Legal Security Life Insurance Ca 4516 McKninney Dallas 5, Texas
Gentlemen:
Re: H. Earl Ward Policies H-21477 & 78; and pending Life Application H5209
Answering your letter of December 5, 1960, we desire to state that we have-contacted Mr. H. Earl Ward, and he demands that you return him his-money which he paid you, which is the sum of $120.62, and that this be done at once; that if you do not return his money at once that he will be forced to take other action, and that he will take this action at once.
Most sincerely yours,
SWAIM & SWAIM By /s/ E. H. Swaim”

On February 28, 1961, the plaintiff requesting that it return the policies in ques-ithrough his attorneys, wrote the defendant tion. This letter is as follows:

February 28,1961
Legal Security Life Insurance Co.
4516 McKinney
"P)o 11 Q C ^ TPYÍ1 O
Re: H. Earl Ward, Policies H-21477 & 78, pending Life Application L-5209
'Gentlemen:
&
This will be your authority to return to the law firm of Swaim & Swaim ■of Eden, Texas, the above numbered policies.
Thanking you to give this matter your early attention, we are,
(Stamped-unreadable)
Very truly yours, SWAIM & SWAIM
By R. H. Swaim
Attorneys for H. Earl Ward”

On March 8, 1961 the defendant company Teturned to plaintiff, through his attorneys, the premiums that had been paid on the policies.

On March 16, 1961 the plaintiff, through his attorneys, wrote defendant again demanding the policies.

On March 21, 1961, the defendant, in •reply to plaintiff’s letter of March 16, 1961, restated its position that the policies in ^question were not in force.

There is no dispute as to any of the facts in this case.

Plaintiffs defend their judgment in the Trial Court on the theory that the riders attached to the insurance policies were placed there as a matter of company policy and point to defendant’s letter of December 5, 1960 wherein the defendant stated, “the rider excluding arthritis was placed on the policy as a matter of company policy, * * To the best of our knowledge, this is a standard procedure with all insurance companies in writing a non-cancellable hospitalization plan.” Plaintiff further argues that if the policies were issued in accord-anee with company policy and in accordance with standard procedure of other companies writing the same coverage, the policies issued were the standard policies of the defendant issued in response to plaintiff’s application. That plaintiff got what he applied for. That upon delivery of the policies to plaintiff and after payment of the premiums, the contract was complete.

We cannot agree with plaintiff’s contention.

The legal relations between an applicant and an insurance company are fundamentally the same as those between parties negotiating any other contract. American Life Insurance Company v. Nabors, Tex.Com.App., opinion adopted by the Supreme Court, 124 Tex. 221, 76 S.W.2d 497.

When the defendant company attached the riders excluding the various illnesses mentioned above to the policies in question it was not issuing plaintiff the policies applied for. A qualified or conditional acceptance is a counter offer. Springfield Fire & Marine Ins. Co. v. Hubbs-Johnson Motor Co., Tex.Com.App., 42 S.W.2d 248. Plaintiff could have either accepted or rejected the counter offer. He chose the latter course.

The defendant’s letter of December 5 states that the company had not been satisfied with plaintiff’s health history as set out in his application for insurance and had procured an additional report from plaintiff’s doctor as to the condition of plaintiff’s health. After securing this additional information, defendant company had added the riders in question excepting the abovementioned diseases from coverage, thus in effect rejecting the plaintiff’s original application or offer and making him a counter offer. In a hospitalization policy an essential element to be agreed upon are the types of infirmities covered. Republic Nat. Life Ins. Co. v. Hall, 149 Tex. 297, 232 S.W.2d 697. Plaintiff’s letters, through his attorneys subsequent to defendant’s letter of December 5, rejected this counter offer. The minds of the parties had never met and the policy was therefore never in force. Southland Life Insurance Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660.

By his letters of February 28 and March 16, 1961 the plaintiff attempted to accept the defendant’s counter offer however at this time the counter offer had been rejected by the plaintiff and had ceased to exist. Acceptance at this time was impossible. As stated in 13 Tex.Jur.2d, Sec. 35, p. 160, “The rejection of an offer by the offeree has the effect of terminating it. Moreover, an offer, after it has once been rejected, cannot thereafter be revived by tendering an acceptance thereof,” citing cases.

The judgment of the Trial Court is reversed and judgment rendered for defendant on its motion for summary judgment.

HUGHES, Justice

(dissenting).

The Court in its opinion states, “When the defendant company attached the riders excluding the various illnesses mentioned above to the policies in question it was not issuing plaintiff the policies applied for.”

It is my opinion that this conclusion does not find undisputed support in the record. Unless it does have such support then the Court errs in reversing this cause and rendering judgment for appellant. I, therefore, respectfully dissent

If a contract of insurance was consummated between the parties then it is undisputed that such contract has not been mutually rescinded.

In appellee’s motion for summary judgment it is stated:

“ * * * that on or about September 28, 1960, plaintiff made application to defendant for its standard hospitalization policy and its standard monthly cash hospital indemnity policy. That the defendant received plaintiff’s application for said policies on or about September 30, 1960, and that on or about November 5, 1960, defendant issued to plaintiff the policies in question, * * *”

Without re-copying it, I refer to the letter of December 5, 1960, from appellant to appellee’s attorneys set out in the Court’s opinion in which it is stated, in part, in referring to the rider about which appellee had complained, “To the best of our knowledge, this is standard procedure with all insurance companies writing a non-cancellable hospitalization plan.”

Attached to appellant’s motion for summary judgment is an affidavit of one of its officers containing the following statement:

“STATE OF TEXAS COUNTY OF DALLAS
AFFIDAVIT
“BEFORE ME, the undersigned authority, on this day personally appeared Douglas E. Bergman, who being known to me as a credible person of legal age, qualified to make this Affidavit, and being first duly sworn upon oath deposes and says:
“That I, Douglas E. Bergman, make this Affidavit of my own knowledge; that I have the authority to make this Affidavit; that I make this Affidavit as Vice-President of Legal Security Life Insurance Company in Cause No. 6,791, 35th Judicial District Court of McCulloch County, Texas, styled: H. Earl Ward vs. Legal Security Life Insurance Company.
“That the Defendant, on or about September 30, 1960, received from Plaintiff two applications for insurance coverage. One application being for the Defendant’s standard hospitalization policy and the other application being for the Defendant’s monthly cash hospitalization indemnity policy. Each respective application is dated September 28, 1960. That the Defendant on or about November 5, 1960, issued to Plaintiff its Policy No. H-21477, standard monthly cash hospital indemnity policy, and its Policy No. H-21478, being its standard hospitalization policy. That a photostatic copy of each said policy is attached to Defendant’s First Amended Original Answer. That at the time Defendant issued the policies in question it attached to each said policy a rider excluding arthritis, sciatica, neuritis, lumbago or rheumatism in any form.”

The riders in question recite that they are “attached to and forming a part of” the policy of insurance.

When these policies were sent to appellee by appellant there apparently was no letter of transmittal accompanying them since no such letter appears in the record. The inference to be drawn from this fact is, to me, that such policies were forwarded in response to and in accordance with the application of appellee. Any other inference would impute bad faith to appellant, an inference which should not be indulged.

It is my opinion that an issue of fact is presented as to whether or not a contract, or contracts, of insurance between the parties was effected, the admissions and disclaimers of the parties not resolving this issue as a matter of law.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Harold C. ABRAMSON, Trustee in Bankruptcy of the Estate of Flage’s, Inc., Appellant, v. Aaron RASHTI, Apnellee.
    No. 16466.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 22, 1963.
    Rehearing Denied Jan. 3, 1964.

      Ungerman, Hill, Ungerman & Angrist, and Wm. Madden Hill, Dallas, for appellant.
    Kerr, Day & Cook, and John A. Kerr, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Suit was filed by plaintiff Trustee in Bankruptcy to obtain $19,800.00 in the hands of defendant, owner of store-building premises, for the benefit of the bankrupt’s estate. The bankrupt, Flage’s, had been a tenant in the defendant’s building under a lease which provided for the lessee’s deposit of the $19,800.00 with the lessor (defendant) as a “security deposit” on the lease contract.

Trial was to the court without intervention of a jury. After hearing judgment was rendered for the defendant, and that the plaintiff take nothing. Plaintiff appealed.

Judgment affirmed.

Findings of fact and conclusions of law were requested and filed. The fact findings therein are not attacked by the points of error presented by the plaintiff, appellant in this court. The court’s conclusions of law, based upon the facts, are challenged. We are in accord with the contentions of plaintiff that the original lease contract, under provisions of which the defendant contends he has a right to retain the $19,800.00 as liquidated damages, does not support the judgment. The trial court deemed the provisions of the contract relative to the security deposit to make the same liquidated damages. Under tests proper tO' be made in view of the decisions of Stewart v. Basey, 1952, 150 Tex. 666, 245 S.W.2d 484 and Wyll v. Kent, 1932 (Tex.Civ.App., Dallas), 56 S.W.2d 505, we have concluded that the provisions of the contract relative to the security deposit rendered the same a provision for a mere penalty, without any effect in the disposition of this case. Since we have concluded that the judgment is to be affirmed on other grounds we do not lengthen the opinion by elaboration upon this holding.

