author: BATEMAN, Justice.

text:
    Lucille MERRIFIELD et vir, Appellants, v. Robert L. SEYFERTH et ux., Appellees.
    No. 16792.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 14, 1966.
    Rehearing Denied Nov. 4, 1966.

      Thompson, Knight, Simmons & Bullion, and Timothy E. Kelley and Geo. C. Chapman, Dallas, for appellants.
    Waldie, McDowell & Colvin, Ronald R. Waldie, Dallas, for appellees.
   BATEMAN, Justice.

The appellees Robert L. Seyferth and wife recovered judgment against the appellants Lucille Merrifield and her husband, George T. Merrifield, in the sum of $7,500 for personal injuries sustained by Mrs. Seyferth in an automobile collision. The jury’s findings as to Mrs. Merrifield’s negligence and proximate cause are not attacked; neither do appellants attack the finding of damages as being excessive. However, by their first two points of error they complain of restrictions placed by the trial court on their cross-examination of appellees’ medical witness.

In this cross-examination appellants’ counsel sought to show that the witness was prejudiced against him personally by reason of the following facts :

Two or three years previously the doctor had been sued for damages on account of alleged malpractice. His liability insurer had employed appellants’ counsel to defend the suit. The doctor had employed appel-lees’ counsel to represent him in view of an ad damnum in excess of policy limits. After investigation appellants’ counsel recommended to the insurer that the case be settled for the limits of the policy. This was done, and the insurance company then can-celled the doctor’s insurance. The doctor testified (out of the hearing of the jury, while the bill of exceptions was being perfected) that, while he resented the cancellation of his insurance, he held no resentment against appellants’ counsel and did not resent the fact that the case had been settled on that basis. The trial court rejected the testimony on the ground that it was irrelevant.

Appellants’ counsel continued with his cross-examination, in the course of which it appeared that the doctor had not brought his original records on Mrs. Seyferth to the courtroom. He promised to send them the next morning. He sent certain records which appellants’ counsel had an opportunity to examine but to which he raised no objection until after the unfavorable verdict, whereupon he sought to take the doctor’s oral deposition, and had subpoena duces tecum issued to him, in the hope of proving that the original records had not been sent and that the original records “might” reflect either that the doctor had not treated Mrs. Seyferth as extensively as he had testified or that she had had subsequent accidents, and that this would constitute newly discovered evidence. By their third point of error on appeal the appellants complain of the order quashing the subpoena duces tecum.

The burden of the first three points of error is that appellants were improperly deprived of the opportunity to show bias, interest and prejudice on the part of this medical witness. We find no merit in these points. Although wide latitude is allowed a party to cross-examine an adverse witness in order to show interest, bias, or prejudice to affect his credibility, and the only limitation is that of relevancy, McCormick & Ray, Texas Law of Evidence, § 600, pp. 467-8, this valuable right is subject to that limitation and “confers no right upon a litigant to examine a witness upon matters which are irrelevant and immaterial.” Mena v. Byers, Tex.Civ.App., 237 S.W. 330.

In our opinion, the tendered testimony was not relevant to any issue in the case and there was no error in excluding it. Moreover, it does not appear from the record that any harm probably resulted to appellants by the exclusion of this testimony. Rule 434, Texas Rules of Civil Procedure.

It should also be added that the trial court has a great deal of discretion in determining to what extent such cross-examination may be prolonged. Horton v. Houston & T.C. Ry. Co., 46 Tex.Civ.App. 639, 103 S.W. 467, 469, wr. ref.; St. Louis & S.F.Ry. Co. v. Clifford, Tex.Civ.App., 148 S.W. 1163, wr. ref.; Traders & General Ins. Co. v. Robinson, Tex.Civ.App., 222 S.W.2d 266, wr. ref. The record reflects no abuse of the trial court’s discretion. He gave appellants every reasonable opportunity to develop bias or prejudice on the part of the witness; and when they failed to do so he very properly put a stop to the cross-examination.

Therefore, the first two points of error are overruled.

Appellants’ third point is likewise without merit. The trial of the case had been completed and final judgment rendered more than two months prior to the quashing of the subpoena duces tecum, and no showing whatever is made of any newly discovered evidence. The mere suspicion or hope or belief of an attorney that an oral deposition “might” uncover some helpful evidence is not sufficient.

To obtain a new trial on the ground that “newly discovered evidence” was available, it was necessary for appellants to show that the evidence was unknown to them or their attorney prior to the trial, and that their failure to discover it was not due to their want of diligence; also, that the new evidence was so material as that it would probably change the result upon another trial, and that it was competent evidence, not merely cumulative, corroborative, collateral, or impeaching. 41 Tex.Jur.2d, New Trial, § 105, p. 253. Appellants failed to show any of these things. Their attorney knew as much about the doctor’s records before he rested his case as he did after the verdict. If he had desired to go into the matter of comparing the records furnished by the doctor with other records he might have in his office, this should have been attempted during the course of the trial and before resting. He could have recalled the doctor for further cross-examination, compelling him to bring all of his records into the courtroom, but elected not to do so until after the unfavorable verdict had been returned. It was then too late. Moreover, new trials are rarely granted on the basis of newly discovered evidence which purports to accomplish no more than the impeachment of a witness who has testified. Safety Cas. Co. v. Bennett, Tex.Civ.App., 259 S.W.2d 596, 598, no wr. hist. The third point is overruled.

By their fourth point of error appellants complain of the trial court’s refusal to permit them to develop the facts regarding hospital insurance applicable to Mrs. Sey-ferth’s case after she had testified that she could not afford to go to the hospital as recommended by her doctor.

Mrs. Seyferth’s doctor testified that he recommended that she be hospitalized but that she had stated that “for financial reasons” she was unable to do so. She testified that he had recommended hospitalization for her but that she did not go to the hospital because she “didn’t have the money,” and, later, that if she had had the money she would have gone to the hospital as recommended by her doctor.

This testimony as to Mrs. Seyferth’s lack of funds was not relevant; it bore on no issue in the case. The subject of inquiry was Mrs. Seyferth’s physical condition, not the condition of her finances. Of course, if appellants had taken the position that her disability, pain and suffering were due, at least to some extent, to her own neglect of her body; i. e., in failing to follow her physician’s advice to enter a hospital, then it might have been pertinent for her to explain that apparent wilfulness by proving her financial inability to avail herself of hospital care. But in the absence of some such provocation the testimony could hardly have had any purpose except to excite jury sympathy for her impoverished condition. Yet, appellants did not object to it on that or any other ground and did not request an instruction that the jury not consider it.

Instead, appellants endeavored to impeach the testimony by showing that Robert Sey-ferth had insurance coverage with his employer, Texas Instruments, which would have paid the cost of her hospitalization or at least a substantial portion thereof. Objection was made that this had “no material bearing in this case,” which objection was sustained. Counsel for appellants sought to perfect his bill of exceptions by continued cross-examination of Mrs. Seyferth out of the presence and hearing of the jury. Failing in this, he proved by the appellant Lucille Merrifield that she was employed at “TI” and was familiar with the benefits of a hospitalization insurance plan “they have out at TI,” which covered dependents. When asked how much that plan would pay for the spouse of an employee who would enter a hospital for treatment for sickness or illness after October 10, 1964 (date of the accident), she said it would pay the cost of a semi-private room and up to $300 “in extras” (x-rays and laboratory tests) and also pay for surgery according to a schedule. This testimony was tendered for the limited purpose of impeaching Mrs. Seyferth’s testimony that she had not entered a hospital because of a lack of funds. Appellees then made the additional obj ection that it had not been "shown through any witness that any such plan was carried by Robert Seyferth at the time of this accident.” This objection was also sustained.

We think the trial court correctly sustained both of appellees’ objections to the proffered testimony. In the first place, the general rule is that a witness may not be impeached, where the testimony sought to be contradicted was immaterial or collateral to the issues being tried, by contrary evidence which is likewise collateral. Orchin v. Fort Worth Poultry & Egg Co., Tex.Civ.App., 43 S.W.2d 308, 311; Kushner v. Rush, Tex.Civ.App., 347 S.W.2d 787, wr.dism., and many other cases collected in Texas Digest Witnesses, Key No. 383. The test is: Was the original testimony as to Mrs. Seyferth’s lack of money admissible? Attorney-General v. Hitchcock (1847), 1 Exch. 99; McCormick & Ray, Texas Law of Evidence, Vol. 1, §§ 683, 690, pp. 526, 535; 58 Am.Jur., Witnesses, §§ 783-786, pp. 432-435. We can think of no theory on which it would have been admissible.

In the second place, error is not shown in the exclusion of evidence unless the appellant brings before the appellate court a record that shows clearly, by bill of exceptions or otherwise, not only what the evidence would have been if admitted but also its relevancy. Here it was shown by bill of exceptions that “TI” had, on the date of the accident in question, a plan of hospitalization insurance which provided substantial hospital services to dependents of employees. Even though we interpret the initials “TI” to mean Texas Instruments, a corporation having a large factory near Dallas, there was no evidence that either of appellees was an employee of Texas Instruments at the time of the accident or covered by the insurance “plan.” The policy of insurance was not made a part of the bill of exceptions, nor was there any evidence that all employees of Texas Instruments were covered thereby. Unless appellants were in position to show the relevance of the rejected testimony, they present nothing for review by this court. 3 Tex.Jur.2d, Appeal and Error — Civil, §§ 416, 417, pp. 670-673. We therefore overrule appellants’ fourth point of error.

