author: PALMORE, Judge.

text:
    STATE PROPERTY & BUILDINGS COMMISSION OF the DEPARTMENT OF FINANCE, etc., Appellants, v. H. W. MILLER CONSTRUCTION COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Paul E. Tierney, Melbourne Mills, Jr., Frankfort, for appellants.
    William H. Bixler, Hughes, Clark & Burke, Covington, for appellee.
   PALMORE, Judge.

The State Property and Buildings Commission (KRS 56.450) sued appellee, H. W. Miller Construction Company, for damages in the amount of $4,447 resulting from an alleged breach of contract. At the close of plaintiff’s evidence the trial court sustained defendant’s motion for a directed verdict and entered judgment accordingly. The commission appeals.

The briefs present two issues, (1) interpretation of the contract and (2) sufficiency of the proof of damages.

The contract, awarded to Miller in June of 1955, covered the construction of a state office building in accordance with detailed specifications, drawings, and other incorporated documents for a total price of $156,900. The work was completed, payment was made and the state proceeded to occupy and use the building. In 1960 certain water pipes laid under concrete slab in an unexcavated portion of the structure began to leak, causing water to flow into an adjacent basement area. Investigation disclosed that the pipes had not been enclosed in a sonotube duct as required by the contract drawings and had rusted out.

The contract specifications called for foam glass insulation on the pipes but made no mention of any further type of casing. The detailed drawings, on the other hand, called for the sonotube casing but made no reference to the foam glass insulation. The contractor did install ■ the foam glass insulation around the pipes but did not provide any further encasement. He (it) now contends in substance that there was an ambiguity as between the written specifications and the detailed drawings, which must be resolved against the state as the author of the contractual instruments, and that he reasonably construed them to mean that he was to provide either the foam glass or the sonotube duct but not both.

As explained in the testimony, foam glass is an insulating material only. It is not waterproof and will -not protect against moisture. The piping was steel and, as it was to be laid in the ground, had to he protected against water. That was the purpose of the sonotube duct, which is impervious to moisture. The drawings show clearly that one 16-inch sonotube duct was to house three small steel pipes and one copper tube. As illustrated, each of the three steel pipes is surrounded by a concentric hatch-marked area indicating some type of wrapping or cover. When the drawings and specifications are considered together (and it is not disputed that both are part of the contract), especially in the light of the testimony explaining the separate functions of tire insulation and the sonotube duct, there is no ambiguity. Moreover, Article 52 of the “General Conditions” of the contract provides in part as follows:

“Anything called for in the specifications and not shown on the drawings or shown on the drawings and not called for in the specifications, shall be included in the Contractor’s work, the same as if included in both.”

It is our conclusion that the agreement required foam glass insulation on each of the underground steel pipes and a waterproof sonotube duct encasing the whole. Breach of the contract in this respect was proved.

It was further proved that upon discovery of the defect Miller was requested to remedy it and failed to do so, whereupon the state designed the necessary repair work, awarded a contract in the amount of $4,447 for its performance, and paid out that sum on completion of the job. There was no proof of market value of the building with the defective condition as against what its market value would have been without it.

The parties are not so much in disagreement with respect to the proper measure of damages as they are with regard to the way in which that measure applies to the facts of this case. However, for the sake of clarity it is well that we review the law before more closely considering the particular facts.

“When the building is completed but the construction is in some respect defective, the principle upon which damages are to be estimated will depend on whether the defect can be remedied by the expenditure of a reasonable amount of money. If in view of the expense it is reasonable to remedy the defect, then the measure of damages is the cost of remedying it. If, on the other hand, the value of the building with the defect is greater than its value without the defect less the cost of applying the remedy, then the measure of damages is the diminution in the value of the building by reason of the defect.” Sedg-wick on Damages, § 644 (Vol. 2, p. 1293). See also on this general subject 13 Am.Jur. 2d 79 (Building and Construction Contracts, § 79); Restatement, Contracts § 346(1) (a) ; and annotation, Cost of correction or completion, or difference in value, as measure of damages for breach of construction contract, 76 A.L.R.2d 805.

From an examination of the numerous decisions of this court in which the question was discussed it is apparent that time and again it has been argued in vain that a “difference in value” instruction was unauthorized because the evidence showed only the cost of remedying the defect. Cf. Mikkelsen v. Fischer, Ky., 347 S.W.2d 525, 528 (1961); Alvey v. Kern, Ky., 354 S.W.2d 516, 518 (1962). Probably this is because, that being the only form of instruction on the point set forth in Stanley’s Instructions (§ 216), the courts have been reluctant to give one that is more appropriate. The form in question was taken from Taulbee v. Moore, 106 Ky. 749, 51 S.W. 564, 21 K.L.R. 378 (1899), but as pointed out in footnote (1) to § 216 of Stanley, the court later commented in Forbes v. Hunter, 31 K.L.R. 285, 102 S.W. 246 (1907), that perhaps it would be better to tell the jury that the measure of damages is the sum required in order to make the building conform to -the contract. And indeed it would be. Confusion and misunderstanding have arisen from our persistence in approving an instruction based on the one measure when the evidence is devoted entirely to another.

There is no question that in this state the real measure of damages for defective performance of a construction contract is the cost of remedying the defect, so long as it is reasonable. Mikkelsen v. Fischer, Ky., 347 S.W.2d 527, 528 (1961); Ward v. Qualls, 229 Ky. 662, 17 S.W.2d 739, 740 (1929); Young v. Cumberland County Educational Soc., 183 Ky. 625, 210 S.W. 494, 496, 6 A.L.R. 135 (1919). As we construe the relationship between market value and cost of remedying the defect, the latter becomes unreasonable only (a) if it exceeds the difference between the market value of the building as it should have been constructed and its market value as actually constructed (assuming the defective condition to be known), or (b) if it amounts to more than is reasonably necessary in order to bring the building into substantial conformity with the contract.

In simple terms, the measure of damages is the amount that is reasonably necessary in order to make the building conform to the requirements of the contract, but in no event to exceed the difference, if any, between its market value as it should have been constructed and its market value as it was actually constructed.

Pursuing this subject one step further, as it is necessary to do in order to harness this case to it, when the owner has proved what it reasonably cost him to make the building conform to the contract it should not be necessary for him to go into the question of market value unless that question is raised by the defense. In the absence of evidence to the contrary it would ordinarily be presumed (and our decisions have tacitly recognized this) that as between a willing seller and a willing buyer of a new building known to be in need of certain repair work the anticipated cost of the remedial work would reduce the price by an equivalent amount. So, unless there is evidence to inject it, the question of market value need not be considered, and the commission’s evidence in this case was not deficient in that respect.

We are in agreement with Miller’s contention that the damages should not exceed the sum that is reasonably required in order to put the owner in the same position in which he would have been had the contract been performed. A stone wall, for example, could not be built and charged to the contractor because he failed to put up a wood or wire fence. The owner can do only that which is reasonably required. The bone of contention in this case is that when the state replaced the pipes it made a different and better arrangement. It used copper instead of steel pipes and laid them in a concrete trough with a removable cover on top instead if burying them in the ground and replacing the concrete slab. However, with the new method of installation it was not necessary to use insulation or to provide any waterproofing, and it was testified that even though the resulting condition was superior to the original design the comparative costs would be substantially the same. If that is true, the difference between the new construction and the original contract design could not be of material significance to the defendant contractor.

It was proved also that after removal of that portion of the concrete surface covering the rusted pipes it would not have been practically possible to make the new installation according to the original plans, because the remainder of the concrete slab would be left without sufficient support. When it is no longer feasible to make a defective building conform to the original contract specifications, if the de.fects are nevertheless remediable in some other manner the rule of reason applies. The owner may do what is reasonably necessary under the circumstances. In this case the commission has proved enough to go the jury. The contractor has not yet put on any evidence. He can challenge the reasonableness of what has been done. It is further possible that he may produce testimony to show that the remedial work, even though reasonable and necessary under the circumstances, actually enhanced the market value of the building beyond what it would have been worth had it been constructed pfiginally in conformity with the contract. If so, he should be protected by an instruction entitling him to a credit in the amount of such enhancement.

The judgment is reversed with directions for a new trial.

      . The trough called for by the new design was so constructed as to provide, by its perpendicular wall, a footing to support the edge of the truncated slab. The import of the testimony was that an earth fill covered over by new concrete laid flush with the old slab would not have sufficed.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    UNITED STATES FIDELITY & GUARANTY CO. et al., Appellants, v. Sue Rhea EASLEY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    William B. Byrd, Paducah, for appellants.
    B. M. Westberry, and William' C. -Allen, Marion, for appellees. . • ■ ' • :
   CLAY, Commissioner.

In this workmen’s compensation case th,e widow of a salesman who worked for appellant Rodgers & Rodgers was awarded death benefits, and the award was confirmed on appeal to the circuit court The principal questions raised are (1) .whpther the deceased was an. employee or an independent contractor, and (2) whether his death arose out of and in the course of his employment. We think the answer,to the second question is decisive of this controversy.

The appellant employer was a distributor of aluminum products. The deceased was engaged as a salesman on- a profit-sharing basis. He had no expense allowance, regular schedule or working hours. He usually reported into the office early in the morning to pick up the names of prospects hut he had no regularly assigned office or other duties. Without reciting additional facts concerning the nature of his employment, a serious question is presented as to whether he performed his salesmanship services as an independent contractor. It is unnecessary to, and we do not, decide that question. We will assume that he was an employee.

On the day involved the deceased had been in his employer’s office early in the morning (between 7:30 and 8:30 a. m.). There was no evidence indicating where he went or what he did at any time during the rest of the day. He was killed between 4:30 and 5:00 o’clock in the afternoon, while driving his automobile, at a railroad crossing approximately 45 miles from his employer’s place of business. His employer, the office manager, and the deceased’s wife disclaimed any knowledge of where he was going or the purpose of this trip.

The place of the accident was within the “sales area” he was authorized to cover but this area was quite extensive. The office manager testified that, for some unexplained reason, she was expecting him back in the office that evening. However, she testified that “at no time” was he supposed to be in the office before it closed, and she also testified that on that particular day she did not know “where he was going, or where he had been, or what mission he was (on)”.