Alternatively, the trial court concluded that even if the provision in question was one for a penalty the defendant had established his accrued damages computable prior to Flage’s’ breach of contract through failure to pay rent, as the amount of $40,-000.00. This conclusion finds support in the findings of fact.

Furthermore, it is noticed in the findings of fact that Flage’s, while a tenant about to fail in business (about the time of the breach of the lease-contract), agreed with the defendant that if either could find a satisfactory and financially solvent tenant to take over the leased premises for Flage’s’' account, at the same rent as provided in the lease, defendant would deliver over the $19,800.00 security deposit; — otherwise, the deposit would be retained to compensate defendant for such extra cost and expense as had been incurred in constructing the building alterations and special improvements (also spoken of as “one purpose” type of improvements) incident to Flage’s’ original entry into possession as defendant’s lessee. In view thereof it is apparent that one theory under which the judgment finds support is that there had been a full consummation of this agreement.

Despite the fact that the terms of the lease contract were not such as would entitle defendant to any damages accruing as the result of Flage’s’ breach after the date of his recission and reentry, he undoubtedly had sustained collectible damages which could be calculated up to the time of reentry. Indeed, damages in the amount of one-half of one month’s rent (at the rate of $3,333.33 per month) is conceded by the plaintiff.

Furthermore, Flage’s and the defendant were at liberty to make binding their agreement (in the nature of a compromise and settlement of the matter of the agreed liquidation of defendant’s damages because of Flage’s anticipated and impending breach) to which the trial court had reference in the findings of fact. The Parol Evidence Rule did not inhibit proof thereof. The Statute of Frauds did not operate to make such contract ineffective.

Judgment is affirmed.


author: LANGDON, Justice.

text:
    HANOVER INSURANCE COMPANY, Appellant, v. J. F. PEYSON, Appellee.
    No. 16462.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 6, 1963.

      Fillmore, Schaeffer & Fillmore, and Roy Schaeffer, Wichita Falls, for appellant.
    Schenk & Wesbrooks, and Cletus C. Schenk, Wichita Falls, for appellee.
   LANGDON, Justice.

Suit was instituted by appellee to set aside the final order of the Industrial Accident Board. Trial was by jury. Verdict was returned finding appellee totally and permanently disabled. The six points of error are based upon jury argument and exclusion of impeachment testimony.

Affirmed.

In his opening argument appellee stated that Dr. Pace had testified that appellee was totally and permanently disabled. Appellant contends this was outside the record. In response to the objection the court in effect stated that he was not going to rule that the doctor said that because he did not remember. At this point appellee stated it was his recollection of the testimony but that if he were wrong he was certain the jury would remember. The appellant during his argument advised the jury that in anticipation of some disagreement between him and the attorney for appellee as to what the testimony in question really was he had requested the court reporter to provide him with a copy of the testimony. Before reading it to the jury he stated, “This is what you heard. This is the testimony that you are bound to consider. This is the testimony in this case.” He then read the pertinent portion of Dr. Pace’s testimony to the jury. His statements were not challenged by appellee or by the court. Thus the jury could rely upon the accuracy of the testimony in dispute and all doubts concerning it were removed.

Further in his opening argument appellee stated that Dr. Ledbetter had examined appellee and sent him back to work to do heavy manual labor and that if appellee had gone back to work he would have probably been crippled for life. Appellant contends the statement was not supported by the record. The record reflects that Dr. Ledbetter was not aware of the herniated disc at the time he suggested that appellee could return to work. He testified in essence that with the herniated disc as it was in May he would not advise appellee to return to work without treatment to handle truck transmissions weighing 100 to 200 pounds. He disagreed that, “ * * * it would necessarily be sending him back to produce a more severe injury”. In our opinion the objection to this argument was properly overruled because it was a reasonable deduction from the evidence and supported by the record. This is particularly true when considering the testimony of both Ledbetter and Pace as to the injurious effects of prematurely returning to work with a herniated disc.

In his closing argument the attorney for appellee stated that Dr. Pace testified that appellee could not have been doing the work that he had been doing for a period of five years if he had a herniated disc. Appellant contends this statement was not supported by the evidence. The objection to it was overruled and we think correctly so because the record reflects that Dr. Pace did so testify in response to a question which was worded in substantially the same language.

The appellant contends it was error to permit appellee to argue that he had lost $10,000 because of being off work as it was outside the record, immaterial and irrelevant.

The record reflects that appallant in response to demands for admission admitted that appellee at the time of his injury had been working for the same employer a period of 286 days and had earned at least $7,642.68 during such period. The appellant in his argument stated in effect that appellee was looking forward to getting about $14,000, “ * * * and that is considerably more than this man, as far as this record is concerned, ever made in any one year or any two years”. In our opinion the argument of appellee was a reasonable deduction from the evidence and supported thereby and further it was proper in reply to appellant’s argument which was calculated to invite the argument complained of.

On the question concerning the exclusion of evidence the appellant contends that the trial court erred in failing to grant a mistrial because of its refusal to allow evidence of how Dr. Pace was selected by appellee to be his treating doctor after appellee had argued that Dr. Pace was the insurance company’s doctor. Another point was based upon the exclusion of testimony that appellant made an appointment with a doctor of appellee’s choice at the latter’s request for his treatment and benefit and that appellee knowing of the appointment failed to appear because he preferred to go fishing and to consume alcohol rather than seek medical attention.

The record reflects that appellee’s testimony in the case was offered from his deposition and included a rather detailed account as to how Dr. Pace was selected. The excluded testimony herein complained of was that of Frank Weidman who was called by appellant and testified out of the presence of the jury. Mr. Weidman’s testimony pertaining to the employment of Dr. Pace was essentially the same as that of appellee. The variances, if any, in the testimony were slight and insignificant. The testimony of Weidman which included conclusions and covered other matters which could not be properly admitted were offered as a whole and not specifically on the matter of Dr. Pace’s employment or the failure of appellee to keep the appointment with him. The court indicated that portions of Weidman’s testimony were proper and would be admitted.

The court advised appellant he would allow testimony showing appellee missed the appointment. It was not offered.

The appellee had testified that he missed the first appointment because of car trouble. Weidman testified that appellee in a telephone conversation advised him he missed the appointment because a friend came in, “ * * * and he hadn’t gotten around to it”. And that he and his friend, “ * * * either had a party or had gone fishing; I don’t remember which * * * Intermingled with this testimony Weidman also expressed the opinion that there was something wrong with appellee the day he talked with him about missing the appointment. He was unable to say what was wrong but that appellee was thick tongued and did not make much sense talking to him that day. He admitted on cross-examination that he did not know whether appellee was under medication at the time of the telephone conversation. That he sounded as though he was intoxicated but that he did not know what was wrong with him.

The appellant in offering the testimony as a whole, some of which was admissible and some of which was not, is not in a position to complain of the court’s refusal to admit all of the testimony where valid objections to portions of it had been sustained. It was incumbent upon appellant to offer the testimony as to the matters complained of and to obtain rulings of the court concerning each.

When considering the record of this case as a whole the appellant’s position of seeking reversal on the basis of unoffered testimony is untenable.

It is conceded that an attorney purporting to quote the language of a witness during an argument rather than to draw a deduction therefrom is under a duty to quote it accurately. However “Before a judgment is reversed because of argument of counsel two things must appear : the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. * * Cases decided prior to the adoption of the Hules (434 and 503, T.R.C.P.) have little value as precedents because they were decided under a rule which required a reversal if the court entertained any doubt of the harmful effect of the argument”. Aultman v. Dallas Railway & Terminal Co. (1953), 152 Tex. 509, 260 S.W.2d 596, 599, 600.

The doctrine of presumed error ceased to prevail in Texas upon adoption of Rules 434 and 503, Texas Rules of Civil Procedure. Texas Employers’ Insurance Association v. Rubush, 337 S.W.2d 501, 503 (Tex.Civ.App., Fort Worth), 1960, citing the Aultman case, supra.

“In enforcing those Rules (434 and 503, T.R.C.P.) we have held with respect to many and various types of errors that a reversal may be ordered only when a review of ‘the whole record’ convinces the reviewing court that but for the error a different verdict or judgment would probably have been rendered.” Condra Funeral Home v. Rollin (1958), 158 Tex. 478, 314 S.W.2d 277.