No reversible error having been showr, we affirm the judgment.

Affirmed.


source: Caselaw Access Project

author: CADENA, Justice.

license: Public Domain

text:
    William P. TEICH, Appellant, v. Alfred HABY, Appellee.
    No. 14468.
    Court of Civil Appeals of Texas. San Antonio.
    July 27, 1966.
    Rehearing Denied Nov. 23, 1966.

      Briscoe & Corley, Devine, for appellant.
    Anne E. Davis, Hondo, for appellee.
   CADENA, Justice.

This is a case in which William P. Teich, plaintiff, failed in his effort to enjoin defendant, Alfred Haby, from going across plaintiff’s land. The trial court’s refusal to enjoin was based on a finding that defendant had an easement of way by implied grant over the land of plaintiff.

The lands in question were a part of what is described as Survey No. 402, G.C. & S.F. Ry., Medina County, which was originally patented in 1918 to Leopold Haby and conveyed by him in 1919 to four of his children, Robert, Arnold, Olga and Louise, who owned the land in common until January 20, 1927, when two instruments relating to such land were executed. By one of these instruments, Arnold, Olga and Louise conveyed to Robert their interest in 384 acres of Survey No. 402. This tract, hereinafter referred to as the “western tract,” was bounded on the west by a public road. The other instrument was a conveyance, executed by Robert, Arnold, Olga and Louise, of 255 acres out of Survey No. 402 to Titus Haby. The tract thus conveyed to Titus will be referred to herein as the “eastern tract.”

In 1927 there existed a roadway leading from the public highway, across the western tract to the eastern tract. A partition fence was built between the western and eastern tracts, with a gap or gate at the point where the roadway-entered the eastern tract, and Titus Haby used such roadway as a means of traveling from the highway to the eastern tract.

On September IS, 1960, plaintiff acquired title to approximately 152.5 acres out of the western tract. The roadway referred to in the preceding paragraph, leading from the public highway to the ■eastern tract, was located, at least in 1927 and for some years thereafter, on a portion of the land now owned by plaintiff. Defendant acquired title to the eastern tract on January 30, 1962.

Defendant claims an easement of way, ■corresponding to such roadway, was created by implication as a result of the •conveyance of the eastern tract to Titus Haby in 1927.

Plaintiff contends that the trial ■court erred in applying to the facts of this case the “rules” relating to easements by implied grant, because any implied easement which might have been created over what is now plaintiff’s land on January 20, 1927, could have come into existence only by implied reservation. Plaintiff’s contention is based on the argument that, since the instrument conveying the western tract to Robert is recorded on page 33 of Vol. 83 of the Deed Records ■of Medina County, while the instrument ■conveying the eastern tract to Titus is recorded on page 125 of such volume, it ■must be presumed that the deed of the western tract to Robert was delivered .and became effective as a conveyance before the deed of the eastern tract to Titus became effective by delivery. Plaintiff then argues that the easement over the western tract, if it arose at all, would necessarily be for the benefit of the eastern tract, title to which was still retained by Arnold, Olga and Louise, grantors in the conveyance of the western tract. Since •the claimed easement would be for the benefit of the land retained by grantors, the conclusion is that the easement must be based on implied reservation, rather than implied grant.

Plaintiff’s contention is based on the theory that the easement in question arose as a result of the conveyance of the western tract to Robert by Arnold, Olga and Louise. It must be noted that, even if we assume such conveyance took effect before the conveyance to Titus, its only result was to give to Robert ownership of the complete interest in the western tract. It did not deprive Robert of his interest in the eastern tract. Therefore, when Robert joined in the conveyance of the eastern tract to Titus, Robert was conveying his interest in only a portion of the land owned by him, and the claimed easement is sought to be established over land retained by Robert. That is, the alleged easement, if it arose at all, arose by implication out of the conveyance to Titus of Robert’s interest in a portion of the land owned by Robert, and not out of the conveyance to Robert of the western tract by his cotenants, Arnold, Olga and Louise.

The judgment of the trial court is next challenged on the theory that, even if it be assumed that an easement by implied grant of January 20, 1927, defendant cannot assert any rights thereunder as against plaintiff, who purchased the alleged servi-ent tenement in 1960 without notice of .the existence of the claimed easement.

Defendant concedes that if, in fact, plaintiff purchased the alleged servient land in 1960 without notice of the existence of. the easement in favor of defendant’s land, plaintiff took his land free of such encumbrance. In view of this concession by defendant, we do not consider the interesting problem of whether a bona fide purchaser does in fact take the land free of an easement which arose by implied grant in connection with a conveyance evidenced by a recorded instrument. See Anno: 174 A.L.R. 1241 (1948).

Much of plaintiff’s brief is devoted to an attempt to show that the evidence is insufficient to establish that in 1960, when plaintiff acquired title to the claimed serv-ient land, the alleged use of such land for the benefit of defendant’s land was not “apparent, continuous and necessary.” This argument is based on language, such as that found in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962), setting forth the conditions which must exist at the time of the severance of the alleged dominant and servient lands, before an easement can be created by implication. However, the critical question relating to plaintiff’s claim as a bona fide purchaser is not whether, at the time plaintiff purchased in 1960, the conditions necessary to the creation of an easement by implication existed, but whether, at the time plaintiff purchased, he had knowledge of facts sufficient to charge him with notice of the existence of the easement which had been created in 1927.

The only question we need consider is whether, at the time of plaintiff’s purchase, there existed on the alleged servient land signs of the easement which reasonably suggested its existence.

Plaintiff testified that, prior to purchasing the property in 1960, he inspected the land and found no signs of any road leading from the public highway to defendant’s land. Several of plaintiff’s witnesses testified that, while they noticed the gap or gate in the partition fence between plaintiff’s land and the land of defendant, they did not recall seeing any roads, and that the gap in question was rusty and did not appear to have been used recently.

However, one of plaintiff’s witnesses testified that when plaintiff built a fence along the public road which bounded his land on the west, he “took the line of least resistance” and placed the gate on “one of the old farm roads which led all the way in.” Plaintiff’s witness, Boskind, testified that plaintiff, at first, used part of an existing road to get from the highway to his house, but that such road was rough and plaintiff subsequently built a new road, constructing a new gap in his fence at the place where the new road met the public highway.

Defendant testified that from 1927, when his father acquired the eastern tract, until 1962, when such tract was conveyed to defendant, his father used an existing road on what is now plaintiff’s land, as a means of getting from the highway to the eastern tract. During this time, both defendant and his father used such road whenever they desired to get to their land. This use of the road, by means of horses, wagons and motor vehicles, continued until 1962, when Teich built his fence along the public highway. Defendant, in October, 1962, at about the time Teich completed his fence, left a note inquiring of Teich where defendant could get a key to the gate so that he could move a cabin onto his land. Plaintiff furnished a key to defendant, but subsequently changed the lock on the gate. Defendant then left a note asking plaintiff if the lock had been changed, since the key which defendant had would not work. The note concluded with the request that plaintiff let defendant “know what the trouble is.” This note-produced no results, and subsequently, defendant apparently broke the gate.

Defendant also testified that when plaintiff built his new fence he placed the gate in the existing roadway. Defendant’s brother, Walter Haby, also testified to the existence of the old road, leading from the gap in plaintiff’s fence and following a. clearing on plaintiff’s land to defendant’s pasture.

Plaintiff’s witness, Boskind, also testified that there was a road leading from plaintiff’s house eastward to the fence dividing plaintiff’s land from that of defendant. He had never followed this road to defendant’s land because, at the time-he saw it, there was a tree across the road.

The testimony in the record is sufficient, if believed, to support the finding-that at the time plaintiff purchased his land there were visible signs on the ground sufficient to put plaintiff on inquiry. Under these circumstances, we cannot hold that the court erred in holding that plaintiff was not a bona fide purchaser.

The evidence shows that, in addition to the 255 acres which was a part of Survey No. 402, defendant owns in excess of 500 acres which is north of and contiguous to the 255 acres in question. This additional land of defendant borders, on the extreme north, on a public highway. Defendant and his brother both testified that there is no road leading from this public highway to the lower part of defendant’s land. Their testimony is to the effect that the land lying between this northern road and the lower pasture is very rough, consisting of box canyons, high hills and steep cliffs, making it impossible to get from the north road to the 255-acre tract except on horse or by fpot. The distance from the north road to the alleged dominant land is three miles.

Plaintiff, relying on cases dealing with rights-of-way by necessity, contends that since other portions of defendant’s land border on a public road, the case reflects an absence of the “necessity” which is an essential element for the finding of an easement. However, defendant does not here claim an easement by necessity. In cases involving easements by implied grant, it is sufficient if the easement in question was reasonably necessary to the enjoyment of the land conveyed. Even if the evidence showed that defendant could, at some expense, construct a road from the lower half of his land, across the remainder of his land, to the north highway, the evidence here shows a “sufficient necessity” to support the easement. Drye v. Eagle Rock Ranch, Inc. supra; Howell v. Estes, 71 Tex. 690, 12 S.W. 62 (1888); Hoak v. Ferguson, Tex.Civ.App., 255 S.W.2d 258, wr. ref. n. r. e.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    DARR EQUIPMENT COMPANY, Appellant, v. Robert N. OWENS, Appellee.
    No. 7756.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 25, 1966.
    Rehearing Denied Nov. 22, 1966.