The burden was on the claimant to establish that the accident causing the death arose out of and in the course of the deceased’s employment. KRS 342.005; George T. Williams & Sons v. Coffey, Ky., 243 S.W.2d 661. There is a complfete lack of any evidence of substance to support such a finding. Since the deceased had no regular working hours, there is no reason to infer that this trip was a business one. We do not even know that he did not engage in other business enterprises or work for others. The time of the accident suggests that it could well have been after the deceased’s daily quitting time (assuming he had been working that afternoon). Or, of course, this could have been a personal trip on a private matter.

That this journey was in any way related to the deceased’s employment is entirely speculative. We have a total failure of proof to support the finding of the Board on this issue, and consequently the award cannot be sustained. See George T. Williams & Sons v. Coffey, Ky., 243 S.W.2d 661.

The judgment is reversed with directions to remand the case to the Workmen’s Compensation Board with directions to dismiss the claim of appellee Easley.


author: WADDILL, Commissioner.

text:
    Wince TRIMBLE, Sheriff of Johnson County, et al., Appellants, v. BOARD OF EDUCATION OF PAINTSVILLE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.

      Tackett & Tackett, Prestonsburg, for appellants.
    J. K. Wells, Paintsville, for appellees.
   WADDILL, Commissioner.

This action asked for a declaration of rights concerning the fee the appellant-Sheriff could lawfully charge the appellee-School Board for collecting its taxes from January 1, 1958 to January 1, 1962. The Sheriff urged that he was entitled to three per cent of the amount of the taxes collected while appellees contended he was due only one per cent commission. The trial court found that the reasonable cost of collection of these taxes was one per cent for 1958 and one and three-tenths per cent for each of the following three years and entered judgment accordingly.

On this appeal the Sheriff concedes that he cannot recover from the School Board an amount in excess of the reasonable cost of collecting its school taxes (Board of Education of Carter County v. Greenhill, Ky., 291 S.W.2d 36), but he argues that the sum allowed him by the trial court is erroneous because it is less than the actual cost of collecting these taxes.

The testimony on behalf of the Sheriff does tend to support this contention. There is, however, other evidence to the effect that the Sheriff and his deputies had not devoted the time and expenses they claimed to the collection of these taxes. Apparently the court chose to accept the latter evidence and the allowance it made is supported by adequate evidence. Hence, under CR 52.01 we cannot disturb the determination made by the trial court.

The judgment is affirmed.


author: HUNTER, Judge.

text:
    NORTH KANSAS CITY MEMORIAL HOSPITAL, Respondent, v. Bertha Mae WILEY, Administratrix, Estate of William A. Wiley, Deceased, Respondent, and Group Hospital Service, Inc., Appellant.
    No. 23785.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.

      Harry L. Thomas, Max O. Bagby, Kansas City, for appellant.
    James P. Aylward, William B. Teasdale, James P. Aylward, Jr., Kansas City, for respondent.
   HUNTER, Judge.

This is a suit by plaintiff-respondent, North Kansas City Memorial Hospital in the sum of $1,091.81 against defendant, William A. Wiley, for services rendered him while he was a patient at the hospital. In turn, Wiley added as defendant (appellant) Group Hospital Service, Inc., by reason of its assumption of a certain hospitalization contract originally issued by Health Service, a corporation, earlier a party but later dismissed from this action. The jury, as directed by the court, found for plaintiff hospital and against defendant Wiley in the sum of $1,081.30, and found for defendant Wiley on his cross claim against defendant Group Hospital Service, Inc., in the sum of $669.50. Group Hospital Service, Inc., hereinafter referred to as Blue Cross, has appealed from the cross claim judgment against it.

The Blue Cross policy is of the usual type and provides certain benefits, payments and services for hospitalization of the subscriber “except as limited in Article IV or excluded in Article V.” Article V contains the following exception from the general benefits provided: “Article V — Benefits Not Provided. Benefits shall not be provided for: * * * (b) Hospitalisation for any occupational condition, ailment, or injury arising out of and in the course of employment, or which is furnished to a Subscriber under the laws of the United States or any state of political subdivision thereof.” (Italics ours.) Blue Cross denies liability for Wiley’s hospital expenses on the ground that these expenses were occasioned by an injury he received arising out of and in the course of his employment and these were exempted from policy coverage under Article V thereof.

On June 4, 1958, Wiley in the course of his employment suffered an unusual and abnormal strain to his low back. This back condition seemed to worsen. On July 5, 1958, he was hospitalized for that injury in North Kansas City Memorial Hospital and remained there continuously as a patient from July 5, 1958, until August 21, 1958, when he was discharged therefrom. The admitting diagnosis was probable disc, lumbar and hernia; and the final diagnosis was herniated lumbo sacral disc, congenital bladder, neck contracture, prostatitis and cystitis.

At the trial on June 25, 1962, none of the attending physicians or other doctors were called as witnesses. Rather, the evidence touching the issue of the allocation of Wiley’s hospital expenses consisted of the hospital reports and the testimony of the hospital administrator.

According to the hospital records, “patient admitted for back pain, with radiation down into legs”. The next day, July 6, he was experiencing trouble passing urine. A portion of that day’s hospital report read “seen in consultation by Dr. Charles Vilmer and Dr. Revis Lewis for back symptons and by Dr. Andrews for urinary obstruction and infection.” On July 10, his temperature rose to 102 degrees with a diagnosis of urinary infection. On July 12th a thrombosed painful hemorrhoids condition was diagnosed and a two times normal size prostate was noted. On July 14th, the hospital records reported, “Problem at present is whether care of prostate and diagnostic tests should precede any definite surgical therapy of disc, and if so, whether either or both fall under compensation.” On July 15th, the hospital report stated, “Complaining of soreness over the hypogastric region. Catheterized 1270 cc. obtained. Bladder spasm during catheterization. Rectum still reveals hemorrhoids. Prostate enlarged. Dr. Andrews to see and go ahead with GU workup and therapy. Treatment for disc will be deferred during this.”

The above is but partly illustrative of the contents of some sixty-seven pages of hospital reports concerning Wiley, his complaints, medical examinations, medical diagnosis and medical treatments, including therapy, x-rays, medicines and injections, between July 5 and August 21, 1958, while a patient there.

Appellant Blue Cross’ first contention is that the trial court erred in permitting Witness Rich, the hospital administrator, over objection, to testify from an examination of the hospital records that charges in the amount of $453.72 were applicable to back injury and that charges in the amount of $669.50 were not for the treatment of Wiley’s back and spine injury but were for other injury or illness, namely, the genito-urinary system. It is Blue Cross’ position that Witness Rich, who was not a medical doctor but rather whose only possible relevant experience was as hospital administrator with several years experience in managing the hospital’s drug store, was not and could not be qualified as a medical expert and that only a medical doctor would be qualified to make the judgments and render the opinions to which Witness Rich testified. Witness Rich based his expert testimony on his interpretation of the medical records of the North Kansas City Memorial Hospital concerning Wiley. Rich testified, “It (hospital record) tells in essence what has happened to him (Wiley) during the time that he was in the hospital. It is made by doctors, laboratory technicians, nurses, all of those who work at the hospital and have authority to enter on this the results of their work on Mr. Wiley.”

The general definition of an expert witness is one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of deducing correct conclusions. Giambelluca v. Missouri Pacific Railroad Company, Mo.Sup., 320 S.W.2d 457, 463; Gaddy v. Skelly Oil Co., Mo.Sup., 259 S.W.2d 844; McAnany v. Henrici, 238 Mo. 103, 141 S.W. 633.

Where the subject is a medical one such as the cause or effect of disease or injury on the human system, which is not a subject of common knowledge, the proof must be by a witness or witnesses possessing special knowledge and skill in the science of medicine. This is especially so where the case presents issues involving pathology of disease and subjective effects of injury through trauma. See, 46 C.J.S. Insurance § 1357(c), pages 537-538; Ryan v. Sheffield Car & Equipment Co., Mo.App., 24 S.W.2d 166. This is in accordance with the general rule that except to the extent the physical condition of a person is open to ordinary observation by persons of common experience, opinion evidence concerning the diagnosis, causes and effect of diseases, ailments and kindred matters of medical practice is limited to the opinions of experts in the technical field involved— that is, of physicians. 20 Am.Jur., Evidence, Section 862, page 722; Carlsburg v. Wesley Hospital, 182 Kan. 634, 323 P.2d 638.

In deciding whether the use of certain drugs was for Wiley’s back injury or for his genito-urinary system and unrelated to the back injury Rich stated, “Its an impression, an impression or a judgment that we (Rich) obtain from running a drug store. I run a drug store. * * * I have some knowledge of the drugs that are used.” As to the allocation of the daily charge for hospital room and board Rich stated, “ * * * when did the room and board charge become applicable to the back injury and when did it become applicable to the genito-urinary system. Now, we can tell the infection from the nursing notes as to the elevation in temperature and we can tell it from the remarks the physician makes in his daily progress notes, and we can tell another thing about vrhat kind of medicines the physician was ordering. By putting these three together I have made a judgment as to at what day the room and board, as an example, would appear to become applicable to genito-urinary problems these other things not being present, and the progress notes indicating the physician’s concern and treatment for the back, then the room and board in that, on that particular day or series of days would become applicable to the back injury.” * * * “I assigned his charges to the back when actually he had an in-dwelling Foley catheter for his genito-urinary problems, but it was according to the doctors’ progress notes and nursing notes, the medications he was on, it was of minor significance as compared to the other, and this bounced back and forth.” * * * “I’m sure that every day that Mr. Wiley was in the hospital he was being treated to some degree for his back injury, whether it was just lying on bed boards or whether it was pelvic traction, whatever it might be, I’m sure that there was some element of treatment for his back. At the same time there was elements on almost every day of the treatments of this genito-urinary — .”

There was no allocation or designation in the mentioned hospital records or the resultant billings as to what expenses were for the back injury and its effects as contrasted with the genito-urinary system ills. Witness Rich alone made these allocations of various hospital charges by indulging in medical judgments and medical opinions and in some instances, speculation, based on the sixty-seven pages of hospital reports of the doctor, nurses and other hospital personnel concerning Wiley. We are convinced that he was not qualified to do so. The medical determinations which he necessarily had to make in order to allocate the expenses as he did were not a matter for lay opinion, nor a matter for one whose experience was not that of a physician but rather that of a lay administrator of a hospital who also had some experience with drugs as a result of having operated a drug store.