“ ‘As a predicate on which to base reversible error in improper argument of counsel which can be cured by a ruling of the court the complaining party must not only object to the argument but the objection must be pressed to the point of procuring a ruling.’ ” Texas General Indemnity Company v. Bridwell, Tex.Civ.App., 304 S.W.2d 131.

The appellant did not press the court to the point of obtaining a ruling concerning its objection to the appellee’s argument as to the testimony of Dr. Pace. Attention is directed to the article entitled “The Development of the Doctrine of Harmless Error in Texas” by the Honorable Robert W. Calvert, Chief Justice of the Supreme Court of Texas, Texas Law Review 31, No. 1, pages 1-18.

The record in this case reflects several instances in which the court in sustaining objections admonished the jury not to consider portions of the argument objected to and to rely upon its own memory and recollection of the testimony presented during the trial. The appellee during his argument on several occasions likewise requested the jury to rely upon its own recollection of the testimony.

All points of error are overruled.

Affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ed FISTER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 25, 1963.
    John B. Breckinridge, Atty. Gen.; William A. Lamkin, Jr., Asst. Atty. Gen.; James B. Stewart, Dept, of Highways; Frankfort, for appellant.
    Robert M. Odear; C. Gibson Downing; Gladney Harville; (Stoll, Keenon & Park), Lexington, for appellees.
   CLAY, Commissioner.

In this highway condemnation suit the jury awarded the property owners approximately $44,000. (The Commissioners’ award had been $41,477.) The Commonwealth contends the award was excessive and was substantially attributable to the introduction of incompetent evidence.

The tract involved contained 4}/£ acres situated at the corner of the Lexington-Richmond Road and the Mt. Tabor Road in Fayette County. On the property was located a 16-unit motel. The land taken was a strip approximately 80 feet wide along 400 feet of frontage on the Lexington-Richmond Road and a strip averaging about 25 feet wide along several hundred feet of the Mt. Tabor Road.

There was a wide disparity in the witnesses’ estimates of the total damage to the property (which included value of the land taken, damage to the remainder, and damages for a temporary easement). The highest compensatory figure fixed by expert witnesses for the Commonwealth was $16,000. The highest for the owners was $106,000. (The lowest for the owners was $78,000.)

The jury verdict was broken into three parts as follows: Value of land taken, $23,410.13; damage to remaining land, $20,000; rental value of land temporarily taken, $500; a total of $43,910.13. With the possible exception of the rental value item, the verdict has no logical relationship to any of the evidence in the case with respect to valuation. This unfortunately happens too often in condemnation cases because the jury is left stranded between such a wide divergency of valuations that all it can do is guess at a fair figure. Whether proper factors have been considered thus becomes important in determining the reasonableness of an award.

The Commonwealth’s first contention is that the opinion evidence of the owners’ expert witnesses was incompetent for various reasons. The evidence was competent, although the probative value of some of it is most questionable. We have recently examined the question at length in Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, and that case answers this contention of .the Commonwealth.

We now reach a question which has been recurring with great frequency in condemnation cases. It concerns the competency of the owner’s testimony as to the market value of real estate when he possesses no qualifications other than ownership upon which to base his opinion. In the present case the owner fixed a monetary market value of the land taken and of his property both before and after the taking. He did not disclose any familiarity with property values in the neighborhood. He disclaimed knowledge of comparable sales. He indicated his estimates were to some extent based on how the condemnation would affect his business and one of his figures apparently came from consultation with some other party before the trial. His valuations also showed a glaring discrepancy which he did not explain. It seems to us (and apparently the jury took the same view) that this testimony with respect to actual money values had no probative value. However, our question is whether it was competent simply by reason of the fact that the witness was the owner of the property.

It is generally recognized that the owner of property, either real or personal, is ipso facto qualified to give his opinion of its market value. Wigmore on Evidence (3rd Ed.) Vol. 3, sections 714, 716 (see particularly 1962 supplement); 32 C.J.S., Evidence §§ 545d(3), 545e(1), pages 305, 306. The rule, as many other rules of evidence, apparently originated as a matter of practical necessity. This consideration particularly applies in the personal property field, since the owner may be the only available witness on valuation. See 37 A.L.R.2d 967, 982. In the light of this necessity and in view of his familiarity with the chattel, the owner is presumed , to have some knowledge of its value. See Davis v. Rhodes, 206 Ky. 340, 266 S.W. 1091.

The tenuous basis of the rule with respect to personal property is exposed -in those cases where it is held that mere ownership is not enough if other facts indicate the owner in reality lacked knowledge of the chattel’s value. See Courier Journal & Louisville Times Co. v. Crossland, 300 Ky. 361, 188 S.W.2d 428 (books); Barron v. Phelps, Ky., 238 S.W.2d 1016 (logs). See also 37 A.L.R.2d 967, 985.

With respect to real estate, even though the practical necessities are not nearly so urgent, the same rule has prevailed. Fishback Trucking Co. v. Jackson, 289 Ky. 235, 158 S.W.2d 423; Kentucky & West Virginia Power Co. v. Kilburn, 304 Ky. 635, 201 S.W.2d 896; Barron v. Phelps, Ky., 238 S.W.2d 1016. However, as in the case of personal property, such evidence has been declared inadmissible where it was apparent the owner’s presumed knowledge of value did not exist. Hipp-Green Lumber Corporation v. Potter, Ky., 271 S.W.2d 892; 32 C.J.S. Evidence § 545d(3), page 306. Some courts, while giving lip service to the rule, have retreated from it by actually requiring more than mere ownership. Rubin v. Town of Arlington, 327 Mass. 382, 99 N.E.2d 30; Miller v. Darby, 336 Mass. 243, 143 N.E.2d 816; Besen v. State, 17 Misc.2d 119, 185 N.Y.S.2d 495, 504; Sgarlat Estate v. Commonwealth, 398 Pa. 406, 158 A.2d 541. Rhode Island rejects the rule outright. Greene v. State Board of Public Roads, 50 R.I. 489, 149 A. 596.

The real difficulty appears to be a procedural one. If the owner is presumed qualified to express an opinion simply by reason of ownership, he can immediately testify concerning market values. Subsequent examination may establish that he lacks familiarity with the property or knowledge of property values. At that point his opinion should be rejected as incompetent. Assuming such evidence is then stricken, his valuations have been heard by the jury and a substantial amount of trial time and procedural maneuvers have been required to undo a situation which the proper development of qualifications would have initially avoided.

The more we examine the practical apr plication of the rule (with its ex post fac-to limitations) as it pertains to real estate, the more unsatisfactory it appears from the standpoint of trial procedure and from the standpoint' of assisting a jury to reach a fair determination of proper damages in a condemnation suit. After extensive research we have been unable to find a persuasive reason for the arbitrary rule that mere ownership of realty automatically qualifies such owner to render a valid opinion concerning its market value at any given time.

It is true an owner may properly be presumed familiar with the character and extent of his property, but this is only one of two necessary elements in the appraisal of its value. The other element is some knowledge of property values. While the owner may have a general concept of the worth of his property based upon what he paid for it (and evidence of this price ordinarily is competent- — -18 Am.Jur., Eminent Domain, section 351; 55 A.L.R.2d 791), it does not sufficiently qualify him to express an objective opinion of its current market value.

It has always been recognized that there “must be some basis for a knowledge of market values before a witness may express an opinion as to values.” Allen Co., Inc. v. Thoroughbred Motor Court, Ky., 272 S.W.2d 343, 344. With respect to other lay witnesses, it is required that they have “a knowledge of property values generally” (Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 475), or be “acquainted with property values in the vicinity” (Himlar Coal Co. v. Kirk, 224 Ky. 383, 6 S.W.2d 480, 481). See also Damron v. Bartley, 302 Ky. 83, 194 S.W.2d 73. Attention is called to Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851, wherein we set forth the basic qualifications of a witness on real estate values.

We see no reason why an owner, before expressing his opinion concerning the market value of his real estate, should not have the initial minimum qualifications required of his neighbors. It follows that the qualifications of the owner witness, as other witnesses, must be affirmatively shown before his opinion of market values is expressed. 32 C.J.S. Evidence § 458a., page 98.

The net effect of our decision on this question is that the owner of real estate shall not be presumed, adequately qualified to express an opinion of market values by reason of ownership alone. Since the requirement that an owner must initially establish his qualifications before expressing an opinion (the same as other witnesses) makes necessary a different procedural method from that heretofore followed, it shall apply only to trials held after the issuance of the mandate in this case. (As the judgment before us must be reversed on other grounds, the application of the new rule here will not adversely affect appellees’ rights.)

Under the rule above set forth, the owner in the present case did not establish sufficient qualifications to make competent his opinions concerning the market value of the real estate involved. On another trial such evidence shall not be admitted unless the owner establishes better qualifications in advance of expressing an opinion.