      Cahill Hitt, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Dalton, Moore, Forde & Joiner, Dallas, for appellant.
    Sidney Lee, Texarkana, for appellee.
   CHADICK, Chief Justice.

This> is a venue case. The trial court decided that Subdivision 4, Art. 1995, Vernon’s Ann.Tex.Civ.St, accorded Robert N. Owens, the plaintiff in the underlying breach of contract suit, the prerogative of prosecuting the suit in Cass County, where filed, and where one of the two defendants resided. The orders overruling the plea of privilege of the non-resident defendant, Darr Equipment Company, is affirmed.

The exception to the general rule of venue allowed by § 4, Art. 1995 may be claimed by a plaintiff on showing: (a) one defendant in the lawsuit resides in the county of suit; (b) the party asserting a privilege to be sued elsewhere is at least a proper party to the suit against the resident defendant; and (c) the plaintiff has a bona fide cause of action against the resident defendant. The appellant Darr Equipment Company concedes that in the plea of privilege hearing Owens’ pleading and proof satisfied the first two requirements of the exception, but that Owens did not prove the third element, a cause of action for deceit (actionable fraud) plead against Dent Bail-lio, the defendant residing in Cass County and co-defendant in the suit with Darr Equipment Company.

The action Owens plead against Baillio individually is stated in this language, to-wit:

“ * * * defendant, Dent Baillio, falsely and/or fraudulently and/or negligently represented to the plaintiff that he was defendant, Darr Equipment Company’s, agent and had full and complete authority from said defendant company to contract on behalf of said defendant company to sell and deliver the herein-above described personal property to the plaintiff upon the terms and conditions heretofore described, which false and/or fraudulent and/or negligent representations were relied upon by the plaintiff.”

Counsel for Darr Equipment Company now, as well as in the trial court construes the statement as an effort by Owens to plead deceit (actionable fraud), a tort‘action. On the basis of the proof offered in the trial court and the position taken in this court counsel for Owens interprets a part of the quoted pleading as the statement of an action for breach of implied warranty of agency, an action ex contractu. All elements of either of the actions the parties suggest are not set out in the quoted pleading, and such actions at best are imperfectly plead.

The rule applicable to the construction of the quoted pleading may be found in Gulf, Colorado and Santa Fe Railway Company v. Bliss, Tex., 368 S.W.2d 594, in this language, to-wit:

“ * * * the petition will be construed as favorably as possible for the pleader. The court will look to the pleader’s intendment and the pleading will be upheld even if some element of a cause of action has not been specifically alleged. Every fact will be supplied that can reasonably be inferred from what is specifically stated. * * * ”

The appellee Owens’ brief argues the pleading sufficiently states a breach of implied warranty action because:

“Summarized, the appellee’s pleading was that the agent falsely represented to the plaintiff that he was the appellant’s agent and had full and complete authority from the appellant to contract on behalf of the appellant to sell and deliver the machinery to the appellee upon the described terms and conditions. Since the representation was false, it would seem fair to consider the allegation to be one that Baillio actually had no such authority.
“It is correct that the appellee did not state in so many words that Baillio falsely represented his authority and thereby impliedly warranted he had such authority; but the legal consequences of a false representation as to authority would be a conclusion of law. * * * ”

Although the construction Owens places on the language used is not inescapable, in the absence of objection the allegations appear sufficient to give Darr Equipment Company fair notice that Owens was suing Baillio individually for breach of an implied warranty of agency. Rule 45, Vernon’s Ann. Rules of Civil Procedure. •

Darr Equipment Company did not object to the imperfect pleadings and failure to object constituted waiver under Rule 90, V.A.T.R., and consent to a trial of the breach of implied warranty of agency action. Issues pertaining to venue when tried by the expressed or implied consent of the parties are treated in every respect as if they have been raised in the pleadings. Kroll v. Collins (Tex.Civ.App.1960), 340 S.W.2d 838, no writ; Burney v. Winfrey (Tex.Civ.App.1959), 329 S.W.2d 136, no writ; Pacific Finance Loans v. Ingram (Tex.Civ.App.1956), 290 S.W.2d 261, no writ; Western Irr. Co. v. Reeves County Land Co., (Tex.Civ.App.1950), 233 S.W.2d 599, no writ; Dillingham v. Associated Employers Lloyds (Tex.Civ.App.1950), 233 S.W.2d 191, no writ; Rule 67. See also Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688.

At the hearing on the plea of privilege Owens proceeded on the theory that defendant Baillio was a resident of Cass County and the agent of the defendant Darr Equipment Company in the sale to him, Owens, of a bulldozer equipped tractor, or alternately, defendant Baillio warranted such agency in the course of the sales transaction. Both Baillio and Darr Equipment Company denied that Baillio was an agent authorized to sell the tractor, insisting his agency was limited to soliciting offers from prospective buyers. However, Owens tendered evidence that Baillio impliedly warranted to Owens that he, Baillio, had authority as agent for Darr Equipment Company to sell the tractor. Evidence of the breach of such warranty was also produced. Darr Equipment Company argues Owens was on notice of Baillio’s limited authority by reason of a written contract Owens and Baillio signed evidencing the sale. The written instrument does not as a matter of law visit notice of Baillio’s limited authority upon Owens. The trial judge has resolved the fact issues created by the instrument against Darr Equipment Company.

The evidence tendered is sufficient to support Owens’ cause of action against Baillio, the resident defendant, for breach of an implied warranty of agency. Having impliedly warranted his authority to make the sale to Owens, upon it being proven that he was not authorized to do so, Baillio became personally liable for the damage occasioned to Owens by the breach. San Angelo Cotton Oil Company v. Houston County Oil Mill & Mfg. Co. (Tex.Civ.App.1916) 185 S.W. 887, no writ; Agency, 3 American Jur.2d 657, § 298; Restatement, Agency, 2d Ed. § 329. The implied warranty is contractual in nature and is an agreement collateral to the main purpose of the sales contract. Jones v. George, 61 Tex. 345; Sales, 50 Tex.Jur.2d 426, § 135. Proof of breach of such warranty does not require proof of the elements of a deceit action. Whittaker & Co. v. Hueske, 29 Tex. 355; Sales, 50 Tex.Jur.2d 428, § 136. The implication of the judgment rendered is that the trial court found the breach of warranty action in Owens’ favor. Such implied finding satisfies the requirement of § 4, Art. 1995, that Owens prove a valid cause of action against Baillio, the resident defendant, and failure to prove the deceit action became immaterial.

The previous opinion in this case is withdrawn and this substituted for it. Appellant’s motion for re-hearing is overruled. The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    Elton Leon WHITEHEAD, Appellant, v. Marilyn C. LOUT et vir, Appellees.
    No. 234.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 27, 1966.
    Rehearing Denied Dec. 1, 1966.

      Bill F. Griffin, Jr., Center, for appellant.
    Joe Davis Foster, Center, for appellees.
   SELLERS, Justice.

This is a suit for adoption of two children and is the second appeal of this case (See 395 S.W.2d 68). We refer to this reported case for a full statement of all the facts.

We deem it here sufficient to say that Elton Leon Whitehead, appellant, was the former husband of Mrs. Kenneth H. Lout •and to that marriage was born two boys, Randy and Rusty Whitehead. These parties were divorced in this Court and the care and custody of the children were placed with the mother with right of visitation by the father at all reasonable times. This decree likewise ordered the father to pay the sum of Fifteen Dollars ($15.00) per month for the support of each child. Some of the payments were made by the father shortly after the order was entered. Thereafter, Mrs. Whitehead was married to Kenneth H. Lout and Mr. Whitehead was also remarried.

Thereafter, Kenneth H. Lout, the ap-pellee, with his wife’s consent, filed suit in the same district court where the divorce decree was granted for permission to adopt the two boys of his wife. The consent of the father was denied and the ap-pellee sought and obtained the consent of the County Judge for permission to adopt the children. In securing the consent of the County Judge, they sought to follow the provisions of Article 46a, Sec. 6, of Vernon’s Ann., Tex.Civ.St, which provides as follows:

“Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if the living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child’s residence; or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child’s residence.”

This appeal is to be governed by a determination of the question of whether the evidence offered on the trial shows that the appellant violated this statute by failing to support the children for two years immediately prior to the judgment of adoption.

While the petition alleges abandonment of the children by the father as grounds for adoption, the trial court did not find abandonment as grounds for the Judge of the County Court to give the necessary consent of the father for the adoption but found only that the said Leon Whitehead had failed for two years to contribute to the support of the children commensurate with his ability to pay. In passing upon the evidence in this case to support the trial court’s finding of failure of Leon Whitehead to make child support payments for two years commensurate with his ability to pay, we desire to call attention to the construction placed on our adoption statutes by some of our courts. In the case of Lee v. Purvin, Tex.Civ.App., 285 S.W.2d 405, we find the following holding of that court:

“We think the public policy of this State, as expressed in all of the adoption statutes which have been enacted or amended by the Legislature from time to time, has been to protect the sanctity of the home and the natural relationship existing between parent and child by providing that no adoption of the normal offspring of worthy parents should be permitted except with the written consent of the living parents of the child sought to be adopted. Any other policy would, in our opinion, do violence to the fundamental concepts upon which our social order rests and would tend to establish a form of Statism not to be tolerated in this country. It is readily apparent from a casual reading of that portion of the adoption statutes above quoted that under its provisions no adoption is authorized except with the written consent of the living parents, unless such parent or parents shall have proven himself, herself, or themselves unworthy by abandoning and deserting for a period of two years the child sought to be adopted.”