It is the general rule that the qualification of one presented as an expert witness on a given subject is a matter resting primarily in the sound discretion of the trial court, and its decision thereon is not to be set aside in the absence of showing an abuse of discretion. Christian v. Jeter, Mo.Sup., 287 S.W.2d 768; Yocum v. Kansas City Public Service Co., Mo.Sup., 349 S.W.2d 860. However, where, as here, the record clearly discloses the witness was not an expert in the matters on which he endeavored to testify as an expert, the appellate court is constrained to rule and we do rule that the trial court abused its discretion and erred in permitting the testimony over proper objection.

Appellant’s other contentions of error concern the trial court’s giving over its objection Instruction No. 2 and Instruction No. 3 as amended by the court, and the refusal of the trial court to give Instruction No. 3 as submitted by appellant. However, the briefs filed cover these contentions of error well and they are of such a nature that on retrial they should not again arise. It would serve no useful purpose to discuss them in this opinion.

We note one basic problem inherent in the instructions which should be discussed in view of the necessity of remanding this cause for a new trial on the cross claim of Wiley against Blue Cross. That problem involves the proper allocation of Wiley’s hospital expenses. It is clear that those hospitalization expenses occasioned solely by Wiley’s back injury and its treatment are outside the Blue Cross policy coverage for they fall within the “Benefits not provided for” clause. They are admittedly expenses of hospitalization for an “injury arising out and of and in the course of em-ployement.” Cf. Moeller v. Associated Hospital Service, 304 N.Y. 73, 106 N.E.2d 16; Cash v. America Health Insurance Corporation, 203 Va. 719, 127 S.E.2d 119.

But what of those expenses, such as the hospital room and board charge of $15.50 per day, and the cost of certain drugs, treatments, etc., which were occasioned to some degree by both his back injury and his genito-urinary illness. For example, who is responsible for the hospital room and board daily' charges during those days when to some degree he was being examined, or treated, or being cared for or observed for. both his back injury and his genito-urinary illness. Are they to be pro-rated, or to be paid entirely by Blue Cross or by Wiley? Are they to be allocated according to whether they were occasioned primarily by the back injury and its treatment or merely were incidentally beneficial to that injury?

Neither appellant nor respondent has cited any case touching this question which inescapably will be presented on retrial of this case. It is apparently a question of first impression in this state and elsewhere. While we have not found any case specifically ruling it, the thrust of our answer is established in Hall v. Spot Martin, Mo.Sup., 304 S.W.2d 844. There claimant was injured (herniated disc) in the course of his employment and hospitalized therefor. While in the hospital it was discovered he also had cancer of the prostate. The Supreme Court stated, “The dispute herein relates to items for hospital, surgical and medical services rendered in an effort to make Mr. Hall more comfortable and to relieve him from pain. As we have heretofore stated, there is substantial evidence to the effect that the pain from which Hall suffered was caused both by the disc injury and by the cancer. The Commission found that Pacific ‘is liable to this employee * * * for all the medical and hospital expenses incurred by employee to cure and relieve him of his disability relating to his back * * *.’ It is evident that in ordering the payment of the instant expenses the Commission had the view that such services were necessary in order to relieve the employee from pain resulting from the injury and disability to his back, and the fact that such services may have also given relief from the pain caused by the cancer would not relieve Pacific from liability therefor. No case has' been cited which deals with a situation of that kind and we have not found any. However, after. reviewing the evidence, the findings of the Commission, and the provisions of the statute heretofore cited, we have concluded that we cannot say that the instant finding was against the overwhelming weight of the evidence, or that the Commission acted in excess of its powers in directing the payment of the disputed items.”

The insurance .policy in the case before us was issued by Group Hospital Service, Inc., commonly ■ known as Blue Cross and Blue Shield. Its’ contracts are to be construed in the same general manner as insurance policies issued by any commercial insurer. Annotation, Blue Cross-Blue Shield—Coverage, 81 A.L.R.2d 928; Slomovic v. Tennessee Hospital Service Asso., 203 Tenn. 380, 313 S.W.2d 265. Insurance policies, like other contracts, receive reasonable interpretations, and in construing the terms of a policy the court discharges its full duty when it ascertains and gives effect to the intention of the parties as disclosed by their contract. Lynch v. National Life & Accident Ins. Co., Mo.App., 278 S.W.2d 32.

The Blue Cross policy admittedly covered Wiley’s mentioned -hospital expenses unless they, -fell within the. quoted exception of “Benefits not Provided For.” It is the general rule that if the insurer pleads an exception to the general liability clause of the insurance policy. ⅛ is. deemed thereby to have set up. an affirmative defense and assumes ,and. has the duty of proving it. Gennari v. Prudential Insurance Company of America, Mo.Sup., 335 S.W.2d 55(4); Smith v. Industrial Hospital Assoc., 194 Or. 525, 242 P.2d 592; Wolf v. Washington Hospital Service Assoc., 52 Wash.2d 518, 326 P.2d 1015.

As we’ interpret- the Blue ' Cross policy, in Article V ■ it exempted from its general coverage only those’ hospitalization benefits or expenses occasioned solely by injury arising out of and in the course of employment. Thus, where the hospitalization benefits or expenses are not occasioned solely by an injury arising out of and in the course of employment but are occasioned by a combination of such an injury and another injury, illness or disability not arising out of and in the course of the employment, the quoted exemption clause of Article V does not relieve Blue Cross of liability for such hospitalization benefits or expenses.

Our interpretation is in accordance with the usual rules of interpretation for insurance contracts. Missouri cases are legion which hold that, if there is reasonable doubt, or uncertainty as to the meaning of the language used in a policy of insurance and it is fairly susceptible of interpretation in favor of the insured, such meaning will be adopted. This is because it is the intent expressed in the policy that is to control and if the policy is reasonably susceptible of two or more interpretations, that which will sustain the insured’s claim must ’be. adopted. Weinberg v. Globe Indemnity Co., Mo.App., 355 S.W.2d 341, 1. c. 347; Nationwide Mutual Ins. Co. v. Schilansky, D.C.Mun.App., 176 A.2d 786; Gage v. Connecticut General Life Ins. Co., Mo.App., 273 S.W.2d 761, 47 A.L.R.2d 1234. It is a general rule of law that a contract or a policy of insurance should be given a liberal construction so as to uphold it and accomplish the purpose or object for which it is made, rather than a strict technical construction which may defeat such purposes. Grafton v. McGuire, 362 Mo. 882, 245 S.W.2d 69, 44 C.J.S. Insurance § 297, page 1165; Davis v. Liberty Mutual Ins. Co., 8 Cir., 308 F.2d 709.

We do not perceive in the policy or in Article V thereof any intent to prohibit possible overlapping coverages for hospitalization benefits for it is possible to be hospitalized for injury arising out of and in the course of employment and yet for such injury not to be covered by Workmen’s Compensation benefits, as in the case of minor employers who have not accepted the benefits of the compensation act, or employments that for some other reason are not under the Workmen’s Compensation Act. Even in the present case the testimony was that Mr. Wiley settled his Workmen’s Compensation case in such a manner as not to include hospitalization expenses, a fact we deem to be immaterial. See, Annotation, Insurance-Workmen’s Compensation, 27 A.L.R.2d 946.

Respondent Wiley has devoted a portion of her brief to the question of estoppel. However, defendant Wiley did not offer any instruction or take other appropriate action submitting that question and thereby abandoned it at the trial. Hence, such question is not now before us for review.

The judgment appealed from is reversed, and the cause is remanded for a new trial on the cross claim.

All concur.

      . William A. Wiley died April 28, 1964, 'while his appeal was pending and his widow, Bertha Mae Wiley, was appointed administratrix of his estate and substituted as respondent in this cause.

      . While in reaching. our . conclusions we have not considered defendant Wiley’s Exhibit G, a printed explanation of the Blue Cross policy. We believe they are worth noting:
      “You will be paid a weekly benefit — according to the Schedule on Pages 14 and 15 while you are disabled and prevented from working, provided that you are under the care of a doctor and your disability results from a non-occupational accident or disease. Benefits commence on the first day of an accident or the eighth day of illness and
      are payable up to a maximum of 26 weeks for any one disability.
      “If you are disabled as a result of an occupational accident or disease and the weekly rate of Workmen’s Compensation payments to which you are entitled is less than the amount you would receive for a non-oceupational disability under this Plan, the Plan will make up the difference for a period up to a maximum of 26 weeks.
      “You need not be confined to your home to receive these benefits.”


author: STONE, Judge.

text:
    MIDWESTERN MACHINERY COMPANY, a corporation, Plaintiff-Appellant, v. G. H. PARSONS, Defendant-Respondent.
    No. 8341.
    Springfield Court of Appeals. Missouri.
    Dec. 18, 1964.

      Pinnell & Monroe, Monett, for plaintiff-appellant.
    James A. Dunn, Carthage, for defendant-respondent.
   STONE, Judge.

This is a court-tried replevin action, in which plaintiff Midwestern Machinery Company, a Minnesota corporation (hereinafter called Midwestern), appeals from an adverse judgment that defendant G. H. Parsons retain possession of a 24" Bullard vertical turret lathe, Serial No. 15649, found to have been of the value of $2,000 at the time of trial.

In February 1962, Parsons leased a building in Carthage, Missouri, to Harrel Owens and financed him in the establishment of a machine shop. Pete Page, an independent machine tool dealer at Joplin, took Owens to Midwestern, a machine tool dealer at Minneapolis, and Midwestern sold to Owens (under his trade name of Ozark Metal Goods) several items, among them a used 24" Bullard vertical lathe, Serial No. 8917 (hereinafter referred to as the first lathe). Payment for this (and other) machinery was made from funds advanced by Parsons, who shortly thereafter took from Owens a chattel mortgage (hereinafter referred to as the old chattel mortgage) covering “the entire machine shop,” including the first lathe.

The first lathe was a “government surplus” machine which had been acquired by a Minnesota school and subsequently had been consigned to Midwestern for sale. Under applicable governmental regulations, state institutions in Minnesota had a prior right to purchase this lathe if the Minnesota, school disposed of it within a specified period; and, when a state reformatory hid on it, the State of Minnesota demanded its return. Thus, as witness O’Heron, Midwestern’s secretary-treasurer, frankly admitted upon trial, “we got ourselves in a hind” and it became necessary for Midwestern to arrange for return of the first lathe.