(As in the case of any other witness, after he has established prima facie qualifications and expressed an opinion, both the qualifications and credibility of the owner’s evidence may be further examined into. Proper procedure is discussed in Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.)

The Commonwealth next contends the trial court erred in permitting the owners to testify concerning the gross income from the motel business during certain years and the loss of business caused by the taking and the construction of the highway. This of course was incompetent. Henderson v. City of Lexington, 132 Ky. 390, 111 S.W. 318, 22 L.R.A.,N.S., 20; City of Newport Mun. H. Comm. v. Turner Advertising, Ky., 334 S.W.2d 767; Commonwealth, Dept. of Highways v. Smith, Ky., 358 S.W.2d 487; Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844. The owners contend the evidence was admissible to show damages for the use of the temporary easement during the period the new road was under construction. Even if this evidence had been so limited, which it was not, it was still incompetent. Rental value of the land involved, not a business loss, is the proper measure of damages for a temporary easement of this nature. See City of Richmond v. Gentry, 136 Ky. 319, 124 S.W. 337; 18 Am.Jur., Eminent Domain, section 395; 7 A.L.R.2d 1297, 1299.

There is a special reason why evidence of this character is inadmissible as proof of damages for the taking of a temporary construction easement. The business loss is actually attributable to the disruption of the highway during the period of reconstruction rather than to the occupancy of the temporary easement area. Highway construction is carried out in the exercise of the police power, and inconvenience or injury to adjoining property owners, arising from reasonably necessary operations on the right of way, is not com-pensable as a “taking” of their property in the constitutional sense. 18 Am.Jur., Eminent Domain, section 142; Commonwealth v. Moore, Ky., 267 S.W.2d 531; Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 858. The business loss, if any, was caused by normal construction work on the highway, which included occupancy of the easement area. Damages for an injury of this nature, occasioned by temporary obstructions and operations incident to the making of a public improvement, are not recoverable. Thompson v. City of Mobile, 240 Ala. 523, 199 So. 862; Oldfield v. Tulsa, 170 Okl. 329, 41 P.2d 71, 98 A.L.R. 953.

The Commonwealth next contends the court erroneously permitted the owners to introduce pictures showing the condition of the premises during the construction •v^prk. These pictures were inadmissible on fjje ground just discussed which rendered eyidence of business losses inadmissible. They tended to prove an injury to the business of the motel caused by unsightly construction operations. As heretofore noted, the creation of such condition did not constitute a “taking” of appellees’ property. Its portrayed existence had no relevancy to the fair market value of appellees’ land being permanently taken, nor to permanent resulting damage, nor to the rental value of that portion subjected to a temporary easement.

The two items of incompetent evidence above discussed must almost certainly have influenced the jury in returning its verdict. This requires reversal of the judgment and we do not pass upon the question of ex-cessiveness. On a new trial the parties will be governed by the principles set forth in Commonwealth v. Tyree, Ky., 365 S.W.2d 472 and Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.

The judgment is reversed for consistent proceedings.


author: PALMORE, Judge.

text:
    KENTUCKY WORKMEN’S COMPENSATION BOARD et al., Appellants, v. Louis C. HAUNGS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.
    Rehearing Denied Jan. 24, 1964.
    Ben K. Wilmot, Frankfort, for appellants.
    Gavin H. Cochran, Stanley Benovitz, Louisville, for appellees.
   PALMORE, Judge.

The question here is whether a claim pending before the Workmen’s Compensation Board can be dismissed “with prejudice” without approval of the Board. We hold that it cannot.

KRS 342.265, which deals primarily with settlement agreements, provides that “nothing shall operate as a final settlement except a memorandum of agreement filed with and approved by the board,” etc. The obvious policy and purpose of this law is to discourage the making of settlements except under the protective supervision of the Board. It requires very little perspicacity to recognize at once that this objective would be utterly defeated if claimants were permitted simply to dismiss with prejudice as a matter of right. Legitimate, board-approved settlements would soon disappear in the wake of bootleg agreements carried out under cover of voluntary dismissals.

We do not hold, of course, that the claim cannot be dismissed voluntarily. But the Board, as a representative of the public, has a substantial interest beyond that of a mere nominal party, Workmen’s Compensation Board v. Abbott, 212 Ky. 123, 278 S.W. 533, 47 A.L.R. 789 (1925), and in this capacity it has the authority to prevent such a dismissal’s having the effect of a permanent and irrevocable waiver.

The judgment is reversed with directions that the cause be remanded to the Workmen’s Compensation Board for further proceedings.


text:
    KENTUCKY POWER COMPANY, Appellant, v. Chester HALCOMB et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    Rehearing Denied Jan. 24, 1964.
    Willis W. Reeves (Barret & Cooper), Hazard, E. Gaines Davis, Jr., Frankfort, for appellant.
    S. E. Duff, S. M. Ward, Hazard, for ap-pellees.
   CLAY, Commissioner.

Appellees recovered $4,000 damages for the destruction of their house and personal property as a result of a fire. The basis of the claim was a defective condition of the service wire installed by appellant. The sole contention of appellant is that it was entitled to a directed verdict.

There was substantial evidence the fire started in the area where appellant’s wire was attached to the house. There was testimony the service drop had been spliced near the house and that it was so close to the tin roof that the wire rubbed against the sharp edge. One of the plaintiffs stated he had notified defendant about this potentially dangerous condition. A piece of wire 17 inches long, found in the ashes after the fire, was introduced in evidence and an expert testified that one end of it had been subjected to such heat as to indicate a short circuit in the wire. There was proof the tin roof could abrade the wire so as to cause a short circuit.

While appellant insists some of appellees’ evidence was incredible, we believe there was sufficient evidence of credible quality to establish a reasonable probability that the fire was caused by a short circuit in appellant’s wire resulting from a defective condition of installation or maintenance. It was for the jury to determine the credibility of the evidence and to draw reasonable inferences therefrom.

Appellant relies upon such cases as Kentucky Power Company v. Dillon, Ky., 345 S.W.2d 486. In that case the testimony of plaintiff’s witnesses was so contradictory and patently incredible and there was such substantial evidence the fire had originated inside the house that we held the evidence would not support a verdict for the plaintiff. Other cases wherein we have held a directed verdict for the defendant should have been given lacked one or more of the factors which we find present in this case, i. e., (1) an observed potentially dangerous condition existing before the fire; (2) notice to the defendant of such condition; (3) an identification of the source of the fire in the immediate area thereof; (4) credible evidence of a short circuit in the line which could have been caused by the condition. Each case must be resolved in the light of the particular circumstances shown. In our opinion appellees made a sufficient showing to warrant a jury determination of the issue.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    James P. HALLAHAN, Clerk of the Jefferson County Court, et al., Appellants, v. Emmet V. MITTLEBEELER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.
    Rehearing Denied Jan. 24, 1964.
    William A. Young, Frankfort, E. P. Sawyer, County Atty., Louisville, for appellant.
    Edwin W. Paul, Louisville, for appellee.
    John B. Breckinridge, Atty. Gen., Walter B. Herdman, Asst. Atty. Gen., Frankfort, amicus curiae.
   WADDILL, Commissioner.

This declaratory judgment action was brought by appellee in a representative capacity to determine the constitutionality of House Bill 17 which was enacted by the 1962-Legislature to amend KRS, Chapter 126. The circuit court held these amendments to be unconstitutional.

The question raised on this appeal is whether the amendments to KRS, Chapter 126 are unconstitutional for either of two basic reasons: (1) They contravene Section 147 of the Kentucky Constitution in that this Section does not permit the Legislature to designate classes of absentee voters and (2) they violate Sections 1, 2, 3, 6 and 59 of the Kentucky Constitution and the Fourteenth Amendment to the Federal Constitution by arbitrarily extending the absentee voting privilege to some voters but not all voters.

Section 147 of the Kentucky Constitution was amended in 1945 to provide that:

“ * * * any person absent from the county of his legal residence, or from the state, may be permitted to vote in a manner provided by law.”

By the enactment of House Bill 17 the pertinent definitions of KRS 126.140 were changed to read:

“(1) ‘Absent voter’ means any qualified voter in the United States services, or bona fide, full time student in residence at an educational institution, who expects to be absent from the county in which is situated his voting precinct on the day of holding any election. * * *
“(4) ‘United States services’ means:
“(a) Members of the armed forces while in the active service, and their spouses and dependents residing with them.
“(b) Members of the merchant marine of the United States, and their spouses and dependents residing with them.
“(c) Civilian employes of the United States in all categories and their spouses and dependents when residing with or accompanying them, whether or not the employe is subject to the civil-service laws and the Classification Act of 1949, and whether or not paid from funds appropriated by the Congress.
“(d) Members of religious groups or welfare agencies assisting members of the armed forces, who are officially attached to and serving with the armed forces and their spouses and dependents residing with them.”