In the case of Strode v. Silverman, Tex.Civ.App., 209 S.W.2d 415, it is held:

“ * * * Voluntary abandonment, as used in the adoption statute, does not include an act or a course of conduct pursued by a parent which is done through force of circumstances or dire necessity, but it is used more in a sense of a wilful act or course of conduct, and such as would imply a conscious disregard or indifference to such child in respect to the parental obligation that the parent owes to such child. * * * ”

The above case was recently cited, with approval by the Supreme Court in the case of Hendricks v. Curry, 401 S.W.2d 796. In the Hendricks case, the court further held that where consent to adoption of a child by the parents is required, the same can be withdrawn at any time before adoption decree is entered.

Applying this rule to the facts of this case, it would seem to this court that where the failure of Leon Whitehead to make child support payments ordered by the court was not due to a course of conduct on his part that would show a conscious disregard or indifference to such children, that Whitehead did have a right to come into court and pay into the court the child support for the two years in which he is charged with having failed to make payments, and thereby defeat the right of the appellees to adopt his children.

The facts with reference to Leon Whitehead’s failure to make payments are briefly as follows: No effort was made by the appellees during the two years complained of to require payment by contempt proceedings in the court, which they had a right to do. On more than one occasion, Leon Whitehead sent through the mail Post Office money orders for the children’s support which money orders were returned each time. He likewise sent Christmas presents for the children which were also returned. When the money was returned, the same was placed in a savings account for the children. Although he was given the right in the original divorce proceedings to visit the children at reasonable times, he was consistently denied the privilege of visiting with them. Before the judgment of adoption was entered, the court entered the following order which is self-explanatory:

“On the 15th day of January, 1965, came on to be heard Plaintiff’s application contained in his Original Petition to be allowed to visit with the minors, Elton Leran Whitehead and Robert Lee Whitehead * * *, and to be allowed to have contact with said children and to contribute to the support of said children and make gifts to them, and came the plaintiff Elton Leon Whitehead in person and by attorney and came the defendants by their attorney of record, and the Court, having heard and considered such application, is of the opinion that such application should be in all things denied;
“It is therefore ORDERED, ADJUDGED and DECREED that plaintiff’s said Application be and the same is hereby in all things denied.
“SIGNED AND ENTERED this the 7th day of May, 1965.
7s/ WARD CHANDLER
JUDGE PRESIDING”

Without a further discussion of the facts, it is our opinion that the trial court’s finding and conclusion that Leon Whitehead, the natural father, failed to contribute to the support of his minor children for more than two years commensurate with his ability is not sustained by the evidence. We are further of the opinion that the findings of the trial court in this regard are so clearly against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The judgment of adoption is therefore reversed and the cause remanded.


author: ARCHER, Chief Justice.

text:
    James BURT, Appellant, v. Francis J. ANDERSON, Appellee.
    No. 11452.
    Court of Civil Appeals of Texas. Austin.
    Nov. 9, 1966.

      Hyde, Tucker, Gano, Easterling & Brown, Paul K. Hyde, Dallas, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel, Dallas, for appellee.
   ARCHER, Chief Justice.

This case arises out of a rear end accident which occurred during the evening rush hour in the inside lane of a controlled access freeway in Dallas, Texas. It was brought about when traffic traveling at 60 miles per hour was suddenly stopped in an inside lane when a vehicle ran out of gas and stalled in that lane. The other three lanes to the right of the stalled vehicle continued to move at approximately 60 miles per hour. Vehicles behind the stalled automobile attempted to get into the other lane and go around. Two vehicles were unable to do so but did stop behind the stalled car. The appellant was also unable to get into the lane to the right due to the congestion and likewise stopped, becoming the fourth car in line. Immediately thereafter, other cars were able to get into the inside lane, but the appellee when suddenly confronted with the situation was unable to do so aiid collided with the rear of appellant’s automobile. The court submitted issues on appellee’s conduct with reference to his lookout, his speed, his timely application of brakes and the interval at which he was following. The jury in all things absolved the appellee and further found that the accident was unavoidable. The court rendered judgment that appellant take nothing.

The appeal is founded on seven points and are that the jury’s answers to Issues Nos. 1, 2, 3, 4, 6, 7, 12, 13 and 14 are contrary to the evidence, and the trial court erred in overruling plaintiff’s motion for judgment non obstante veredicto, and in overruling plaintiff’s amended motion for a new trial.

Plaintiff’s cause of action is based on four alleged separate acts of negligence, and that each of which were a proximate cause of the collision and resulting damages, and are:

1. In failing to keep a proper lookout,
2. In driving too fast,
3. In failing to make timely application of his brakes,
4. In following too closely,

and that because the defendant committed negligent acts, which were each a proximate cause of the collision, the collision cannot be unavoidable by definition. Therefore, the jury’s findings on Special Issue No. 14A was contrary to the great weight and preponderance of the evidence and was manifestly wrong and unjust.

The issues submitted to the jury inquired if the defendant failed to keep a proper lookout and the answer was that he did not, and the proximate cause issue was not answered; Special Issue No. 3 inquired if the defendant, Anderson, was driving his vehicle at an excessive rate of speed and the jury’s answer was No, and the negligence and proximate cause issues submitted conditionally were not answered. In answer to Issue No. 6 the jury found that the defendant did not fail to timely apply his brakes and did not answer Issues Nos. 7 and 8 conditioned on an affirmative answer to Issue No. 6; the jury found that the defendant did not fail to turn his vehicle immediately before the collision, and did not answer Issues 10 and 11 conditionally submitted.

In answer to Issue No. 12 the jury found that the defendant was not following the plaintiff’s vehicle more closely on the occasion in question than was reasonable and prudent having due regard for the speed of such vehicles and the traffic upon and the conditions of the highway, and did answer Issues Nos. 13 and 14 conditioned on an affirmative answer to Issue No. 12.

The jury found that the collision in question was the result of an unavoidable accident.

The jury found that the plaintiff sustained certain injuries and fixed the compensation at $4,000.00, $1,600.00 for medical and hospital bills, and fixed the damages to plaintiff’s automobile at $1,100.00.

Based on the verdict of the jury the court entered a take nothing judgment and awarded defendant his costs.

Plaintiff’s motion for judgment non ob-stante veredicto was overruled.

Plaintiff’s amended motion for a new trial was overruled.

We believe that the court was justified in entering the judgment that he did and did not err in failing to grant plaintiff’s motion for judgment non obstante veredicto, or in failing to grant a new trial.

Appellee asserts that appellant’s points Nos. 1, 2, 3 and 4 are of the “no evidence” variety, and that no predicate was laid by way of motion for new trial for “an insufficient evidence” ground of reversal, as is required under Rules 320, 324 and 374, Texas Rules of Civil Procedure, and that since appellant did not complain of insufficient evidence in his motion, he has waived that error, if any, and that the only relief which he can obtain on any of his points is reversal and rendition.

We believe appellee to be correct in this position.

See article by Judge Robert W. Calvert, 38 Texas Law Review, page 363, in which it is stated:

“(d) The fourth situation is not a true ‘no evidence’ situation. It usually arises when a jury finds the non-existence of a vital fact or gives a negative answer to an issue inquiring as to the existence of a vital fact, whether the fact be vital to a plaintiff’s claim or to an affirmative defense. Points of error in that situation which assert that there is no evidence of probative force to support the jury’s finding really miss the target. For example, what does it benefit a party that there is no evidence to support a jury finding that the opposite party did not commit a negligent act? Before a party is entitled to have a judgment based on the answer reversed and judgment rendered in his favor it must appear that the evidence establishes conclusively that the act was committed. In this situation it would be much better to forget the words ‘no evidence’ and assert in the point of error, as well as in the basic procedural steps in the trial court, that the evidence establishes conclusively, or as a matter of law, that the act was committed.”

At page 371 of his article Judge Calvert states:

“* * * if counsel wish to challenge the state of the evidence on appeal for the purpose of securing a reversal of a trial court’s judgment and a rendition of judgment, or, alternatively, a reversal and a remand for retrial, they must continue to present in Courts of Civil Appeals both ‘no evidence’ and ‘insufficient evidence’ point of error.”

We review the evidence in a light favorable to the jury finding.

Appellee testified that he had been traveling for 2 or 3 miles on the freeway before the accident and on the inside lane for Y2 to 3 miles, at SO to 55 miles per hour, maintaining an interval of 150 feet between his car and the car in front of him, and was 150 to 200 feet behind appellant’s car when he saw the brake lights come on, and attempted to get into the lane on his right and stop.

Witness Tom Ed Wilson testified that appellant stopped behind him and that 2 or 3 cars came up behind appellant and were able to get into the next lane, and while he (Wilson) was trying to see if he could get into the right hand lane he saw appellee making a similar attempt and throwing on his brakes and skidding.

There was no evidence that suggests that appellee was not at all times looking other than to the front except when he was trying to get into the right hand lane.

At any rate an issue of fact was raised and that is conclusive on this point. Great Atlantic & Pacific Tea Company v. Giles, Tex.Civ.App., 354 S.W.2d 410, er. ref., n. r. e.; Lovell v. Stanford, Tex.Civ.App., 386 S.W.2d 755, Sup.Ct.

Appellant cites among other cases Miller v. Wagoner, Tex.Civ.App., 356 S.W.2d 363, n. w. h., for the rule of law governing lookout in rear-end collisions.