Accordingly, O’Heron explained the situation to Owens over long distance and subsequently asked Page (the independent Joplin dealer) “to follow up” which he did by calling at Owens’ shop and talking personally with both Owens and Parsons. At that time, an oral agreement was reached between Midwestern and Owens, in a long distance telephone conversation with Midwestern’s home office, that Midwestern would repurchase the first lathe for $2,000 and would loan Owens another 24" lathe while, pursuant to his request, Midwestern undertook to locate for him a larger 36" lathe. Parsons did not participate in this telephone conversation and insisted that he was given no advance information that the first lathe was to be repurchased or that another lathe was to be loaned to Owens. However, Parsons admittedly (in the language of his brief) “released the original [first] lathe from his chattel mortgage * * *."

At a later date not fixed in the record more definitely than that it was early in June 1962, Midwestern picked up the first lathe and delivered to Owens’ shop a 24" Bullard vertical turret lathe, Serial No. 15649 (hereinafter referred to as the second lathe), which is the subject of this suit. On June 14, 1962, Midwestern issued its check for $2,000 payable to the sole order of “Ozark Mfg.” in payment of the repurchase price of the first lathe. Midwestern’s O’Heron, who wrote the $2,000 check, then knew that the first lathe had been mortgaged, although it was O’Heron’s “impression” that the Central National Bank held the note and mortgage. Received at Owens’ office in his absence (so he said), the $2,000 check was deposited in his account in the Central National Bank of Carthage, and Parsons was not notified of its receipt and deposit. Owens’ explanation, perhaps satisfying to the credulous and naive, was that “I never even thought anything about it.”

Parsons, an automobile dealer in Carthage, was in Owens’ shop frequently (Owens said “every day”) and knew when the first lathe was removed and the second lathe was installed, but the record suggests no inquiry by Parsons as to ownership of the second lathe and no effort to procure a chattel mortgage covering it until August 30, 1962. On that date, Owens, his wife, his attorney, and Parsons met in the office of R. A. Evans, president of the Central National Bank. As Parsons explained upon trial, Owens “had bit off more than he could chew in real estate and equipment” and Parsons then (i. e., on August 30, 1962) refinanced his (Owens’) indebtedness by taking a new note, in which the monthly payments were reduced “so he might survive,” and a new chattel mortgage (hereinafter referred to as such) which purport-, ed to cover the listed machinery and equipment in Owens’ shop, including the second lathe (misdescribed in the mortgage as a 30" lathe). However, Owens’ business did not survive and, by the first of October 1962, Parsons had taken possession of the mortgaged personalty. Institution of this action followed shortly on October 18, 1962.

The positive and undisputed evidence was that Owens did not purchase the second lathe but that it simply was loaned to him. Thus he was never vested with title to the second lathe and had no right to mortgage it. The general rule is that a mortgagee is charged with the duty to see that the mortgagor has good title to the property which he undertakes to mortgage, and that a person cannot mortgage property that he does not own so as to defeat the claim of the rightful owner, even though the mortgagee may act in good faith. So recognizing, Parsons’ pleaded defense, accepted by the trial court, was that Midwestern was estopped to assert its title to the second lathe and that he (Parsons) had a special property or interest therein sufficient to support his claim of right of possession.

Parsons’ argument on estoppel runs along the line that “by shipping the second lathe to Owens without attempting to contact Parsons to get his consent to the transfer of lathes, [Midwestern] clothed Owens with apparent ownership and title to the second lathe,” that Midwestern thereby “put it in Owens’ power to commit a fraud upon Parsons,” and that Midwestern should be estopped to assert its title to the second lathe, under the broad equitable doctrine that where one of two innocent persons must suffer because of the fraud of a third party he who put it in the power of the third to commit the fraud should suffer. But all of the cases upon, which Parsons here relies involved motor vehicles; and, in each instance, the estopped owner either had delivered with the motor vehicle, or had placed the fraud-feasor in position to obtain, documentary indicia customarily accepted as evidencing ownership.

Mere possession and control of personalty is not sufficient to estop the real owner from asserting title against a person who has dealt with the one in possession on the faith of his apparent ownership; and “application of the doctrine that ‘[w]henever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it’ [citing cases] must be founded upon something more than the bare possession of personal property ⅜ * William J. Lemp Brewing Co. v. Mantz, 120 Md. 176, 87 A. 814, 817. See Seigal v. Warrick, Tex.Civ.App., 214 S.W.2d 883, 885; annotation 7 A.L.R. 676, 677. Thus it is said that “[t]he owner of a chattel is not estopped to assert title to it by permitting another to Use it in his business” [annotation 7 A.L.R. 676, 678] — a general principle which has béen found acceptable and controlling in numerous cases collected in the cited annotation.

Furthermore, “[i]t is an essential element of equitable estoppel that the person asserting the estoppel shall have changed his position for the worse in reliance upon representations or conduct of the person sought to he estopped.” (Emphasis ours.) Parsons does not assert that Midwestern made any representations, and the only conduct of which he complains is that Midwestern repurchased the first lathe and then loaned the second lathe to Owens without theretofore notifying Parsons and obtaining his consent. But Parsons changed his position for the worse when he released the first lathe from the lien of the old chattel mortgage; and, since such change in position occurred before Midwestern repurchased the first lathe and before it loaned the second lathe to Owens, certainly it could not be found that, in so changing his position for the worse, Parsons relied upon Midwestern’s subsequent conduct. Mickelberry’s Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731, 739(10); Klaar v. Lemperis, Mo., 303 S.W.2d 55, 59(10) ; 31 C.J.S., Estoppel, § 71a at 432. He who asserts an estoppel has the burden of proving it, and every essential element of such estoppel must be established by clear and satisfactory evidence. Defendant Parsons has not done so, and the judgment for him predicated on the pleaded defense that Midwestern is estopped to assert its title to the second lathe may not stand.

Whether the case should be reversed outright or should be reversed and remanded for further proceedings has been a subject of concern. True, Parsons released the first lathe from the lien of the old chattel mortgage upon the condition stated by him to Owens in this language: “If you [Owens] can get that machine Tthe first lathe] replaced with another machine that is satisfactory with you, that we can put on the mortgage in place of the ones (sic) on there, it will be fine with me” — in substance and effect, upon condition that mortgagor Owens would give him (Parsons) a mortgage upon another lathe to be received in exchange. But when Parsons consented to return of the first lathe to Midwestern, he waived his lien under the old chattel mortgage and thereafter was required to look to mortgagor Owens personally for payment of the mortgage debt. Moffett Bros. & Andrews Com’n. Co. v. Kent, Mo., 5 S.W.2d 395, 400(1) ; Rogers v. Davis, 194 Mo.App. 378, 184 S.W. 151, 154—155(5). See Stockyards Nat. Bank v. B. Harris Wool Co., 316 Mo. 426, 289 S.W. 623, 632(1). Furthermore, Parsons could not have claimed the first lathe or its value from Midwestern, unless the latter had been a party to, or had had knowledge of, the condition upon which the first lathe had been released. Oklahoma Cattle Loan Co. v. Wright, 219 Mo.App. 157, 268 S.W. 712, 714(2) ; Van Sant v. Austin-Hamill-Hoover Live Stock Com’n. Co., 221 Mo.App. 1096, 1100, 295 S.W. 506, 508; Adamson v. Fogelstrom, 221 Mo.App. 1243, 300 S.W. 841, 845(10, 11). And the record before us neither presents any such claim by Parsons nor demonstrates that Midwestern was a party to, or had knowledge of, the above-stated condition.

On the other hand, we would not be misunderstood as placing the stamp of judicial approval upon the conduct of either Midwestern or Owens. And although the transcript before us provokes the frank observation that we seriously doubt whether Parsons properly can plead and prove facts constituting' a valid legal defense to Midwestern’s cause of action in replevin for the second lathe, the judicial quest for the doing of substantial justice has moved us to the uncertain conclusion that, since we are unable to say with assurance that the facts have been developed fully, defendant Parsons should not be foreclosed from appropriate amendment of his pleading, if he be so advised, and from retrial on the merits.

It is, therefore, the judgment of this court (a) that the judgment of the circuit court for defendant Parsons upon plaintiff Midwestern’s petition in replevin be set aside and for naught held, (b) that this cause be remanded to the circuit court for further proceedings not inconsistent with this opinion and for retrial upon the merits, and (c) that the costs of this appeal be taxed against defendant Parsons.

RUARE, P. J., and HOGAN, J., concur.

      . Bank of Ionia v. Bank of Eldon, Mo.App., 365 S.W.23 770, 773(4); Bank of Kennett v. Clayton, 241 Mo.App. 487, 498, 245 S.W.2d 678, 684(10); Peper v. American Exchange Nat. Bank in St. Louis, Mo.App., 205 S.W.2d 215, 217, affirmed 357 Mo. 652, 210 S.W.2d 41; Goodman v. Nichols, 238 Mo.App. 802, 813, 188 S.W.2d 666, 671.

      . Peper, supra, 205 S.W.2d at 217; Goodman, supra, 188 S.W.2d at 671; Gilbert Book Co. v. Sheridan, 114 Mo.App. 332, 343, 89 S.W. 555, 558(5); 15 Am.Jur.2d, Chattel Mortgages, § 22, p. 217.

      . Jim Keehn Motors, Inc. v. Bell, Mo.App., 364 S.W.2d 629, 632(2); Pashalian v. Big-4 Chevrolet Co., Mo.App., 348 S.W.2d 628, 634(7); Wills v. Shepherd, 241 Mo.App. 102, 109, 231 S.W.2d 843, 847 (2); Seward v. Evrard, 240 Mo.App. 893, 900, 222 S.W.2d 509, 513(2).

      . In Jim Keehn Motors, Inc., supra, 364 S.W.2d at 630, the owner (a new car dealer) delivered “ ‘all the papers that go with an automobile,’ including bills of sale, car invoices and certificates of origin”; in Pashalian, supra, 348 S.W.2d at 631, the owner (a new car dealer) delivered “[t]ke invoice, the application for Certificate of Title, the Manufacturer’s Statement of Origin * * * together with the usual service policies”; and, in Seward, supra, 222 S.W.2d at 513-514, the owner (a used car dealer) “carelessly placed [the fraud-feasor] in a position where he could and did secure an Arkansas title regular upon its face.”