In considering an attack on the constitutionality of legislation, this Court has continually resolved any doubt in favor of constitutionality rather than unconstitutionality. Reynolds Metal Co. v. Martin, 269 Ky. 378, 107 S.W.2d 251. We have also maintained that the propriety, wisdom and expediency of statutory enactments are exclusively legislative matters. Craig v. O’Rear, 199 Ky. 553, 251 S.W. 828. Moreover, in the instant case, we observe that in view of the permissive character of the hereinbefore quoted portion of Section 147, to vote by absentee ballot is a privilege extended by the Legislature and not an absolute right. See Crowe v. Emmert, Ky., 305 S.W.2d 272.

It is contended that the phrase “any person” in Section 147 means that if the Legislature grants the privilege of voting by absentee ballot, it must be extended to every qualified voter who is absent from the county of his legal residence on election day. In support of this contention reliance is had upon Atherton v. Fox, 245 Ky. 718, 54 S.W.2d 11. That case involved the constitutionality of an Act of the 1932-Legislature which required all voters living in a county which contained a city of the first class (of which there is only one) to register as a condition precedent to the right to vote. The Act was held to violate a clause of Section 147 which provides: “The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of five thousand or more; and may provide by general law for the registration of other voters in the State.” The Act in the Fox case was held to be unconstitutional because it arbitrarily set up a classification of voters (those living in one particular county) who were not reasonably different from those living in any other county insofar as the need for registration was concerned. However, in 1904 the Legislature had invoked this same Section to require registration of all voters living in an incorporated city. This classification of voters was held to be constitutional in Yates v. Collins, 118 Ky. 682, 82 S.W. 282. Thus we see from the result of the holdings in these cases that “other voters” as it appears in Section 147 does not necessarily mean “all voters.” Similarly, the plain language of Section 147, insofar as it uses the words “any person,” does not require the legislative discretion to he exercised in favor of all voters. As Section 147 contains no declarative limitation of legislative power on the subject of absentee voting we conclude that the Legislature may select the recipients of this privilege (consistent with other requirements of the Constitution).

Since there is no prohibition under Section 147 against establishing classifications of absentee voters, we must further determine whether the classifications fixed by the 1962-amendments to KRS 126.140 are unreasonable and arbitrary, i. e., whether the classifications rest on natural and reasonable distinctions. Miller v. Hoblitzell, Ky., 271 S.W.2d 899. The amendments establish two general classes of voters who are eligible to vote by absentee ballot: Persons serving the federal government (including their spouses and dependents), and full,time students. Admittedly they do not include many otherwise qualified voters who might normally be absent from the county of their residence on the day of an election. However, we perceive that the Legislature extended the-privilege of absentee voting to persons living away from their county of legal residence who may, in the normal course of' events, be expected to retain their voting-residence in Kentucky and who cannot conveniently and economically return to their home county on election day. The two classes selected by the Legislature appear to be the only large identifiable classes-, that accomplish the object of this legislation even though they do not do so with, mathematical accuracy. That there will be-exceptional circumstances in individual', cases does not, of course, effect the validity of the basic classifications. In Jones v. Russell, 224 Ky. 390, 6 S.W.2d 460, we: stated:

“Classification must have relation to the purpose of the Legislature. But logical appropriateness of the inclusion or exclusion of objects or persons, is not required. * * * At any rate,, exact wisdom and nice adaptation of.' remedies are not required by the Fourteenth Amendment.”

In the same opinion it is observed that “so long as constitutional guarantees are observed, the Legislature -is unhampered in: its discretion in dealing with practical exigencies.”

The provisions of KRS, Chapter 126, do. not deprive anyone of his right to vote. They do not impinge upon the constitutional guaranty of free and equal elections.. They do not violate the constitutional provision against special legislation since, as-discussed above, they extend a privilege to. two reasonably classified groups properly-designated as recipients thereof.

It is our opinion that the classification here challenged is not violative of .either our State or. Federal .Constitutipn and,, therefore, we hold the amendments to KRS,. Chapter 126, to be valid.'

'The judgment is reversed with directions to enter a new judgment upholding the constitutionality of Chapter 120 (House Bill 17), 1962 Acts of General Assembly, amending KRS, Chapter 126, (Absentee Voting).


text:
    Archie FERGUSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 25, 1963.
    Rehearing Denied Jan. 24, 1964.
    John Y. Brown, Jr., Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, Paul Mansfield, Commonwealth’s Atty., Lexington, for appellee.
   WADDILL, Commissioner.

Archie Ferguson killed Carl Howard during a fight between them. By an indictment he was accused of wilful murder and upon his trial was found guilty of voluntary manslaughter and sentenced to confinement in the state penitentiary for a term of 12 years. On this appeal he contends that: (1) The verdict is flagrantly against the evidence; (2) the trial court abused its discretion by refusing to grant him a new trial on the ground of newly discovered evidence; (3) the trial court permitted the jury to consider incompetent and prejudicial evidence.

During the evening of April 8, 1962, appellant’s niece, Joan Ward, was cursed by three men, one of whom was Charles Howard, as she was walking alone on a street in the City of Lexington. Appellant was informed about this and, after he had instructed his niece to obtain a warrant for the arrest of the men who had annoyed her, he left his home, accompanied by several of his friends, to look for Howard. When appellant reached the east side of Maxwell Street he saw Howard on the west side of the street and shouted for Howard to wait, that he wanted to find out why he had cursed his niece. Thereupon Howard came across the street, lunged at appellant and struck him on the head with a bottle and then grabbed appellant around his waist in a manner similar to a bear-hug. When Howard temporarily released his hold on appellant, the latter drew a knife from a scabbard attached to his belt. During their further encounter Howard sustained severe cuts described as stab wounds in his chest and on his hip and on the back part of his neck. The stab wound in the chest penetrated his heart and caused his death.

Appellant testified that he did not raise the knife to a position which would have permitted him to stab Howard. However, a policeman testified that he saw appellant standing over Howard’s body holding a knife in his upraised hand. There was also testimony that appellant was much larger than Howard and that the latter had been drinking wine throughout that day.

Appellant contends that the evidence conclusively makes out a case of self-defense; that this Court should so rule as a matter of law and reverse the judgment as being flagrantly against the evidence. To sustain the conviction it is urged that there is ample evidence which negates the testimony to the effect that appellant killed Howard in self-defense.

In Lee v. Commonwealth, Ky., 329 S.W.2d 57, where the contention was made that the accused was entitled to a directed verdict of acquittal, we stated: “The rule is that even though a defendant who is the only eyewitness to a killing makes out a case of self-defense, the trial court may properly refuse to instruct peremptorily to find a verdict for the defendant where some of the physical facts and other testimony contradict the defendant’s testimony and cast some doubt upon the accuracy and truthfulness of it.” In the instant case, we believe that the severity and location of Howard’s wounds, which show that they were inflicted with great force, and the testimony of the policeman which also tends-to contradict appellant’s testimony that he did not stab Howard, when considered in light of the other evidence in the case, justified the submission of the case to the jury under the above stated rule. We also find the evidence supports the voluntary manslaughter conviction.

Appellant contends that the trial judge should have granted him a new trial on the ground of newly discovered evidence. This-evidence consisted of an affidavit of Barbara Master which, in substance, stated that some of the wounds found on Carl Howard’s body had been inflicted during two-fights that had occurred prior to the one with the appellant. The probative value of this affidavit is substantially affected by the affidavit of the Fayette County Coroner which stated that all of the wounds found on Howard’s body were inflicted at .approximately the same time.

Assuming that the newly discovered' evidence would be competent evidence on another trial of this case, a question we do-not decide, we do not believe it is of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted. See Gilbert v. Commonwealth, Ky., 317 S.W.2d 175. Hence, we are not persuaded that the trial judge abused his discretion.

It is further contended that the jury •was permitted to consider incompetent and prejudicial testimony. We cannot review this alleged error because no objection was timely made and therefore it must be considered waived. Bowling v. Commonwealth, Ky., 279 S.W.2d 238; See also, RCr 9.22.

The judgment is affirmed.


author: STEAKLEY, Justice.

text:
    HIDALGO AND CAMERON COUNTIES WATER CONTROL AND IMPROVEMENT DISTRICT NO. 9 et al., Relators, v. The Honorable J. H. STARLEY, Special Judge Presiding in the 93rd District Court of Hidalgo County, Texas, et al., Respondents.
    No. A-9840.
    Supreme Court of Texas.
    Jan. 8, 1964.
    Smith, Mcllheran & Jenkins, Weslaco, J. D. Vollmer, Mercedes, Arthur A. Klein, Harlingen, Norton A. Colvin, San Benito, Matthews, Nowlin, Macfarlane & Barrett, San Antonio, Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, Strickland, Wilkins, Hall & Mills, Mission, for relators.
    Waggoner Carr, Atty. Gen., Austin, F. R. Booth, Asst. Atty. Gen., Sawnie B. Smith, Edinburg, James W. Wilson, Austin, A. W. Walker, Jr., Dallas, Rankin, Kern, Martinez & De La Garza, McAllen, Kelley, Looney, McLean & Littleton, Edinburg, Vinson, Elkins, Weems & Searls, Victor W. Boul-din, Houston, Hill, King & McKeithan, Mission, for respondents.
   STEAKLEY, Justice.