In the Wagoner case a jury found that the defendant had failed to keep a proper lookout which was a proximate cause of the collision. This finding distinguishes that case from the instant case.

Grossman v. Tiner, Tex.Civ.App., 347 S.W.2d 627, er. ref., n. r. e., is a case holding that a fact issue exists as to whether the rear-ending party is guilty of improper lookout which was a proximate cause of the accident, and a jury found that the defendant was so guilty, and such finding was upheld.

E. K. Shetler, an accident investigator with the City of Dallas Police Department, testified that he was called to the scene of the accident and that it was a front to rear chain reaction type accident, that he did not see any skidmarks and that the speed limit was 60 miles an hour on the freeway.

The witness testified that by a rule of thumb a car length for every ten miles an hour was required in order to stop a car going 60 miles an hour, and that a distance of anywhere from 120 to 150 feet would, be a safe distance.

Special Issue No. 3 inquires as to whether or not appellee was driving his vehicle at any excessive rate of speed under the facts, and circumstances then existing upon the time and occasion in question and the jury-answered “No.” ,•

All witnesses agree that the traffic was moving at 60 miles per hour. The appellant testified he was going 50 to 55 miles per hour.

Speed in a situation like that existing furnishes nor more than a condition which is not actionable. Texas & Pacific Railway Co. v. Floyd, Tex.Civ.App., 309 S.W.2d 525, n. r. e.

It is a matter of speculation whether appellee would have been able to stop at a lower speed, and conducting himself as the others on the freeway, at least a fact issue exists as to whether such conduct amounted to negligence. Mooneyhan v. Benedict, Tex.Civ.App., 284 S.W.2d 741, n. r. e.

Appellant contends that the jury’s answer to Special Issues No. 12 and No. 13 were contrary to the evidence.

Special Issue No. 12 inquired if the appel-lee was following the appellant’s vehicle more closely than was reasonable and prudent having due regard for the speed of such vehicles and the traffic upon and condition of the highway and the jury answered that he was not, and they did not answer Issue No. 13 conditionally submitted which was proximate cause.

Article 6701d, Section 61(a), Vernon’s Annotated Civil Statutes describes the law in Texas regarding “following too closely” and is stated as follows:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and the conditions of the highway.”

Appellant claims that the appellee was guilty of negligence which was a proximate cause as a matter of law, and cites Erck v. Zelios, Tex.Civ.App., 401 S.W.2d 867, n. w. h.

The trial court did not err in refusing to set aside the jury finding to Special Issue No. 14A, the unavoidable accident finding.

Appellant has not in particulars shown that a condition or situation does not exist in the testimony upon which the jury could base its finding of unavoidable accident.

In Hoey v. Solt, Tex.Civ.App., 236 S.W.2d 244, n. w. h., situations are pointed out that “such conduct is excused by some extenuating circumstance or condition.”

The court did not err in overruling appellant’s motion for judgment non obstante veredicto.

We believe that appellant’s point No. 6 is too general and is overruled.

Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909, er. ref., n. r. e.

The judgment of the trial court is affirmed.

Affirmed.


text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. Elsa R. PEREZ et vir, Appellees.
    No. 14472.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1966.
    Rehearing Denied Nov. 23, 1966.

      Groce, Hebdon, Fahey & Smith, Ray A. Weed, San Antonio, for appellant.
    Robert O’Conor, Jr., Nat B. King, Laredo, for appellees.
   CADENA, Justice.

This is an appeal from an order of the District Court of Webb County overruling the plea of privilege of defendant, H. E. Butt Grocery Company, a corporation domiciled in Corpus Christi, Nueces County.

Plaintiff, Elsa R. Perez, joined by her husband, filed this suit to recover for physical injuries suffered by her due to fright, emotional shock and physical exertion resulting from her encounter, in the City of Laredo, Webb County, with an elephant which had escaped from the parking lot of a grocery store operated by defendant in that city.

The first count of the petition alleges that defendant permitted or caused to be kept, on a parking lot controlled by it, an elephant, and failed to keep the animal, or cause it to be kept, in such a manner as would absolutely prevent injury to others. It was further charged that the elephant, after escaping from the parking lot of defendant and roaming two miles through the streets of Laredo, entered the back yard of plaintiff’s home, passing in close proximity to her, trampling a swing set where her children customarily played and, after crashing through a concrete wall, ran into an adjoining yard.

The second count of the petition, couched in terms of nuisance, alleged that the elephant was insecurely kept on defendant’s premises.

The petition recited that plaintiff’s injuries resulted from the failure of defendant to keep the elephant securely on its premises, and from defendant’s failure to capture the beast, or cause it to be captured, within a reasonable time after its escape.

Plaintiff seeks to maintain venue in Webb County under Subd. 23 of Article 1995, Vernon’s Ann.Civ.St., which provides, insofar as here relevant, that suit against a corporation may be maintained in the county in which the cause of action arose.

Defendant contends that plaintiff failed to show a cause of action arising in Webb County for each of the following reasons: (1) in the absence of allegations and proof of negligence on the part of defendant, plaintiff has no cause of action, since the rule imposing “strict liability” on the keeper of a dangerous animal is not the law in Texas; (2) the evidence will not support a finding that defendant was the “keeper” of the elephant; and (3) the evidence is insufficient to show that any act of defendant was the proximate cause of plaintiff’s injuries.

1. Liability of Keeper of Dangerous Animals.

We do not deem it necessary to decide whether the rule of strict liability applies to the keeper of a dangerous animal in Texas. While plaintiff’s petition in this •case does not use the word “negligence” it does charge that defendant failed to keep the elephant securely, or to cause it to be so kept. It is further alleged that, after the animal had escaped, defendant failed to recapture it, or to cause it to be recaptured, within a reasonable time.

If an animal which causes injury is one which long experience has shown to be, because of its species, naturally dangerous and ferocious, its keeper is conclusively presumed to have notice of its propensity to do harm. Copley v. Wills, Tex.Civ.App., 152 S.W. 830, no writ; Prosser, Torts (3rd ed., 1964), § 75, p. 514. In Western countries, and even in India, an elephant is considered to be an animal which is dangerous by nature, even when “tamed,” so that its keeper is conclusively presumed to have notice of its dangerous propensities. Newman v. Cleveland Museum of Natural History, 143 Ohio St. 369, 55 N.E.2d 575; Scribner v. Kelley, 38 Barb. 14 (N.Y.); Behrems v. Bertram Mills Circus, Ltd., (1957) 2 Q.B. 1; Vedapurrati v. Koppan Mair, I.L.R., 35 Mad. 708.

It cannot be asserted that the keeper of an animal, known by him to be dangerous, is under no duty to’keep it securely, or that, in case of its escape, the keeper is under no duty to effect its recapture. The petition, then, clearly alleges a breach of duties owed by defendant to those who might reasonably be foreseen to be in the zone of danger should the elephant escape. Plaintiff’s petition sufficiently charges negligence on the part of defendant.

In any event, where a naturally dangerous animal escapes and does injury, allegations of the animal’s nature and of its escape are sufficient to establish a prima facie case of negligence. This was the precise holding in May v. Burdette, 9 Q. B. 101, 115 Eng.Rep. 1213, the case which is generally referred to as the origin of the doctrine of strict liability. In Congress & Empire Spring Co. v. Edgar, 99 U.S. 645, 25 L.Ed. 487, in discussing the liability of the keeper of animals known to be dangerous, said: “Compensation in such a case may be claimed of the owner or keeper for the injury; and it is an established rule of pleading that it is not necessary to aver negligence in the owner or keeper, as the burden is upon the defendant to disprove the implied imputation * * * ” 99 U.S. at p. 651, 25 L.Ed. 487.

The evidence in this case showed that the elephant escaped from premises, under the control of defendant and that, although one of defendant’s employees followed it in an automobile and kept it in sight, the animal eventually found its way into plaintiff’s yard, two miles from defendant’s store. This evidence was sufficient to warrant an inference of negligence. In Zuniga v. Storey, Tex.Civ.App., 239 S.W.2d 125, wr. ref., n. r. e., a bull escaped from a rodeo and, after running’ loose upon the streets of San Antonio, entered a yard in a residential area and gored', plaintiff. The testimony concerning the-manner in which the bull escaped was ini conflict. In holding that the trial court erred in instructing a verdict in favor of defendant, this Court, speaking through Justice Norvell, who now graces the bench of our Supreme Court, said: “The issue here is whether or not the evidence was sufficient to have supported a jury finding that appellees failed to discharge their duty to protect the public from an animali they were using for show purposes. Whichever version of the testimony be accepted, it appears that the bull made his escape while under the immediate control of appellees’ servants. Said servants failed to capture or restrain the animal until after he had run wild through the streets of San Antonio and inflicted serious bodily injury upon Mrs. Zuniga, who was two miles away from the place where the bull made his escape. From the evidence a jury could have properly concluded that appellees and their servants were negligent.” 239 S.W.2d at pp. 126, 127, emphasis added.

We conclude, without relying on the doctrine of strict liability, that the pleadings and the evidence were sufficient to support a finding of negligence on the part of defendant.