      . Anthony v. Midwest Live Stock Commission Co., Mo., 260 S.W. 94, 97(2); 19 Am.Jur., Estoppel, § 68, p. 696. See Seward, supra, 222 S.W.2d at 513(3) ; Goodman, supra, 238 Mo.App. at 812, 188 S.W.2d at 671(4); Foster v. Modern Woodmen of America, 235 Mo.App. 386, 400, 138 S.W.2d 18, 26(9).

      . Emery v. Brown Shoe Co., Mo., 287 S.W.2d 761, 767(5); Sutorius v. Mayor, 350 Mo. 1235, 1254, 170 S.W.2d 387, 397 (17); Klaar v. Lemperis, Mo., 303 S.W.2d 55, 59. See Wilkinson v. Lieberman, 327 Mo. 420, 427, 37 S.W.2d 533, 536(6); First Nat. Bank of Shamrock, Tex. v. Witherspoon Livestock Com’n. Co., 230 Mo.App. 285, 301, 90 S.W.2d 453, 463 (10).

      . Emery, supra, 287 S.W.2d at 767(4); Pike v. Menz, 358 Mo. 1035, 218 S.W.2d 575, 578(3); Sutorius, supra, 170 S.W.2d at 397 (19); Linville v. Ripley, 347 Mo. 95, 146 S.W.2d 581, 583(7).

      .John Hancock Mut. Life Ins. Co. v. Dawson, Mo.App., 278 S.W.2d 57, 61(7); State ex rel., Richards v. Fidelity & Casualty Co. of New York, Mo.App., 82 S.W.2d 123, 128(6); 31 C.J.S., Estoppel, § 162a, p. 773. See Hanna v. Nowell, Mo.App., 330 S.W.2d 595, 602(8); National Match Co. v. Empire Storage & Ice Co., 227 Mo.App. 1115, 58 S.W.2d 797, 799 (10), certiorari denied 290 U.S. 668, 54 S.Ct 88, 78 L.Ed. 577.


author: GRIFFIN, Justice. SMITH, Justice

text:
    Mozelle Corley TURNER et vir, Petitioners, v. Genevieve J. TURNER et al., Respondents.
    No. A-9803.
    Supreme Court of Texas.

      Nov. 25, 1964.

    Rehearing Denied Jan. 13, 1965.

      Dillingham, Schleider & Lewis, Charles Dillingham, Ben H. Schleider, Jr., John E. Lewis, Earl O. Latimer II, John S. Brunson and W. Harold Sellers, Houston, for petitioners.
    Fred W. Moore and Lew W. Harpold, Fred C. Brigman, Jr. and Brigman, Martin & Smith, Houston, for respondent Genevieve J. Turner.

      Fred Parks and Ruby Sondock, Houston, for respondent J. F. Corley.
   GRIFFIN, Justice.

This is an alienation of affections suit brought in a district court of Harris County, Texas, by respondent Genevieve J. Turner, against Mozelle Corley and husband, Pat Corley, as defendants. The original petition was filed June 6, 1960.

The cause was tried to a jury in May, 1962, and on the answer of the jury to special issues, the trial court entered judgment in favor of Genevieve Turner against Mozelle Corley Turner for $150,000.00 actual damages, plus $29,000.00 exemplary damages and in favor of respondent Pat Corley against his former wife, Mozelle Corley Turner, for $30,000.00 as attorney’s fees. Petitioner appealed to the Court of Civil Appeals, which affirmed the trial court’s judgment. 369 S.W.2d 675.

Mozelle and Pat Corley had been married some eighteen years when they permanently separated December 30, 1959. Genevieve J. Turner and Harry A. Turner were married in 1938 and were divorced August 2, 1960. The Corleys were divorced March 27, 1961. Mozelle Corley and Harry Turner married April 7, 1961.

Until the filing of the alienation of affections suit in June, 1960, or a few months prior thereto, the Turners and Corleys were very close friends. They took trips together and spent a great deal of time together.

The Court of Civil Appeals has set out in its opinion a full statement of the facts of this unfortunate litigation between former friends and we will not restate the facts.

Mozelle Corley Turner and her present husband, Harry Turner, as petitioners herein, complain of the action of the trial court — affirmed by the Court of Civil Appeals — in awarding to Pat Corley a judgment for $30,000.00 as reasonable attorney’s fees, because it is contended this suit is not one in which attorney’s fees may be awarded to Pat Corley.

Pat Corley answers that in view of the jury findings that he did not induce the plaintiff to file this suit, and that he did not aid the plaintiff in the prosecution of the suit, he is an innocent party to the suit and is entitled to be indemnified by Mozelle, the active defendant. Therefore, he is entitled to recover his attorney’s fees.

We sustain the assignment of the petitioner, Mozelle Corley Turner, that she cannot be charged with attorney’s fees in this suit.

The alienation of the affections of Harry A. Turner, caused by the conduct of Mozelle Corley Turner, is a tort against plaintiff Genevieve J. Turner. Pat Corley is not individually liable for the torts of his wife not aided and abetted by him. The community estate of Mozelle and Pat Corley would be liable. Art. 4613, Vernon’s Ann. Civ.St.

Pat Corley had no right of action against Mozelle Corley Turner for her wrongful conduct against him, resulting in. the alienation of the affections of Harry A. Turner from the plaintiff.

That the husband cannot sue his wife for damages resulting from the torts of his wife committed against him was settled by the case of Nickerson and Matson v. Nickerson, 65 Tex. 281, 1886. It is true that this was a case where the wife was seeking recovery against the husband for a tort committed by the husband and a third party against the wife. Nickerson and his wife had been divorced after the commission of the tort, but prior to the trial of the wife’s suit. The court said:

“The tort inflicted upon the wife by the husband and another, gave no right of action to the wife against the husband.”
Again:
“Whatever cause of action the wife had, accrued when the acts of which she complains were committed; and the fact of divorce subsequently granted, can not make that a cause of action which was not so at the time the facts transpired.”

The Nickerson case has been followed by many cases, and an examination of Shepard’s Texas Citations discloses that the rules of law laid down as quoted above have never been questioned. See also Gowin v. Gowin, Tex.Civ.App., 264 S.W. 529, 1924, affirmed Tex.Com.App., 292 S.W. 211, 1927; Latiolais v. Latiolais, 361 S.W.2d 252, 253, Tex.Civ.App.1962, writ ref., n. r. e.; 30 Tex.Jur.2d, p. 234, § 145.

The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees ( incurred by a party to litigation are not recoverable against his adversary either in an action in tort or by suit upon a contract. . Van Zandt v. Ft. Worth Press, 359 S.W.2d 893, 896(5), Tex.Sup.1962; Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333 (2-4), 1938; Wm. Cameron & Co. v. American Surety Co. of New York, 55 S.W.2d 1032, 1035(3), Tex.Com.App., 1932; Sherrick v. Wyland, 14 Tex.Civ.App. 299, 37 S.W. 345, 1896.

All parties to this litigation agree that there is no legislative enactment permitting recovery of attorney’s fees in cases of this character.

Mozelle Corley Turner claims that the property settlement agreement between her and Pat Corley in the divorce suit prevents any recovery by Pat against her of his attorney’s fees. Pat answers that this is not a correct construction of such settlement agreement and a résumé of the terms of the agreement, relied on herein, is that (1) each party to the agreement shall be liable for his respective attorney’s fees, (2) that any obligation incurred by either party after February 1, 1961, would be the : separate obligation of the party incurring the same. Pat claims that if he is forced to have his share of the community property applied to the payment of this judgment by virtue of the separation agreement, he should be indemnified by Mozelle. He claims that having the right to indemnity from Mozelle, this right should include the right to his attorney’s fees for defending Genevieve Turner’s suit against him for damages by virtue of the alienation • of Harry Turner’s affections. The settlement agreement between Mozelle and Pat Cor-ley specifically provided, “Any liability for the alienation of affections suit now pending , against First Party and Second Party is expressly not assumed by either of the parties hereto, and the satisfaction of any judgment which might be incurred by reason thereof shall be left open and unaffected by this property settlement agreement.”

By virtue of this provision, we hold the separation agreement has no application to our problem herein, and does not afford any basis for recovery or denial of attorney’s fees.

Pat Corley cites some cases where attorney’s fees have been allowed in suits for indemnity. These cases are not in point here. None of them involve suits between husband and wife, or a former husband and wife for wrongs arising during the existence of the marriage relationship. Also, these cited cases are suits upon indemnity bonds or suits by one joint tort-feasor to collect indemnity because of the payment of a joint judgment against the parties to these suits. Pat Corley and Mozelle Corley were not joint tort-feasors in this cause, and it was so stipulated by the parties to this suit.

Pat Corley could not recover against Mozelle Corley for her tort, therefore he cannot claim indemnity from Mozelle for the expenses incurred by him in defending Genevieve J. Turner’s suit against both parties.

Pat Corley quotes from Sec. 914, Vol. 4, Restatement of the Law: Torts, as follows:

“A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees and other expenditures thereby suffered or incurred.”

The comment under this Sec. 914 refers to Restatement of Restitution, Sections 86-102, for the rule applicable to cases such as the one we have here. Under Sec. 96 . of Restitution it is stated that, “The restatement of this subject does not deal with rights dependent upon special relationships, .such as husband and wife and parent and child * *

. s There is a very exhaustive annotation in 45 A.L.R.2d 1184 et seq. as to recovery of attorney’s fees which a plaintiff is obligated to pay in a litigation of his claim.

It is there stated that the general rule is that such attorney’s fees are not recoverable in the absence of some statutory or contract provision permitting their recovery, but that .there are exceptions and modifications to this general rule. One exception is that where a plaintiff has been involved in litigation with a third party as a result of the tortious act of another, plaintiff may recover in a separate suit for his reasonable and . necessary expenses of the prior litigation. . In order that such recovery may be had there are certain requisites prescribed, the . first of which is that the present plaintiff , (Pat Corley in his cross-action) must have incurred attorney’s fees in the prosecution or the defense of a prior action. Another, the litigation must have involved a third party and not against the defendant (Mo-zelle Corley) in the present action. These requisites are not met' by the cross-action of Pat Corley against Mozellé' for his attorney’s fees.

This annotation discusses Sec. 914 of Restatement of the Law: Torts, relied upon by Pat Corley and it is shown such section does not cover our case.