This is an original mandamus proceeding. It relates to the case of State of Texas v. Hidalgo County Water Control and Improvement District No. 18 et al., pending in the 93rd Judicial District Court of Texas. The case is cause No. B-20576 by which it will be herein identified.

Relators seek a writ of mandamus compelling Honorable J. H. Starley, The Special Judge Presiding, to proceed to trial. Judge Starley has properly declined to do so because of the question of his qualification under the prohibition of Section 11, Article V, of the Texas Constitution, Vernon’s Ann.St., that “No judge shall sit in any case * * * where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law * The third degree is prescribed by Article 15, Revised Civil Statutes. The record before us consists of the pleadings and briefs of the parties in this proceeding and the basic pleadings of the parties in the pending case. The facts represented by the respective parties are unchallenged.

The pending- case is one of great magnitude. It was filed by the State in 1956 to obtain an adjudication of the water rights to the American share of the waters of the Rio Grande River. The fifth amended original petition of the State names approximately three thousand defendants who claim the right to use water from the Rio Grande for a variety of uses, including the irrigation of over 850,000 acres of land situated in the Counties of Starr, Hidalgo, Cameron and Willacy. Relators represent that the trial of the case will extend over a period of years, and that the costs involved in the litigation, and in the allocation and distribution of the supply of water of the Rio Grande and that stored in Falcon Reservoir, pending final judgment, will reach hundreds of thousands of dollars. Relators further represent that at least twenty-five thousand individual landowners located within the districts which are named as parties in the suit will be vitally affected by the ultimate decision in the case.

It is asserted by the Attorney General on behalf of the respondent, Texas- Water Commission, the principal plaintiff in the pending suit, that the Commission has named as a party defendant every person who claims to own an interest in a water right. The relief sought is the determination of “the validity and priority in point of time of each and every right to appropriate, impound, divert and use waters of the Rio Grande claimed by defendants”; that “those defendants found without valid and subsisting water rights from the Rio Grande” be permanently enjoined “from appropriating, impounding, diverting or using waters of the Rio Grande”; and that “the Court determine the duty of water and the land to which such rights are appurtenant” as to those defendants “found by the Court to have valid and subsisting water rights from the Rio Grande for irrigation use.”

This Court has heretofore considered what has been the recurring problem of the qualification of a judge to sit in the case.. The problem first arose with respect to' Honorable W. R. Blalock who was at the time the regularly elected Judge of the 93rd District Court in which the case is pending. Judge Blalock questioned his own qualification because of his ownership of certain property in the city of Mission and lying within one of the porciones which abut on the Rio Grande River. Judge Blalock expressed the opinion in writing before this Court that he would derive benefits from a determination that the water district from which he purchased water had a prior right to water over other water districts and users who are parties to the case; and, similarly, that he would suffer a detriment if it is determined that the water district was not entitled to priority in the use of water over other water districts in the case. Notwithstanding, this Court, speaking through Chief Justice Hickman, held that Judge Blalock was not under a legal disqualification to try the case. Hidalgo County Water Improvement District No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593. In so doing, this Court recognized the extraordinary problem with which it was then confronted, saying:

“We face a condition unique in the history of our jurisprudence. Relators are entitled to have thei'r rights litigated. It is next to impossible to find a judge residing in another section of the State who could be transferred to Hidalgo County to try this case.”

Subsequently, Judge Blalock was succeeded as the regularly elected Judge of the 93rd District Court by Honorable Magus-Smith. Judge Smith had been an attorney in the case prior to his elevation to the bench, and his disqualification was declared-in Hidalgo County Water Control and Improvement District No. 1 v. Boysen, Tex.Civ.App., 354 S.W.2d 420, er. ref. Honorable Woodrow Laughlin, Judge of the 79th District Court, had been assigned by the-Presiding Judge of the Administrative District to serve as Judge of the 93rd District Court for a certain period. The qualification of Judge Laughlin was also brought under attack in Boysen because certain of his relatives within the prohibited degree owned property in two of the water districts which are parties to the main water suit. Judge Laughlin was held qualified. The opinion of the Court of Civil Appeals, which we approved by an unqualified refusal of the application for writ of error, enlarged upon the controlling importance of the practical doctrine of necessity to which this Court expressly adverted in Blalock. Necessarily implicit in Boysen was the awareness that the landowner relatives of Judge Laughlin, like Judge Blalock, would either receive a benefit or suffer a detriment, dependent upon the outcome of the case. But it was said:

“In applying the rule of disqualification for a relative’s interest we should endeavor to follow the spirit and intent of the Constitutional rule. The rule is based upon ethical principles. Justice should not have even the appearance of extraneous influence. The line has been drawn at that point where one can determine from the facts that the relative’s interest is direct and real instead of indirect and remote. Even this general rule may be limited by necessity. This is so, because the Constitution does not contemplate that judicial machinery shall stop.”

The problem in the present proceeding originated in the fact that the disqualification of Judge Magus Smith necessitated the assignment by the Chief Justice of this Court, pursuant to Article 200a, Section 2a(3), Vernon’s Annotated Civil Statutes, of a Special Judge to preside over the full trial of the case. Judge Starley, a resident of Pecos, Texas, and the duly elected Judge of the 143rd Judicial District, was so designated on June 15, 1962. There is no question concerning his qualification at such time. But on June 1, 1963, Judge Starley married Mariam Baker Anderson, a resident of Cameron County, and thereupon became related by affinity in the second degree to Russell Bingley, a brother of Mrs. Starley’s mother, and to Mrs. Frances Davies, a sister of Mrs. Starley’s father. At the time of the marriage, Mr. Bingley was a director of the Cameron County Water Control and Improvement District No. 16 and was one of the defendants in Cause B-20576. Subsequently, Mr. Bingley resigned as director, and on October 11, 1963, was dismissed as a defendant by order of Honorable Paul A. Martineau who was sitting for Judge Starley. It is represented that Mr. Bingley owns a total of five and one-half acres of land lying in two of the water districts involved. It is further represented that Mrs. Frances Davies owns 95.42 acres of agricultural land located within Cameron County Water Control and Improvement District No. 1. Neither Mrs. Davies nor Mr. Bingley, individually, is named as a party in the suit, but the districts in which they are landowners are named as parties. It appears that the rights claimed by them as landowners are based upon the fact that their land is located within the boundary of a water district;, it does not appear that they claim rights against other landowners or against any water district. Nor does it appear that the pleadings and prayers for relief of the various parties encompass the settlement of controversies which may exist between individual landowners or between individual landowners and other water districts; the suit is limited to the determination of the rights of the water districts to appropriate, impound, divert and use waters of the Rio-Grande under appropriative water rights-claimed by the water districts in which the properties of Mr. Bingley and Mrs. Davies-are located, and by other water districts. The judgment in the case would bind the landowners only in the exercise of their rights through the district and the directors of the district are authorized to represent the landowners. Article 7880-137, V.A. C.S.; Article XVI, Section 59(a) and (b) of the Texas Constitution. It is evident, therefore, that the interests of Mr. Bingley ánd of Mrs. Davies are no more direct than was that of Judge Blalock and that of the relatives of Judge Laughlin. There is only the difference that Judge Blalock was shown to own four lots and a twenty-foot strip ■of land; the relatives of Judge Laughlin were shown to own two city lots in one water district and 19.6 acres of land in another; whereas, here, Mr. Bingley owns five and one-half acres of land lying in two water districts, and Mrs. Davies owns 95.42 acres of land lying in one district. In the ■context of the problem at hand, this is a difference without substance. The purposes of the requirement of the Constitution concerning the qualification of a judge to sit in a case are equally unimpaired in each instance. There was not in Blalock or in Boysen a shadow of suggestion of extraneous influence; there is none here.