2. Defendant as "Keeper” of the Elephant.

The elephant in question was part of a carnival which began operating on defendant’s parking lot on Jan. 2, 1964, pursuant to arrangements made between the owner of the carnival and defendant at defendant’s home office in Nueces County. Defendant’s representatives in Laredo were ignorant of the details of the agreement between the carnival owner and defendant, and the record contains no evidence concerning the nature of such agreement. No representative of defendant took any part in the operation of the carnival. Defendant paid no money to the carnival owner, nor did defendant receive any part of the money realized from the carnival’s operation. Defendant, at its store, gave away “discount” tickets which were honored by the carnival. At night, the elephant was kept in a truck. During the day it was chained to a stake so that children could feed it popcorn and peanuts.

In answer to plaintiff’s request for admission, defendant stated that the purpose of having the carnival on the parking lot was to promote the business of defendant’s grocery store in Laredo.

The evidence is sufficient to show that defendant did not merely tolerate the elephant’s presence on premises within defendant’s control, but made arrangements for the animal’s presence there as a promotional scheme from which defendant hoped to derive some commercial or economic benefit. The fact that defendant, after actively procuring the presence of the beast on the parking lot, paid absolutely no attention to the manner in which the elephant was kept or to the measures taken to prevent its escape does not compel the conclusion that defendant was thereby relieved of liability. Defendant Was bound to know that the animal, from whose presence it hoped to profit, “was a dangerous animal which threatened injury to innocent people,” and the fact that defendant “closed its eyes to that condition is not a good defense to an action” by one who is injured by the animal. Serio v. American Brewing Co., 141 La. 290, 74 So. 998, 1001, L.R.A.1917E, 516. The fact that the animal is owned by a third person does not absolve a defendant who procured the presence of the animal on his premises for the purpose of making a profit as part of a promotional scheme. Stamp v. Eighty-Sixth Street Amusement Co., 95 Misc. 599, 159 N.Y.S. 683. Cf. Crunk v. Glover, 167 Neb. 816, 95 N.W.2d 135. In Texas a defendant has been held liable for injuries inflicted by a vicious dog kept on defendant’s premises by defendant’s porter, or defendant’s son. Barklow v. Avery, 40 Tex.Civ.App. 355, 89 S.W. 417, no writ; Gamer v. Winchester, Tex.Civ.App., 110 S.W.2d 1190, wr. dism.

3. Proximate Cause.

Defendant, relying on Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847 (1939), urges that the evidence is insufficient to establish that any conduct on its part was the proximate cause of plaintiff’s injuries, since the testimony shows that the fright and emotional shock which produced the injury were due to plaintiffs concern for the safety of her children.

Plaintiff testified that about noon on the day the elephant escaped she was in the kitchen of her home preparing lunch. She heard her mother, who lived next door, screaming, but the only word she understood was “children.” Plaintiff ran out the back door, and when she reached the area between her home and that of her mother, the enraged beast charged past her. The animal trampled a swing set, ran into the yard of plaintiff’s mother, crashed through a concrete wall, and ran into an adjoining yard. Plaintiff ran back into her house, screaming for her children. Being unable to find them, she ran to her mother’s back yard, through her mother’s house, and out the front door. She saw the elephant emerge from an adjoining yard and go into a vacant lot across the street, where a small boy began to strike the animal with a broom stick. Plaintiff ran back into her mother’s house and called the police.

Plaintiff testified that, during the incidents she described, she was very frightened. As a result of her experience, plaintiff, who was in the third month of pregnancy, suffered a miscarriage.

From this evidence, it must be admitted that reasonable minds could draw the inference that at least a part of plaintiff’s distress was due to concern for the safety of her children and of the unidentified youngster who was beating the enraged and trumpeting elephant with a stick. However, it cannot be said, as a matter of law, that such concern for the safety of others was the sole cause of her mental distress. The enraged animal was on plaintiff’s land, passed in close proximity to her, and destroyed property belonging to plaintiff. In these circumstances, it is not unreasonable to conclude that plaintiff was placed in apprehension of suffering injury herself.

In the Carey case, supra, plaintiff had no reason to fear for her own safety. She was not even cognizant of the nature of the event which caused injury to her husband. The Carey opinion, whatever the undisclosed reasoning on which it is based, cannot be applied to a situation where the dangerous condition or activity threatens physical injury to plaintiff, as well as to others. Where plaintiff, being in the zone of danger, is placed in fear of physical harm, physical injuries resulting from fright are not too remote to satisfy the rule relating to proximate cause. Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946). It would require an unusual degree of short-sightedness to hold that it is not reasonably foreseeable that a person who is suddenly confronted with the sight of a marauding elephant on his premises would not be put in fear of his life or of bodily harm. If such fear produces physical injury, it cannot be said, under Dorsett, that, as a matter of law, the physical injury is too remote.

Since, in this case, plaintiff herself was in the zone of danger, defendant’s contention amounts to no more than an argument that, before a defendant may be held liable, it must be held that he should have foreseen the precise manner in which the foreseeable harm occurred. Our Courts do not require such remarkable foresight. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957); Byrnes v. Stephens, Tex.Civ.App., 349 S.W.2d 611, no writ. Thus, it has been held that physical injury resulting from fear of being bitten by a dog is compen-sable. Netusil v. Novak, 120 Neb. 751, 235 N.W. 335. See Restatement, Torts, § 50f, comment f.

The judgment of the trial court is affirmed.

      . The cases relating to injuries by dangerous animals are collected in Anno: 69 A.L.B.. 500 (1937). A helpful analysis of these cases is found in McNeely, A footnote on Dangerous Animals, 37 Mich. B.Rev. 1181 (1939).
      In those Texas cases where adoption or rejection of the strict liability rule has been necessary to the decision, the Courts of Civil Appeals have, with apparently only one exception, applied the rule which imposes strict liability on one who keeps a dangerous animal with notice of its propensity to do harm. Copley v. Wills, 152 S.W. 830, no writ; Bly v. Swafford, 199 S.W.2d 1015, no writ; Moore v. McKay, 55 S.W.2d 865, no writ; Barklow v. Avery, 40 Tex.Civ.App. 355, 89 S.W. 417, no writ; Triolo v. Poster, 57 S.W. 898, no writ. Contra: Badali v. Smith, 37 S.W. 642, no writ. We are aware of no decision by the Texas Supreme Court on this precise point.


text:
    Margene ROBINSON, by Next Friend, et al., Appellants, v. Douglas MOORE et al., Appellees.
    No. 14512.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1966.
    Rehearing Denied Nov. 23, 1966.
    William C. McDonald, San Angelo, for appellants.
    Runge, Marschall, Hall & McLaughlin, San Angelo, for appellees.
   CADENA, Justice.

This is a suit by plaintiffs, Margene Robinson and her father, J! N. Robinson, against defendants, Douglas Moore and his parents, Kirby Moore and Doris Moore, to recover damages for what plaintiffs’ petition describes as the “seduction” of Miss Robinson by Douglas Moore. Plaintiffs appeal from an order of the trial court sustaining special exceptions filed by defendants and dismissing the suit.

According to the allegations in plaintiffs’ petition, which, as against special exceptions, must be taken as true, Miss Robinson, relying on the promise of Douglas Moore to marry her, consented to an act of intercourse with him on or about December 25, 1964, at which time she was a chaste female, aged 17. She became pregnant, giving birth to a child on October 3, 1965. The petition, alleging that the parents of Douglas Moore induced Miss Robinson to believe that they wanted her to marry their son, seeks recovery against them as “accessories.” Mr. Robinson seeks to recover for medical expenses incurred by him in connection with the confinement of his daughter.

The Courts of this State seem committed to the rule that a seduced female may not maintain a civil action against her seducer for the seduction alone. In Daggett v. Wallace, 75 Tex. 352, 13 S.W. 49 (1889), the Supreme Court, after holding that, in a suit for breach of promise to marry, the jury could, in determining the damages to which plaintiff was entitled, consider the fact that she had been seduced by defendant, added: “The policy of the law, it seems, refuses to recognize the right of the female seduced to recover solely for the seduction, and this upon the principle that she is not entitled to satisfaction from her partner in crime for the supposed injury to which she consents.” 13 S.W. at p. 50. See also Huggins v. Carey, 108 Tex. 358, 194 S.W. 133, 135 (1917); Nacim v. Ibarra, Tex.Civ.App., 310 S.W.2d 388, 390, wr. ref., n. r. e.; Welge v. Jenkins, Tex.Civ.App., 195 S.W. 272, 274, wr. ref.

Defendants insist that, since plaintiffs’ petition does not allege a cause of action for breach of promise to marry, it represents an attempt to recover solely for seduction, and that, under the authorities cited above, our Courts recognize no such cause of action.

In none of the cases relied on by defendants was the plaintiff a chaste female under the age of eighteen. Art. 1183, Vernon’s Ann. P.C. In Huggins, plaintiff was a widow, aged 28, and there is nothing in the other opinions indicating that plaintiff was under the age of 18.