That part of the judgment of both courts below which permits recovery by Pat Corley from Mozelle Corley Turner of any attorney’s fees is reversed and Pat Corley shall recover no attorney’s fees herein.

We now- come to the contention of Mo-zelle Corley Turner that the trial court committed error in not sustaining her motion to enjoin Pat Corley’s attorney, Fred Parks, Esquire, from appearing as counsel in this case because he was disqualified by virtue of having in the beginning of the litigation represented Pat and Mozelle Cor-ley.

As to any harm resulting to Mozelle by virtue of Mr. Parks representing Pat in this litigation, we have given Mozelle relief in our reversal and rendition of Pat’s judg-ement for attorney’s fees. This relief was all the relief she sought against Pat.

Mozelle seeks to reverse Genevieve’s judgment against her for the alienation of Harry Turner’s affections on several points of error, one of which is based on the disqualification of Mr. Parks to represent Pat. Mozelle claims that Mr. Parks brought out in his questions to her confidential information which he had gained by virtue of having been her attorney at the beginning of the litigation.

In this litigation Genevieve was plaintiff, and as such sued both Mozelle and Pat They were co-defendants. Mr. Parks never . was the attorney of Genevieve, and Genevieve in no way relied on Mr. Parks as her attorney. At all times she had her own counsel to represent her.

A short resume of this litigation and the pleadings filed therein will be helpful in disposing of the question of Mr. Parks’ disqualification as it affects Genevieve’s judgment against Mozelle,

Pat Corley and his then wife, Mozelle, permanently separated December 30, 1959. Efforts were made by mutual friends to effect a reconciliation, but these efforts were unsuccessful.

In January of 1960, plaintiff herein, Genevieve J. Turner, then married to Harry A. Turner, wrote a letter to Pat Corley demanding damages from Pat and Mozelle by virtue of Mozelle’s actions and conduct having alienated the affections of Harry A. Turner. Upon receipt of the letter, Pat Corley employed Fred Parks, Esq., an attorney at the Houston, Texas bar, to represent both him and his then wife, Mozelle, in this suit. No settlement was reached of Genevieve’s claim for damages and she filed this suit against Pat and Mozelle, June 3, 1960. In her original petition she alleged that the acts and conduct of Mozelle had alienated the affections of her husband, Harry A. Turner, and had resulted in a breaking up of Genevieve’s home and the filing of a divorce action between Genevieve and Harry. In this suit Genevieve sought recovery of actual and exemplary damages against Mozelle, but sought recovery against Pat only to the extent of the community estate of Pat and Mozelle. To this suit attorney Parks filed an answer on behalf of both Pat and Mozelle.

No reconciliation having been effected between Pat and Mozelle, Mozelle employed Tier present counsel to file a divorce suit between her and Pat. This divorce suit was filed ¡about September 1, 1960. September 16, 1960, Mozelle. notified Pat and attorney Parks and the court that she had discharged Parks as-, her attorney effective September 1, 1960, and had employed her present counsel 4o -represent her interests in both the divorce suit and the alienation of affections suit.

Genevieve and Harry were divorced August 2, 1960. Thereafter, Genevieve on October 25, 1960, filed her first amended petition herein, and again limited her prayer for recovery against Pat, as she had done in her original petition.

A demand that this cause be tried by a jury was made and the cause placed on the jury docket. In Harris County, Texas, there is a time lag of from fifteen months to two years between the placing of the case on the jury docket and it reaching a trial.

In the meantime, depositions of all parties were taken, various motions were made by-all parties, hearings were had on various preliminary matters, etc. etc.

November 8, 1961, Mozelle filed her second amended answer and for the first time filed a cross-action against Genevieve and Pat, alleging they had conspired to bring this suit, and asked for recovery of damages against both Pat and Genevieve, jointly and severally, resulting from the conspiracy. Also, in this answer, showing the conspiracy, Mozelle made allegations that Pat’s counsel was antagonistic, acted adversely to her, hindered her in her proper defense, and that actions on the part of Pat’s counsel showed the existence of the conspiracy between Genevieve and Pat, but filed no motion to disqualify attorney Parks.

December 4, 1961, Pat Corley represented by attorney Parks, filed an answer to Mo-zelle’s cross-action against him, seeking only his costs and general relief.

Various pleadings were filed by all parties and December 29, 1961, Mozelle for the first time by her cross-action against Pat, asked for indemnity against Pat to the extent of any judgment which Genevieve might recover against her, or in the alternative for contribution by Pat of one-half of such judgment. She continued her charge of conspiracy.

January 5, 1962, the trial court set the case for trial before a jury March 12, 1962.

March 1, 1962, Mozelle filed a motion for continuance of the trial of the case until May, 1962. March 20, 1962, Mozelle recast her pleadings and again plead a conspiracy between Pat and his counsel and Genevieve, and asked for recovery against Pat as theretofore plead.

March 21, 1962, the trial court continued the case and made a preferential setting for trial on May 21, 1962.

April 14, 1962, Pat filed his second amended answer to both Genevieve’s suit and Mozelle’s suit, and by cross-action asked for indemnity against Mozelle for any sums he might be required to pay out of the part of the community estate of him and Mozelle which was set aside to him in the property settlement between them which was approved in the judgment divorcing Pat and Mozelle on March 27, 1961.

April 16, 1962, Mozelle filed her fourth amended original answer in which, among other things, she alleged collusion between Pat and Genevieve to bring this alienation of affections suit and asked for relief against Pat for any judgment Genevieve might recover against her.

April 23, 1962, Mozelle for the first time filed a motion to disqualify Pat’s attorney, Parks, on the ground of his having represented her in 1960. The trial court set this motion for hearing on May 2, 1962, and after a lengthy hearing, overruled Mozelle’s motion to disqualify attorney Parks.

May 12, 1962, Mozelle filed her fifth amended answer in substance the same as her fourth amended answer and again alleged collusion between Pat and Genevieve and sought recovery against Pat.

May 18, 1962, Pat filed his third amended answer to Genevieve’s and Mozelle’s suits against him and asked for indemnity or in the alternative contribution against Mo-zelle for any amounts he might be forced to pay Genevieve. He also asked for costs and for $35,000.00 as a recoverable attorney’s fee.

May 21, 1962, on the call of the case for trial Mozelle renewed her motion for disqualification of Pat’s counsel, attorney Párks, and the court overruled the same. The ease -then proceeded to trial, with the results set out in the first part of this opinion.

We recognize the rule that an attorney, after accepting employment and enjoying the confidence of one client, though afterwards discharged by his client without cause, cannot in general, with propriety, accept an employment by the opposite party in the same case. Myers v. Crockett, 14 Tex. 257 (1855, no writ history); Crye v. O’Neal & Allday, 135 S.W. 253 (Tex.Civ.App., 1911, no writ history) ; Lamb v. Isley, 114 S.W.2d 673 (Tex.Civ.App., 1938, no writ history).

Without deciding the question of Mr. Parks’ disqualification to represent Pat Corley in this suit and its effect on Genevieve’s judgment, we hold that Mozelle, by her failure to timely file a motion to disqualify Mr. Parks and by securing a continuance of the cause prior to filing a motion to disqualify Mr. Parks, has waived any complaint she may have had on this ground.

Mozelle cites certain instances in which she claims that Pat’s attorney, in his cross-examination of her, developed very damaging testimony. We have carefully examined the statement of facts, and find no objections lodged by Mozelle to the questions and answers on the ground of Mr. Parks’ disqualification or that the answers would divulge confidential information obtained by Mr. Parks when he was representing Mozelle and Pat.

Also, we find that such questions by Mr. Parks did not elicit any information or evidence not placed in the record by either Genevieve’s or Mozelle’s attorneys. Mo-zelle cannot be heard to complain of the cross-examination under such circumstances.

There is nothing in the record to support a reversal of Genevieve’s judgment against Mozelle on the ground that the court failed to disqualify Mr. Parks to represent Pat.

Mozelle cites the cases as Barreda Corp. v. Ballenger, 116 S.W.2d 442, Tex.Civ.App., 1938, writ dismissed; Cochran v. Cochran, 333 S.W.2d 635, Tex.Civ.App.1960, writ refused n. r. e.; Lamb v. Isley, 114 S.W.2d 673, Tex.Civ.App., 1938, no writ history; Bryant v. Lewis et al., 27 S.W.2d 604, Tex.Civ.App., 1930, writ dismissed; and certain canons of the State Bar Act, as authority for the reversal of Genevieve’s judgment. In none of these cases was a third party involved. In each of these cases, the attorney sought to be disqualified from representing one of the parties had theretofore been the attorney representing the party moving for the disqualification, but who now represented his present client in a suit against a former client.

None of these cases are in point on Mo-zelle’s attempt to reverse Genevieve’s judgment against her on her allegations that Mr. Parks was disqualified to represent Pat.

We therefore overrule this point of error urged by Mozelle.

Mozelle makes complaint of attorney Parks’ argument in the submission of the cause. Mozelle made no objection to the argument at the time it was made.

The argument was clearly of the type that any harm it may have done could have been corrected by timely objection and request for instructions by the court and the giving of such instructions to the jury to disregard such argument. We must presume that the trial judge, on proper objection being made, had he considered the argument unfair or vicious would have sustained objections and given appropriate instructions to the jury to disregard the same.

Argument which could be properly cured by objection by opposing counsel' and instruction by the trial judge is not reversible error in the absence of such objection. Unless the argument is incurable, a litigant will not' be permitted to lie in' wait, taking a chance on a favorable verdict, and, being disappointed, complain for the first time of improper argument in a motion for new trial. See Wade v. Texas Emp. Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197 (1951). See also Younger Bros. Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546 (3, 4) (1959); Texas Emp. Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856(1).

Petitioner Mozelle Corley assigns error to the admission of certain testimony given by deposition and on the stand, by the late Col. Joe Ed Winfree.

Parts of Col. Winfree’s deposition were introduced by counsel for Mozelle. Objections were made by Genevieve’s counsel to the deposition. After Mozelle’s counsel had finished with her offer, attorney Parks offered certain other parts of the deposition.

On an objection that the answers to certain questions were hearsay, the trial court sustained the objection and instructed the jury:

“Ladies and Gentlemen of the jury, you will not consider as evidence in this case anything that Mr. Winfree said in this deposition about his knowledge about what somebody else did.”