It must be recognized that the conditions of this special assignment are most severe. It is doubtful if any other presently active district judge in Texas could accept an assignment to try this case over an extended period of years. It is likewise doubtful if any retired judge is physically able or otherwise available for the assignment. The fact of the thousands of landowners similarly situated to Mr. Bingley and Mrs. Davies presents the ever-present possibility that a relationship to any judge assigned to the case may develop at any time, and thus jeopardize the orderly adjudication of the controversies. Judge Starley has been presiding over the case since June 15, 1962. He has made many decisions and has entered many orders, including a pretrial order establishing a trial schedule. It is the right of the litigants that the trial of the case proceed and that the judicial machinery shall not continue to be sub j ected to fitful starts and stops. These were the valid and timely considerations which were brought to bear in Blalock and in Boysen. They are determinative here. Judge Star-ley is not under a legal disqualification.

Consideration of an additional facet of the problem is necessary. As mentioned before, Judge Starley upon his marriage became related by affinity to Russell Bingley. At that time Bingley was a party to the suit in his capacity as a Director of Cameron County Water Control and Improvement District No. 16, one of the named defendants in Cause No. B-20576. This basis for disqualification of Judge Starley was later removed by Bingley’s resignation as Director and by his dismissal as a party defendant. The parties to this proceeding have assumed that Judge Starley was disqualified so long as Bingley was a named party; they raise the question of whether it is necessary for the Chief Justice to reappoint Judge Starley to empower him to act after the basis for his disqualification was removed by the resignation of Bingley as Director and his dismissal as a party.

The constitutional rule disqualifying a judge to sit in the trial of a case when a named party is related to him within the prohibited degree has generally been accepted as applicable no matter how remote and speculative the actual interest of the party-relative may be. This is the basis for the assumption that Judge Starley was under a disqualification so long as Bingley was a party in name.

Bingley was a named party only in his capacity as a director of the water district. He was one of a number of directors of the district. Under the necessities of this case, it was not a disqualifying circumstance that Bingley was named as a party in his capacity as director. Likewise, the problem of what interest will disqualify a judge to sit in the case is not to be equated with the problem of what interest will constitute one a necessary party to the suit. The disqualification of Judge Starley will not follow if it is later determined that Mrs. Davies and Mr. Bingley, and others similarly situated, are necessary parties to the pending suit.

No doubt Judge Starley will proceed to trial and the issuance of the writ of mandamus will not be necessary; if he does not do so, the writ will be issued.

NORVELL, J., not sitting.


author: GREENHILL, Justice.

text:
    WESTERN AUTO SUPPLY COMPANY, Petitioner, v. J. E. CAMPBELL, Respondent.
    No. A-9659.
    Supreme Court of Texas.
    Dec. 11, 1963.
    Rehearing Denied Jan. 22, 1964.
    Cantey, Hanger, Gooch, Cravens & Scarborough, Sloan B. Blair and David O. Belew, Jr., of the firm, Ft. Worth, for petitioner.
    Crumley & Hooper, R. E. Rouer, Ft. Worth, for respondent.
   GREENHILL, Justice.

The plaintiff, J. E. Campbell, slipped and fell in a Western Auto store in Fort Worth. Among other things, the jury found that Western Auto was negligent in permitting a portion of its floor to be wet or covered with a foreign substance and that this was a proximate cause of Campbell’s injury. It also found that Campbell had been warned of the condition of the floor and that Campbell failed to heed the warning. The jury found that it was not negligence for Campbell to fail to heed the warning of the condition of the floor and that the danger was not open and obvious. The plaintiff’s motion for judgment on the verdict was granted, and the judgment for plaintiff was affirmed by the Fort Worth Court of Civil Appeals. Tex.Civ.App., 367 S.W.2d 398. The main question before this Court is the legal effect of the jury’s finding that the plaintiff was warned of the danger created by the condition of defendant’s floor.

It will be here assumed that the floor' was in a dangerous condition. While there is a serious doubt that there is any evidence that it had been mopped with anything other than water, it will be assumed that the floor was slippery, and that plaintiff, a business invitee, fell because of the slippery condition of the floor.

It has been held in this state that the occupier of premises owes a duty to use ordinary care to keep his premises in a reasonably safe condition for his invitees or to warn. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368 (1963). The rule has been stated negatively: if the plaintiff knows of the condition and appreciates the danger thereof, the occupier owes no duty to the invitee to warn him of the danger. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 394 (1954).

This Court has at least twice cited with approval Section 343 of the Restatement of Torts. As applicable here that section provides:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereof if, but only if, he
“(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
“ * * *
“(c) invites or permits them to enter or remain upon the land without exercising reasonable care
“(i) to make the condition reasonably safe, or
“(ii) to give a warning adequate to enable them to avoid the harm.
* * ‡ ”

With these principles in mind, we will review the facts as to the warning. Only three witnesses testified in this regard: W. E. Bennett, the manager of the store; John Samuel Post, the salesman who waited upon the plaintiff; and J. E. Campbell, the plaintiff. Johnny Riojas who had mopped the floor was unavailable to testify, apparently because of his being in the Navy.

The store manager, Bennett, described the sales area of the store as approximately 140 feet deep and 40 feet wide. It had a wide center aisle and smaller side aisles, running north and south. Merchandise hung on the walls. Between the aisles were counters, called profiteers, about 10 feet in length, on which merchandise was displayed. Some of the merchandise, such as tires and television sets, was on the floor.

Bennett described the lighting. No argument is here made that the lighting was inadequate. He described the floor as light-colored asphalt tile. Bennett said that one of the employees, Riojas, had several duties including that of mopping and waxing the floors. The floors were waxed about once a month after store hours; but to prepare for the waxing, they were damp mopped during store hours. When this mopping was done, they usually roped off the damp area with a cord and warned customers. The area was not roped off on this occasion, but no issue was given or requested as to whether this failure constituted negligence.

On the day of the accident, Bennett testified that he instructed Riojas to damp mop the floor. Bennett was out of the store when Riojas did the mopping and when the plaintiff Campbell fell. So he could not testify as to either event.

The plaintiff Campbell testified that he entered the store to purchase four items, three of which were located toward the front of the store and one toward the back. He entered the store through its front entrance at the south end and walked some 25 feet down the center aisle into the store where he was met by a salesman [Post], He had been in the store before. He asked for and was handed the three items from the front of the store and “ * * * we put the other stuff on the counter, and he [Post] said, ‘Follow me,’ to get the light to put in the cigarette lighter.” They proceeded to the northeast portion of the store. Campbell said he looked at the aisle and it appeared to be clear.

They got to the counter where the desired emergency light was, and Campbell selected the one he wanted. In returning to the front of the store to look at other merchandise, Campbell slipped and fell. He said he fell near the front end of the counter toward the front of the building. Asked if he heard the salesman Post warn him of the condition of the floor, Campbell said, “No, sir, he did not say it to me, or I did not hear him. * * * And I think I would if he had said it.”

After his fall, Campbell said that he was helped up and was requested to go next door to a doctor to be examined. But he refused because he did not think he was hurt and was embarrassed because of the dirty clothes he had on. So he paid for the merchandise and left the store.

The salesman Post testified that upon meeting Campbell in the store, he asked what items he wanted. “ * * * and then I cautioned him about the condition of the floor because the floor was being scrubbed * * * and it was damp in this particular section where I was going for the merchandise.” It was dry in the area where Campbell and Post first met. Post testified that because there was a danger of a person slipping, and because he knew it was dangerous, he told Campbell that the floor was wet and to be careful. He said the film on the floor would be difficult to see, and for that reason “we cautioned people when they came in the store about the fact that the floor was damp in that area.”

As to whether the plaintiff heard him, Post testified that “I looked right at him and told him the floor was being scrubbed,” and “I know I informed the man about the condition of the floor.” Post heard Campbell when Campbell told Post what he wanted. Campbell did not reply to Post when he was told to be careful, that the floor was wet. There was no evidence that Campbell had any hearing defect or that there were any distracting noises or sounds to prevent Campbell from hearing Post.

Plaintiff’s counsel introduced a previously given statement in which Post had said, “I was walking in front of him, I turned around and said the floor is being scrubbed, so be careful. Then I heard him slip. * * * » post did not remember having made the statement, but it was introduced in evidence. On the trial, Post testified that while he did not tell Campbell to stay where he was, neither did he tell Campbell to follow him back where the merchandise was. When Post went to get the merchandise, he did not watch Campbell follow him, but he heard him fall. It was Post’s recollection that Campbell fell on the way to get the merchandise.

As stated, the jury after having heard this evidence, found that Campbell was warned of the condition of the floor; and there is evidence to support this finding.