Under our statute, carnal knowledge of a female under the age of eighteen is a felony, irrespective of her consent. The Courts in this country have uniformly taken the position that where the defendant’s act constitutes a violation of a statute, such as a rape statute fixing the age of consent to intercourse, which has as its primary purpose the protection of a definite class of persons from their own immaturity of judgment, the plaintiff’s consent is not a defense to a civil action. Gaither v. Meacham, 214 Ala. 343, 108 So. 2, 45 A.L.R. 777; Reutkemeier v. Nolte, 179 Iowa 342, 161 N.W. 290, L.R.A.1917D, 273; Herman v. Turner, 117 Kan. 733, 232 P. 864; Bishop v. Liston, 112 Neb. 559, 199 N.W. 825; Boyles v. Blankenhorn, 168 App.Div. 388, 153 N.Y.S. 466, aff’d., 220 N.Y. 624, 115 N.E. 443 (cf. Barton v. Bee Line, 238 App.Div. 501, 285 N.Y.S. 284); Priboth v. Haveron, 41 Okl. 692, 139 P. 973; Hough v. Iderhoff, 69 Or. 568, 139 P. 931, 51 L.R.A., N.S., 982; Huempfner v. Bailly, 36 S.D. 533, 156 N.W. 78; Glover v. Callahan, 299 Mass. 55, 12 N.E.2d 194; Restatement, Torts 2d, § 61. See also Hudson v. Craft, 33 Cal.2d 654, 204 P.2d 1, 7 A.L.R.2d 696, which is, perhaps, an extreme case. There a statute prohibiting unlicensed boxing matches was found to be filled with so many provisions for the protection of the boxers as to indicate an intention to protect them even though they consented.

In Altman v. Eckermann, Tex.Civ.App., 132 S.W. 523, no writ, a case in which the female plaintiff was thirteen years of age, the Court of Civil Appeals said: “Rape of a female gave her a cause of action at common law. Consent, of course, defeats the charge of rape where the party is capable of giving consent; but the appellant being under the age of consent as fixed by our statute, the allegations of appellant’s petition show rape by appellee upon appellant, for which she is entitled to her action for damages.”

Admittedly, the language quoted above may lose some of its effectiveness in view of the fact that the petition in Altman contained allegations that defendant had carnal knowledge of plaintiff by force and without her consent. But we believe that the view expressed in such language subserves the public policy clearly expressed by the Legislature in our rape statute and should be followed.

It has been suggested that to allow recovery by a woman under circumstances such as those presented by this case creates opportunity for extortion. Note, 7 Ford. L.Rev. 274 (1938). However, it would seem that if a girl under the age of eighteen was bent on extortion, the .threat of filing a criminal charge would be as effective as threat of a civil action in inducing a defendant to part with his money.

It follows that the trial court erred in dismissing Miss Robinson’s suit insofar as it sought recovery against defendant Douglas Moore.

The trial court also erred in dismissing the suit of J. N. Robinson against Douglas Moore for recovery of medical expenses paid by him in connection with the confinement of his daughter. Since Miss Robinson is a minor, she cannot recover for medical bills incurred by her parent. Mercer v. Evans, Tex.Civ.App., 173 S.W.2d 206, writ. ref. Since the parent is liable for the medical expenses in question, he is entitled to recover therefor. Coates v. Moore, Tex.Civ.App., 325 S.W.2d 401, no writ.

However, the trial court correctly sustained exceptions to that part of plaintiffs’ petition seeking recovery against defendants, Kirby Moore and Doris Moore. The fact that these defendants induced Miss Robinson to believe that they considered her a desirable wife for their son cannot support the inference, however liberally we construe plaintiffs’ pleadings, that they in any way encouraged, aided or abetted their son, or that they had any knowledge of the Yuletide incident which forms the basis of plaintiffs’ cause of action.

That portion of plaintiffs’ cause of action seeking recovery from Kirby and Doris Moore is severed from the remainder of the suit, and the order of the trial court dismissing plaintiffs’ cause of action against those defendants is affirmed. The judgment of the trial court dismissing plaintiffs’ suit against defendant, Douglas Moore, is reversed and the cause is remanded for further proceedings.

The costs of this appeal are taxed one-half against plaintiffs and one-half against defendant, Douglas Moore.


author: HOGAN, Judge.

text:
    A. P. CAMPBELL and Bonnie Lou Campbell, his wife, Leonard H. McFadden and Virginia L. McFadden, his wife, and William Faye Thomason and Esther Mabel Thomason, his wife, Plaintiffs-Appellants, v. Geraldine STOUT and Register R. Byrd, Defendants-Respondents.
    No. 8494.
    Springfield Court of Appeals. Missouri.
    Nov. 4, 1966.
    Dalton, Treasure & Bullard, Kennett, for plaintiffs-appellants.

      McHaney, Billings & Welman, Kennett, for defendants-respondents.
   HOGAN, Judge.

This is an action to enforce building restrictions on a lot located in Kennett, Missouri. The trial court sustained defendants’ motion for summary judgment, and the plaintiffs have appealed.

The case is before us on the pleadings, affidavits and exhibits filed; there are no depositions or formal admissions in the transcript. The factual background of the case, gathered from the pleadings, affidavits and exhibits, is as follows: In May 1956, defendant Stout laid out and platted a tract known as Barbara Heights Subdivision to the City of Kennett. The regularity of the dedication is not questioned, and it is unnecessary to describe the layout of the subdivision in detail. Generally, the plat shows that the subdivision consists of ten lots, laid out from north to south on either side of a central street, which is a cul-de-sac. The central street is open on the south, where it intersects a public highway which runs diagonally in a northeasterly-southwesterly direction along the south side of the subdivision, so that Lot 10, the southernmost lot on the west side of the central street, and Lot 6, which is opposite Lot 10 on the east side, are right triangles, with each hypotenuse abutting the highway. Lot 6 is considerably larger than the other lots and adjoins a motel on the northeast. The words of dedication on the plat- include the following paragraph:

“Easements are hereby granted unto the City of Kennett for the benefit of all owners in said subdivision of 10-foot strips of land in width at such points and locations in said subdivision as the City may select and designate by proper survey and plat for the purpose of placing therein, thereon and thereunder, and the maintaining of the same, such necessary poles, wires, pipes, conduits and other equipment for furnishing electricity, heat, light, water, power, gas, or any other public convenience desirable for a residential district; provided, however, the center line of such easements shall conform to the division lot lines and center lines of streets as shown on the plat of said subdivision, and provided the exercise of the rights thereunder does not interfere with any building or improvement located on the subject property, giving to the City of Kennett full rights of ingress and egress for said purposes.”

After the subdivision was laid out, Mrs. Stout built her own home on Lot 1. In February 1957, Mrs. Stout executed a contract with Mr. Byrd giving him the option to purchase Lots 3, 5, 8, 9, and 10 in the subdivision, and in March 1957 she executed another, similar agreement concerning Lots 2 and 4. Neither of these two contracts referred to any building restriction. However, at various times between February 12 and August 19, 1957, Mrs. Stout conveyed all the lots in the subdivision, except her own and Lot 6, to Mr. Byrd by warranty deed, and in each of these conveyances (there were five) there was inserted the following covenant, immediately after the description:

“Subject to the following restrictions: The Party of the second part, his heirs and assigns agree not to erect upon said premises any buildings designed or intended to be used for any purpose or purposes except as a private residence and any said residence shall meet and comply with existing minimum FHA requirements. This provision shall not be construed to apply to out buildings for domestic purposes to be used in connection with the residence.”

Lot 6 was purchased by Mr. Byrd under a somewhat different arrangement. On May 2, 1962,’Mrs. Stout and Mr. Byrd executed a lease agreement upon this property, by the terms of which Lot 6 was demised to Mr. Byrd for a period of eight years at an annual rental of $500.00. By .this instrument, Mr. Byrd is given an option to purchase the realty at any time during the term upon thirty days’ notice. It was agreed that upon exercising the option, Mr. Byrd might deposit the purchase price with a designated escrow agent and receive a warranty deed. It is not clear when the deed to Lot 6 was delivered to Mr. Byrd, but apparently Mrs. Stout executed a conveyance to him covering Lot 6 at the time the lease was executed; in any event, the deed was filed for record May 22, 1965. Neither the lease nor the deed involving Lot 6 contains any restrictive covenant.

Eleven residences have been built in the subdivision, all by Mr. Byrd. Each conforms to the restriction which we have set out, and there is no space for further construction in the subdivision except on Lot 6. The chain of title from Mrs. Stout to Mr. Byrd to the present plaintiffs is not quite complete upon the record, but the plaintiffs have alleged and offered to prove that the covenant mentioned was incorporated either expressly or by reference in all the deeds to all the purchasers to whom Mr. Byrd sold houses. One of the plaintiffs has made an affidavit that defendant Byrd represented to him that the subdivision was restricted. Defendant Byrd, immediately prior to the institution of tjhis action, was engaged in the construction of a medical office building on Lot 6. Other facts and evidentiary detail will be noticed in the course of the opinion.