At the end of offer by all parties of Col. Winfree’s deposition, and just prior to the time he was called to the stand by Mozelle’s counsel, the court again instructed the jury:

“Ladies and Gentlemen of the jury, in this deposition of Mr. Winfree you all were permitted to hear what he was told about, what Mrs. Corley had told Mr. Corley and what Mrs. Turner had told Mr. Turner, and what Mr. Cor-ley had told Mrs. Corley and what Mr. Turner had told Mrs. Turner.
“Now, you will not consider the statements, you will not consider Mr. Winfree’s recitations of what he was-told on that hearsay testimony as proof of the truth of these conversations between Mr. and Mrs. Corley and Mr. and Mrs. Turner.”

Mozelle makes no complaint of any testimony given by Col. Winfree in person in open court

As to the complaints of what Col. Win-free testified in his deposition that he told the parties to this suit as to his conclusions about their conduct, we have examined the five large volumes of the statement of facts, and find that the various parties in their testimony gave similar testimony without obj ection.

Looking at the record as a whole, we do not find such error in admitting Col. Winfree’s deposition testimony as to hearsay and the Colonel’s conclusions as amounted to such a denial of the right of the petitioner as was reasonably calculated to cause and that probably did cause the rendition of an improper judgment in the case.

We therefore overrule this assignment of error.

Mozelle also seeks to reverse Genevieve’s judgment against her on the ground that the trial court refused to grant six peremptory challenges to Mozelle rather than only six to both Pat and Mozelle.

The suit against Mozelle brought by Genevieve also included Pat as a defendant, but the recovery sought against Pat was limited to his part of the community property which had belonged to Pat and Mozelle. Recovery was first sought against Mozelle and if any deficit remained, then, and only then, was recovery sought against Pat’s interest in the community. As far as the plaintiff Genevieve was concerned, there was a common ground of liability against both defendants and the issues between plaintiff and each defendant were the same. The fact that the two defendants might have actions against the other as to the extent of their own liability would not entitle each to six peremptory challenges as against plaintiff’s cause of action. Hargrave v. Vaughn, 82 Tex. 347, 18 S.W. 695 (1891); Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772 (1891); Retail Credit Co. v. Hyman, 316 S.W.2d 769(1-4), Tex.Civ.App.1958, writ refused.

The trial court offered to permit Mozelle and her attorney to be with Pat and his counsel while both parties were making their challenges to the jury. Pat and his counsel agreed to this procedure, but Mo-zelle and her counsel would not agree.

Mozelle argues that there was jury misconduct requiring a reversal of Genevieve’s judgment. Upon the hearing of the motion for new trial, it developed that the alleged misconduct complained of had been promptly corrected by the foreman of the jury immediately upon its happening, and no further mention was made of the matters. Also, the evidence sustained the trial court’s finding that the jury did not arrive at their answers to the amount of damages by means of a quotient verdict.

Mozelle complains that the trial court erred in permitting evidence to be introduced as to her wealth. Mozelle had pleaded the property settlement between her and Pat. This showed that Mozelle was a wealthy woman. All parties, including Mozelle, testified, without objection, as to her wealth. Also, Genevieve, as a part of her cause of action, had pleaded that Mozelle had used her greater wealth as a means of alienating Harry’s affections. This being true, no error is shown. Cramer v. Cramer, 106 Wash. 681, 180 P. 915 (1919); Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4 (1934); 27 Am.Jur. 167; 42 C.J.S. Husband and Wife § 688, p. 341, and authorities cited in each text.

Mozelle urges error in the action of the trial court and Court of Civil Appeals in holding that the two-year statute, and alternatively the four-year statute of limitations did not bar this action. The separation of Genevieve and Harry Turner occurred December 30, 1959, when Harry for the first time told Genevieve that he no longer loved her, hut loved Mozelle and wanted a divorce so he could marry Mo-zelle. This suit was filed in June, 1960.

The period of limitation begins to run from the time of the loss of consortium and not from the time that Harry Turner felt a lessening of his affection for Genevieve. 27 Am.Jur. p. 140; Smith v. Smith, 225 S.W.2d 1001(5-12), Tex.Civ.App., no writ history. See also, Collier v. Perry, 149 S.W.2d 292, Tex.Civ.App., dismissed correct judgment; 173 A.L.R. 776 et seq. and authorities there cited.

Mozelle has assignments as to certain paragraphs of the court’s charge. We have carefully examined the charge, and do not find it subject to the objections urged. These assignments are overruled.

Mozelle claims the judgment entered is not a final judgment, because it does not in so many words dispose of her cross-action against Pat. The judgment ■sets out a recovery for Pat of his attorney’s fees against Mozelle, and also specifically denies Mozelle's motion for judgment non obstante veredicto. In this motion Mozelle had requested judgment over against Pat, and a denial of this relief effectively disposes of this issue. This assignment- is overruled.

The judgment of the Court of Civil Appeals in so far as it allows Pat to recover an attorney’s fee from Mozelle is reversed and judgment here rendered that Pat take nothing against Mozelle as to this item.

In all other respects the judgment of the Court of Civil Appeals is affirmed.

SMITH, Justice

(dissenting).

I disagree with the holding that Pat Cor-ley is not entitled to a recovery of his attorney’s fees as against Mozelle Corley Turner.


author: DICE, Commissioner. -

text:
    Rudy VALADEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 37308.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.
    Rehearing Denied Jan. 13, 1965.
    Gib Callaway, Frederick G. Harmon, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner. -

The conviction is for murder with malice; the punishment, twenty-five years in the penitentiary.

Trial was in the 35th Judicial District Court, of Coleman County, upon an indictment returned into said court, in Brown County, by a duly impaneled grand jury in that county.

The evidence was undisputed that appellant killed the deceased, Adolfo Romero, by shooting him with a pistol, the homicide occurring in the city of Brownwood at the home of Pete Romero, Sr., where a group had gathered on the night in question and were playing records, dancing, and drinking beer.

The facts, as reflected by the state’s evidence, show that during the festivities, Alvin Valadez, who was appellant’s cousin, got “out of hand” and Pete Romero, Sr., asked him to leave. A scuffle between them ensued. In the scuffle Pete pushed Alvin out through the door. Alvin came back inside and the two then engaged in a fight. During the fight, the deceased, Adolfo Romero, appeared upon the scene and assisted Pete in again pushing Alvin out of the house. Some fifteen minutes later, Alvin returned to the house with the appellant and Joe Perez. As they appeared in the doorway leading into a bedroom, the appellant, who had a .22 calibre pistol in his hand, asked what happened. When Pete, Sr., replied: “What do you think happened ?,” appellant shot him in the right side of the neck. Appellant then turned the gun on Pete Romero, Jr., who was getting up from a bed, and shot him in the thigh. Pete, Jr., then proceeded to cut at appellant and his companions with a knife and just as they knocked Pete down the deceased walked by and the appellant shot him in the chest. The shot proved to be fatal.

Testifying as a witness in his own be,half, appellant admitted going to the Romero residence on the night in question with his cousins, Alvin Valadez and Joe Perez, and firing the two shots which struck the two Romeros and the fatal shot which killed the deceased. Appellant stated that he shot Romero, Sr., when the latter pointed a .22 calibre rifle at him and that he shot Romero, Jr., when he was attacking him (appellant) with a knife. In describing his shooting of the deceased, appellant testified: that when Pete Romero, Jr., attacked him, the deceased attacked Alvin and Joe; that after shooting the Romeros he, appellant, ran out of the room; that “I remember Alvin and Joe were in there, and I could hear lot of noise going on.” Appellant stated that he then reloaded his pistol and ran back. When he returned he saw Alvin and Adolfo fighting. Adolfo had a knife, “like a kitchen knife” in his hand, “swinging at Alvin * * * Cutting him * * * and I tried to stop him, and I shot him.”

The witness Joe Perez and Alvin Vala-dez corroborated appellant’s testimony with reference to the attack being made upon Alvin by the deceased, with a knife. Alvin, in his testimony, referred to the knife as a “dagger” and Joe Perez described the knife as a butcher knife with a blade “about 8 inches long.” Alvin testified that Adolfo stabbed him “over the heart” and was still cutting him when “[He] saw him fall.”

The court, in his charge, instructed the jury upon the right of appellant to defend Alvin Valadez against an unlawful attack being made upon him by the deceased, from which attack it reasonably appeared to appellant that Alvin was in danger of death or serious bodily injury at the hands of the deceased.

Appellant duly presented to the court a requested charge which would have instructed the jury with reference to the statutory presumption, arising under Art. 1223, Vernon’s Ann.P.C., from use of a deadly weapon by the deceased. Such requested instruction was refused and no instruction was given by the court with reference to the statutory presumption.

In failing to give an instruction under this article, the court erred.

Art. 1223, supra, provides:

“When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”

In 4 Branch’s Ann.P.C.2d, Sec. 2097, at page 412, under Art. 1223, supra, is found the following statements and citations:

“Where the testimony raises the issue as to whether defendant was acting in defense of another who was being or about to be assaulted by deceased with a deadly weapon, it is reversible error to fail to charge that if deceased was attempting to commit or was committing an assault on such other person and the weapon used was a deadly weapon, then the law presumes that he intended to kill and murder such other, and in such case defendant would have the right to slay at once to prevent such murder. Kendall v. State, 8 App [569] 583; Cline v. State, 28 SW 684; Paderes v State, 45 SW 914; Borden v State, 42 Crim [648] 652, 62 SW 1064; Yardley v State, 50 Crim [644] 647, 100 SW 399 (deceased shot first) ; Deneaner v State, 58 Crim 624, 127 SW 201; Castle v State, 84 Crim 593, 209 SW 416; Anderson v State, 86 Crim 207, 217 SW 390; Hurst v State, 151 Crim 615, 210 SW2d 594; Woods v. State, 152 Crim 525, 215 SW2d 334; Threadgill v State, 156 Crim 157, 239 SW2d 813; Sims v State, 156 Crim 608, 245 SW2d 260; Torres v State, 158 Crim 224, 254 SW2d 398 (pistol).”

In the instant case the evidence shows that the knife and the manner in which it was used by the deceased in making the attack upon Alvin Valadez was a deadly weapon and the court should have given application in his charge to the provisions of Art. 1223, supra, with reference to the statutory presumption arising from its use.