A number of courts in other states have passed upon relatively similar fact situations where a warning has been given. In Murray v. Ralph D’Oench Co., 347 Mo. 365, 147 S.W.2d 623 (1941), the lady plaintiff went to the defendant beauty parlor as it opened in the morning. A janitor had just mopped the floor. The beauty operator discovered a “spot” on the floor. She put some Dutch Cleanser on it and told the janitor to stop mopping and clean the spot. The janitor went out to wring his mop, and he told the plaintiff as she came in to “take it easy and look out, it is wet.” The operator told the plaintiff as she arrived that they were cleaning a spot, and pointed it out to her. The plaintiff got safely to her chair in the parlor, but slipped when she came back to make a telephone call. She contended that the slippery area was larger than that which had been pointed out to her. It was held that an instructed verdict should have been granted for the defendant. The court reasoned that the occupier is not an insurer of the plaintiff’s safety and that the basis of liability is the superior knowledge of the occupier of the unsafe condition; and that when the plaintiff knows of the condition or is told of it, there is no liability,

This Murray case represents a line of “no duty” cases. Dean Keeton treats them under “the Restatement Position.” He observes that notwithstanding some dissatisfaction with the doctrine, “it must be admitted that there is abundant authority for the proposition that the true ground upon which the occupier’s liability for personal injuries arising from dangerous conditions on land rests is his superior knowledge of the dangers thereon.”

Another reasoning reaching the same result is found in Bohlen, Studies in the Law of Torts (1926). Bohlen states:

“The owner’s duty rises no higher than that of making the appearance conform to the reality, of making the condition as good as it looks, or of bringing to the knowledge of the visitor that it is as bad as it is. The visitor, having no right to enter the premises, is not entitled to find it safe for his visit; he is only entitled to know its real condition so that he may intelligently make up his mind to accept or reject the owner’s permission to enter it.” Bohlen, supra, page 183. Cf. Harvey v. Seale, Tex., 362 S.W.2d 310, 312-313 (1962).

Another line of reasoning is illustrated in Baker v. Clark, (1958) 233 S.C. 20, 103 S.E.2d 395. There, the plaintiff, accompanied by her daughter, entered defendant’s department store to use the rest room. She was considered an invitee. The store had just opened, and the floors had been mopped with a cleaning .fluid. The hardwood floors were new and freshly polished. The plaintiff testified that a saleslady had told her to be careful, that the floors had been “shellacked” but were dry. Her daughter said the saleslady told them that they had just finished waxing the floor and to be careful. Another witness said the warning was that they had just cleaned the floor and to be very careful. The plaintiff slipped and was injured. The trial court instructed a verdict for defendant, and that judgment was affirmed. The court rested its decision on two grounds: the proprietor owed a duty to exercise reasonable care to give warning of hidden dangers or unsafe conditions of which the proprietor knew or should have known in the exercise of reasonable supervision and inspection; and this warning was given. It held further that since plaintiff was warned, she assumed the risk; that she impliedly agreed to look out for herself. [Citing Restatement of Torts, § 893; Prosser, Torts, 303-314 (2d ed.) 1955]. To the same effect is Hogan v. Metropolitan Building Co., 120 Wash. 82, 206 P. 959 (1922), where a shoe store salesman warned a customer, wearing newly purchased shoes, that there was a decline or step-down in the sidewalk just outside the door of the store.

Other courts simply treat the giving of an adequate warning as negating any negligence on defendant’s part as a matter of law. Hordes v. Kessner, 159 N.Y.S. 891 (App.Div., Sup.Ct., 1916); Sadler v. Lynch, 192 Va. 344, 64 S.E.2d 664 (1951).

The Restatement view is criticized by some writers including Harper and James. They would treat the subject purely on the basis of negligence and contributory negligence rather than on “no duty.” In treating the ordinary warning cases, those authors state that a warning may, as a matter of fact, suffice to remove the danger, “as where a customer, not hurried by crowds or some emergency, and in possession of his faculties, is told to ‘watch his step’ or ‘step up’ at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendant’s negligence. Here again, plaintiff’s recovery would be prevented by that fact no matter how careful he was.”

These and other views were before this Court in McKee v. Patterson and in the recent Halepeska decision. But because neither of those cases involved the giving of a warning, we have, in this case, re-examined the authorities where a warning has been given. We adhere to the “no duty” rule as announced in the Halepeska decision: if there are dangers which are not open and obvious, the occupier is under a duty to take such precautions as a reasonable prudent person would take to protect his invitees therefrom or to warn them thereof. 371 S.W.2d 368, 378 and 380.

As a general rule under that doctrine, when such a warning is given, the occupier has discharged his duty. As stated in the Halepeska opinion, “ * * * if the occupier owes the plaintiff no duty, that is all that need be found to defeat plaintiff’s recovery.” Similarly, where there is a duty, and that duty is discharged by giving warning, the recovery by the plaintiff is defeated; and the finding that plaintiff was not contributorily negligent becomes immaterial. A case directly in point is Capobianco v. Yacovelli Restaurant, Inc., 360 S.W.2d 302 (Mo.App., 1962). There, an air conditioner repairman, an invitee, was warned not to stand on the wooden cover of a stairwell leading into a cellar. He did stand on it, it broke, and he fell into the cellar. He contended that he was not contributorily negligent, and the jury so found. A judgment in his favor was reversed. The occupier owed him the duty to keep his premises safe or to warn of dangerous conditions. The asserted basis of the occupier’s liability there was his superior knowledge of unreasonable risk of harm. It was held that the defendant breached no duty to the plaintiff, which established “no negligence” on defendant’s part. Therefore the contributory negligence finding was held to be immaterial.

That the giving of warning discharges the occupier’s duty in Texas was recognized by the Fifth Circuit in Gulf Oil Corporation v. Bivins, 276 F.2d 753 (1960). There the plaintiff who was injured was never personally warned by anyone. A warning of the dangerous condition had been given by Gulf to the plaintiff’s employer (an independent contractor) and to plaintiff’s foreman. It was held that Gulf’s only duty was to warn the plaintiff’s employer. A judgment for the plaintiff against Gulf was reversed and rendered. The dissent by Judge Brown was not that an adequate warning would not discharge the defendant. His view was that it was wrong to deprive the plaintiff of a recovery because his employer had been warned where the plaintiff himself had not been warned. Such a case is not before us.

Plaintiff argues that to defeat plaintiff’s recovery the warning must be heard, understood, and comprehended. In several cases the adequacy of the warning has been left to the jury. See, for example, Gulf Production Co. v. Adams, 49 S.W.2d 889 (Tex.Civ.App., 1932, writ refused), where there were loud noises to explain plaintiff’s failure to hear the warning; Harris v. Simon, 32 S.C. 593, 10 S.E. 1076 (1890), where warning of a dynamite blast was given in a low voice from down in a mine. To the same effect is Beauchamp v. Saginaw Mining Co., 50 Mich. 163, 15 N.W. 65 (1883). Other situations could be conceived, such as where the plaintiff was deaf, mentally deficient, was an infant, or did not understand the English language. We express no opinion as to those situations.

Here, however, Campbell was not shown to have any deficiencies. The warning given was of the precise danger which was to be anticipated and which caused the injury. There was no emergency. There was no evidence of any noise or distraction to keep plaintiff from hearing the warning. The plaintiff Campbell and the salesman had no difficulty in hearing or understanding each other in any other respect

The special issue given to the jury was not simply whether the salesman spoke words but whether the salesman warned Campbell. The word “warn” is a transitive verb taking an object; i. e., a warning was given to Campbell, and not simply uttered by the salesman. There was no objection by either party to the issue as submitted. Since the issue, “Did defendant’s salesman warn Campbell of the condition?” was submitted by the court to the jury, it was incumbent upon plaintiff to have requested issues to negative the adequacy of the warning, if this was his position.

Plaintiff’s counsel did request an issue as to whether Campbell heard the statement of the salesman. The trial court refused to submit the issue, and that action was not preserved as error by plaintiff. Moreover, the request for the submission of that issue was made conditional upon the submission of an issue as to whether Campbell was told by defendant’s salesman of the condition of the floor in defendant’s store. The trial court submitted an issue more onerous to defendant: that is, to obtain a favorable finding under the issue as submitted, defendant had to convince the jury not only that the words were spoken but that a warning was given to Campbell. We hold that the jury finding that the salesman warned Campbell of the condition is controlling in this case. Rule 279, Texas Rules of Civil Procedure.

The judgments of the courts below are reversed, and judgment is here rendered for Petitioner.

      . Section 343, Restatement of Torts is cited with approval in Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, 376 (1948).

      . Page Keeton, “Personal Injuries Resulting from Open and Obvious Condition,” 100 U. of Penn.L.Rev. 629, 633 (1952).

      . Page Keeton, “Assumption of Risk and the Landowner,” 22 Louisiana L.Rev. 108, 116 (1961).

      . James, “Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees,” 63 Yale L.J. 604, 628 (1954); 2 Harper & James, The Law of Torts, 1494 (1956).

      . Harper & James, The Law of Torts, (1956) at 1492. The text continues to give illustrations of fact situations in which the authors consider that a warning would not satisfy defendant’s duty such as icy stairs, walks near high tension wires, and a slippery floor.

      . McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368 (1963).