The failure to so charge was calculated to injure appellant and calls for a reversal of the conviction.

For the reason stated, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Bernard N. BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37279.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.
    Rehearing Denied Jan. 13, 1965.
    Ray Stevens, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Cletus A. Davis and Donald M.

      Smith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is forgery; the punishment, enhanced by two prior convictions for offenses less than capital, life.

The prior convictions were stipulated and appellant testified to the convictions alleged and others.

The indictment alleged forgery of a purchase agreement dated July. 31, 1963 for an Atlas tire, size 800-14, for $31.37 plus sales tax of $3.12, the total of $34.49 to be paid in six equal monthly installments to Humble Oil and Refining Company. The purchase agreement bears the imprint of a credit card issued by Humble Oil and Refining Company to George D. Ridings. The purported signature of George D. Ridings, holder of an Humble credit card, appears on such purchase agreement.

The evidence shows that the appellant purchased the tire at the Bellar Humble Station in Pasadena on July 31 and signed the name of George D. Ridings on the purchase agreement.

■ George D. Ridings testified that he did not authorize the appellant to sign his name or to use his credit card. He testified that he knew the appellant casually through his sister Lou Collier, and was asked and answered: “Q. Had you given your sister permission to use the card? A. I gave nobody my permission to use my card except my wife, it was used without my con- ' sent.”

Appellant’s voluntary statement was admitted in evidence without objection and reads in part:

“On July 31, 1963, me and a friend borrowed his Mother’s car, a Black and . White 1956 Buick. We talked about coming to Pasadena, Texas to buy some tires on a— Humble Credit Card, I had gotten from a sixteen year old girl. This card I had, was issued to a George D. Ridings from Humble. I did not have George D. Ridings’ consent or permission to have his card. I had gotten this card from a girl who wanted to sell it for $25.00. I did not have the money for the card so I promised to get her mother two tires for her Falcon.
“This friend and I drove over to Pasadena in the Buick and went to Bellar’s Humble Station at Tatar and South-more, where we bought two tires. The tires were 800 x 14. I signed the ticket at the station for the two tires. I was shown one of the tickets, dated 7-31-63 in the amount of $34.49, This is. pne of the tickets I signed. I signed the name of George D. Ridings. I did not have his permission nor consent to sign his name to this ticket or any other ticket. After we got the two tires from,this station, we drove to. South-more & Richey to Henry’s Humble Station, where we bought two more tires. This- tires were 760 x 15. I was shown one ticket dated 7-31-63 in. the amount of $37.20. This is one of the tickets I signed at the time we bought the two tires from Henry’s Humble Station. I signed the name of George D. Ridings to the ticket. I did not have George D. Ridings’ consent or .permission to sign his name to this ticket. After we got these two tires we went to South Houston, Texas.
“I knew a man in South Houston who would buy the tires from us. I had talked to a friend who told me about .this man in South Houston and .had given me his phone number to call when I had tires to sell. I called this man and made a deal to meet him at Rantans Drive Inn on College St. in South Houston. We met with this man and he bought the tires for $10.00 apiece. After this we drove on. back to Denver Harbor.”

Appellant testified and offered testimony to the effect that Mr. Ridings’ sister told him that she had borrowed the credit card from her brother; that he purchased the tires and other merchandise for Ridings’ sister who wanted to sell them to finance a trip to Waco to get her children. She was going to pay it back on a monthly basis — “She told me that was the deal she had made with her brother.”

The evidence shows, and appellant admitted, that he used the credit card and signed Ridings’ name to purchase agreements for the purchase of other tires and merchandise, each from a different Humble station on July 30th and 31st, and August 1st and 3rd.

We are unable to agree with appellant s contention that this case should be treated as one of reasonable doubt as to the sufficiency of the evidence because the state failed to call Mrs. Collier as a witness. Whitehead v. State, 49 Tex.Cr.R. 123, 90 S.W. 876.

As has been pointed out, Ridings’ testimony was that he did not give his sister or anyone else (except his wife) permission to use his credit card and that it was used without his consent.

Mrs. Collier was available to testify, she having been summoned as a witness for the defense. Appellant did not see fit to call her to support his testimony that he acted for her, without intent to defraud.

The rule relied upon by appellant has no application. This is not a circumstantial evidence case and the evidence is not “obviously weak.” The state’s evidence is direct and is sufficient to sustain the conviction.

This Court will not treat the failure of the state to call certain witnesses as raising a question of reasonable doubt as to the sufficiency of the evidence to support the conviction where the evidence is not obviously weak and the state does not rely on circumstantial evidence. 24 Tex.Jur. 2d 428, Sec. 745; Barrera v. State, Tex. Cr.App., 371 S.W.2d 881; Lockhart v. State, 171 Tex.Cr.R. 648, 352 S.W.2d 749; Barker v. State, 168 Tex.Cr.R. 513, 329 S.W.2d 889; Musser v. State, 167 Tex.Cr.R. 529, 321 S.W.2d 882; Fletcher v. State, 164 Tex.Cr.R. 321, 298 S.W.2d 581; Lowe v. State, 163 Tex.Cr.R. 578, 294 S.W.2d 394.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Stanley O’CLAIR, Appellant, v. The STATE of Texas, Appellee.
    No. 37145.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    Rehearing Denied Jan. 13, 1965.

      Raeburn Norris, Houston, for appellant
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is statutory rape; the punishment, life imprisonment.

This is a second appeal of the case, a prior conviction having been reversed because of the court’s failure to require the state to elect upon which act of intercourse it would rely for a conviction. O’Clair v. State, 364 S.W.2d 375.

The prosecutrix, fourteen years of age at the time of trial, testified that she lived with appellant and her younger sister in the city of Houston. She had never known her mother and had grown up to consider appellant as her father. When she was about eight and a half years of age, appellant began having sexual intercourse with her. This occurred nearly every night. She stated that she did not report these acts because she was scared, appellant having told her that if she did he would kill her. On February 16, 1962, she did tell of such acts at the police station where she had been taken by the police, along with some young companions.

The prosecutrix testified that the last act of sexual intercourse which appellant had with her was on Monday (February 12, 1962), prior to the time she was picked up by the officers on Friday, February 16. She stated that on such occasion appellant took her from her bedroom to his bedroom, where he penetrated her sexual parts with his private parts. She- further stated that she had never had sexual intercourse with anyone except the appellant.

It was shown that the prosecutrix was twelve years of age on February 12, 1964, and that an examination of her genital organ, on February 17, 1964, disclosed that she had a marital-type introitus.

Testifying in his own behalf, appellant stated that he met the prosecutrix’s mother in Fort Worth in 1949, when the prosecu-trix was three months old. They entered into a common law marriage and in 1951 the prosecutrix’s younger sister was born. Three or four months later, the mother deserted the children and left them in his care. After the mother’s departure, prose-cutrix and her sister continued living with appellant Appellant described in detail how he cared for the prosecutrix and her sister and swore that he had never made any sexual assault upon the prosecutrix.

Witnesses were called by appellant whose testimony supported his contention that the prosecutrix had had sexual relations with certain young boys.

The court submitted to the jury the issue of appellant’s guilt of the act of sexual intercourse which the prosecutrix testified occurred in the city of Houston on or about February 12, 1962, the state having elected to rely upon such act for a conviction.

The jury resolved the conflict in the testimony against appellant, and we find the evidence sufficient to support their verdict.

Appellant predicates his appeal upon six points of error.

By points #1 and #2, appellant insists that the court erred in overruling his objection to a question propounded to the prosecutrix with reference to whether she ever wanted to live with appellant again and in refusing to instruct state’s counsel to discontinue asking questions of her about a new home in which she was living with “adopted” parents.

The record reflects that prior to any objection being made by appellant, the prose-cutrix testified on direct examination that she had not been home since the day she reported appellant’s acts to the police and that she and her sister were living in a new home with “parents.” After having so testified, she was asked if she wanted to live in this home and she answered that she did. Appellant’s belated objection to the question was by the court sustained. Appellant requested the court to instruct counsel to discontinue this line of questioning, which request was refused. The prosecu-trix was then asked: “Do you ever again want to live with Stanley O’Clair?,” to which she answered: “No, sir.” Appellant’s objection to the question as being “highly improper” was by the court overruled.

Under the record showing that the prose-cutrix was living in a new home with other parents, we fail to perceive any injury to appellant by the court’s rulings.

By point of error #3, appellant complains of certain statements made by the prosecuting attorney in his opening argument to the jury, when he stated: “This child needs your help * * * Don’t you know she needs your help? Don’t you know that this 12-year old child who has gone through four year of hell, who is now in another home, with her little sister ⅜ ⅜ ⅝ »

The record reflects that upon objection being made by appellant to the argument and request that the jury be instructed to disregard the same, the court stated: “The jury is not required to help anybody. They will decide this case on the facts * * * The jury will determine this case from the evidence, since they are the judges of the evidence.”

Under the facts presented, showing appellant’s criminal assaults upon the prose-cutrix, together with her tender years and plight in life, we perceive no reversible error in the argument.

By points of error #4 and 5, appellant insists that state’s counsel committed reversible error in attempting to offer in evidence a written statement made by the prosecutrix and in referring in his argument to the prosecutrix having testified in two previous trials and displaying to the jury a transcript of the evidence in one of the prior trials.

While the record reflects that during the examination of the witness Betty Wells it was shown that the prosecutrix had made a written statement at the police station, which statement was identified as state’s exhibit #1, it was not offered in evidence nor the contents thereof made known to the jury.

The record reflects that proof was made before the jury, without objection, that there had been two previous trials. When state’s counsel in his argument stated that the prosecutrix had “told that story three times,” appellant’s objection was sustained and the jury instructed to disregard the statement.

Although the record shows that in his closing argument state’s counsel did refer to a certain document which purported to be a statement of facts of the testimony at a former trial, the contents thereof were not made known to the jury.

Points of error #4 and S are overruled.

Appellant’s last point of error, #6, is that state’s counsel committed reversible error in his jury argument in implying that appellant’s counsel should have informed the district attorney, prior to the trial, of the evidence of other acts of intercourse by the prosecutrix rather than surprise the state at the trials.

While such argument is not to be condoned, it appears that the court sustained appellant’s' objection thereto and instructed the jury not to consider the same. Hence, no reversible error is shown.

The judgment is affirmed.

Opinion approved by the court.