First, though the parties have not and do not raise the question, we must examine our jurisdiction of the appeal. Taney County v. Addington, Mo.App., 296 S.W.2d 129 [1], As framed, the plaintiffs’ action was for an injunction against the construction, or for a declaratory judgment that there were valid building restrictions prohibiting it. There was no prayer for a money judgment, and of course the sole issue presented was the validity of the restriction or restrictions. Eilers v. Alewel, Mo., 393 S.W.2d 584, 586 [1], But even though these cases do not involve the title to real estate in the appellate jurisdictional sense, and even though there was no prayer for monetary relief, jurisdiction of the appeal might be vested in the Supreme Court by reason of the amount in dispute, if the money value of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa should the relief be denied, exceeds $15,000.00. Section 477.040, RSMo. (1959), V.A.M.S.; Eilers v. Alewel, supra, 393 S.W.2d at 586 [1]; Fleming v. Moore Brothers Realty Co., 363 Mo. 305, 308, 251 S.W.2d 8, 10. A concomitant to this “vice versa” rule is that the record must affirmatively show the value of such relief or loss to be in excess of $15,-000.00, independent of all contingencies, and the court may not indulge in speculation or conjecture to determine the amount in dispute for jurisdictional purposes. Dunbar v. Board of Zoning Adjustment, Mo., 380 S.W.2d 442, 445 [2,3]; Barnes v. Anchor Temple Ass’n., Mo., 369 S.W.2d 192, 193-194 [1-3]; Long v. Norwood Hills Corp., Mo., 360 S.W.2d 593, 596-597. The plaintiffs’ single allegation or statement concerning the money value of the relief sought, should it be granted or denied, is found in an affidavit made by one of the plaintiffs which contains the statement that defendant Byrd told him the proposed construction would depreciate the value of the individual plaintiffs’ homes. We may not therefore estimate the value of the relief sought to the plaintiffs in terms of an increase or decrease in the value of their property. However, the plaintiffs’ petition alleged that “either defendant Geraldine Stout or defendant Register R. Byrd are erecting . . . a clinic for four doctors.” One of defendant Byrd’s affidavits was that the planned construction would cost in excess of $40,000.00. One of the plaintiffs’ counter-affidavits contained a statement that the building permit issued by the City of Ken-, nett to Byrd looked to the construction of a clinic for four doctors at a cost of $24,-500.00. The plaintiffs represented in another affidavit that only a part of the foundation and a part of the plumbing work had been completed, and further represented that defendant Byrd had stated, “I’m certainly glad you stopped me when you did so I didn’t get more money involved in this project.”

Superficially, it might appear that this appeal involves a sum of money beyond our jurisdiction, particularly if we measure the loss of profit to the defendant should the relief be granted or denied by the value of the building Byrd planned to construct. By that measure he is either granted or denied the right to improve Lot 6 with a building ostensibly worth $24,500.00 or $40,000.00, either of which sums would remove the cause from our jurisdiction. Nevertheless, the requirement of an affirmative showing, and the prohibition against speculation and conjecture in determining the amount in dispute, require, in our view, more positive and definite proof of the ultimate benefit or damage to the defendant than is shown upon this record. The plaintiffs do not contend for a single-residence restriction; the possible ultimate value of all of Lot 6 used for residential purposes is not contrasted or compared to the contemplated use, as was the case in Veal v. City of St. Louis, 365 Mo. 836, 839, 289 S.W.2d 7, 9 [1], nor is there evidence that defendant Byrd stood to lose a large sum invested in partial construction, or that he had obligated himself in a sum beyond our jurisdiction, as was true in Fleming v. Moore Brothers Realty Co., supra, 363 Mo. 305, 251 S.W.2d 8. Admitting to some hesitation, we conclude that we have jurisdiction of this appeal.

Returning to the merits, we again note that the appeal is taken from the entry of a summary judgment. The record must therefore be viewed in a light most favorable to the plaintiffs, against whom judgment was entered. Cooper v. Finke, Mo., 376 S.W.2d 225, 228-229 [2]. If we consider the plaintiffs’ affidavits as showing what competent testimony is available, 3 Barron & Holtzoff, Federal Practice and Procedure, Section 1236, p. 82 (Supp.1965), and consider the face of the writings received by the trial court, the record in essence shows: (1) That a common grantor, Mrs. Stout, filed a plat of the subdivision in which she granted easements for electricity, heat, lights, power, gas, “or any other public convenience desirable for a residential district”; (2) that in conveying all but one lot in the subdivision, the common grantor inserted a restrictive covenant by the terms of which the grantees and their heirs agreed not to construct any building for any purpose “ * * * except as a private residence”; (3) that eleven houses, all conforming to the restriction mentioned, have been built in the subdivision and there is no building space left except on Lot 6; (4) that defendant Byrd built all the houses, and at one time or another held title to all the restricted lots; (5) that defendant Byrd made a statement capable of construction as a present representation of fact to one of the plaintiffs that use of all the land was restricted to residential purposes. The plaintiffs’ position is that a covenant, servitude or negative easement, as one chooses to call it, restricting the use of Lot 6 to residential purposes should be inferred from the language of the plat and the insertion of restrictive covenants in the deeds to all the property except Lots 1 and 6, or alternatively that such a restriction can and should be inferred as a matter of equity from the writings considered together with the defendants’ course of conduct in developing the subdivision. The defendants remind us that restrictions upon the use of real property are not favored in Missouri, that instruments creating such restrictions are strictly construed and are not to be extended by implication to include anything not clearly expressed, and point to the fact that nothing in the writings presented to the trial court imports any obligation on the part of the common grantor to restrict the use of Lot 6.

There is considerable force to the defendants’ argument, particularly on the face of the documents involved. It has been repeatedly stated that restrictions upon the use of land must either be expressly stated or most clearly inferable from a writing', Chiles v. Fuchs, 363 Mo. 114, 118—119, 249 S.W.2d 454, 456-457 [2] [4, 5]; Zinn v. Sidler, 268 Mo. 680, 688-689, 187 S.W. 1172, 1174, L.R.A.1917A 455, and any ambiguity must be resolved in favor of free use of the property. Steve Vogli & Co. v. Lane, Mo., 405 S.W.2d 885, 889 [4-6]; Barnes v. Anchor Temple Ass’n., Mo.App., 369 S.W.2d 893, 898 [1, 2], Manifestly, it would do violence to these precedents to expand the phrase “or any other public convenience desirable for a residential district” into a restrictive covenant, and likewise, if we have regard for the form of the covenants contained in the deeds to Lots 2, 3, 4, 5, 7, 8, 9 and 10, the obligations are all the grantees’; nothing apparent on the face of these deeds obligates the grantor to restrict Lot 6 in favor of the plaintiffs. Kuhn v. Saum, 316 Mo. 805, 810, 291 S.W. 104, 105-106 [2],

On the other hand, there is a strong line of current general authority which supports plaintiffs’ basic legal theory that when a common grantor develops a tract of land for sale pursuant to a general plan or scheme of improvement, and sells a substantial number of lots subject to restrictions of benefit to the land retained, then the grantees acquire an equitable right, variously called a reciprocal negative easement or implied reciprocal servitude, to enforce a similar restriction against the purchaser of the unrestricted lots who has actual or constructive notice of the restrictions. These cases generally hold, in varying language, that the intent to make such restrictions mutual and binding may be inferred from the subdivider’s sale of his tract pursuant to a uniform plan or scheme, although, as the defendants point out, the precedents are not uniform and cannot be fully harmonized or reconciled. The principle that unrestricted lots may become subject to such a negative easement or implied reciprocal servitude by reason of having been sold pursuant to a general scheme of improvement has been recognized in this jurisdiction, Kuhn v. Saum, supra, 316 Mo. at 810-811, 291 S.W. at 106, and see Scurlock, Missouri Law of Land Agreements which Run with the Fee, 23 U.Kan.City L.Rev. 3, 47-49, although we agree with the respondents that one cannot say the doctrine applied in Michigan was fully adopted in that case.

It would serve no useful purpose, however, to enter upon an abstract discussion of the law as it might be applied if we could extrapolate record facts sufficient to resolve the merits of this case. Though the case involves matters of considerable financial importance, and the law involved is certainly complex, the whole of the forty-one page transcript before us, omitting pleadings and formal matters, consists of seven affidavits, with three exhibits. Three of these affidavits were made by Mr. Byrd, and one of them is “explanatory” of another. The basic question before us, after all, is whether a summary judgment should have been entered, and we conclude that the case should not have been disposed of in that fashion. Upon an incomplete research, we have the tentative view that the kind of implied restriction for which the plaintiffs contend is actually raised and enforced upon very elementary principles of equity, though the language used is that of traditional property law. Cook v. Bandeen, supra, 356 Mich. 328, 96 N.W.2d at 747-748 [9]; Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 194 Pac. 536, 538—540 [3], Generally it may be said that the question whether restrictions were imposed pursuant to a general scheme or plan of improvement is to be determined by the intention of the parties, as gathered from the words used in the light of all the facts and circumstances, 26 C.J.S. Deeds § 167 (2), pp. 1147-1151, and we are inclined to agree with the observation made in Hagan v. Sabal Palms, Inc., Fla.App., 186 So.2d 302, 314-315 [19] [20], in a somewhat similar situation, to the effect that the law concerning these implied restrictions appears complex precisely because the result in each case involves a balancing of the equities, which must be determined from the facts. The scanty record before us indicates support for the positions of both parties, but no testimony of any kind has been heard, and because in any such case there are many subjective factual considerations involved which could conceivably be decisive one way or the other, we think the final result can only be fairly arrived at after a trial on the merits. The summary judgment procedure is not a substitute for a trial on the merits, Cooper v. Finke, supra, 376 S.W.2d at 229 [4], and in our view the plaintiffs should have been permitted to develop the relevant facts and circumstances. It is so ordered.

STONE, P. J., concurs.

TITUS, J., not participating, because not a member of the court when this case was submitted.

      . Grange v. Korff, 248 Iowa 118, 79 N.W.2d 743, 747-748 [3] [6]; Rieger v. Wessel, Ky., 319 S.W.2d 855, 857-858 [2—1]; Turner v. Brocato, 206 Md. 336, 111 A.2d 855, 864-865 [16]; Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496, 497 [1-5], 60 A.L.R. 1212, 1214-1215; Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673, 678-679 [2, 3] [4]; 2 American Law of Property, § 9.33, pp. 430-432 (1952); Annos., 4 A.L.R.2d 1364 (1949); 144 A.L.R. 916 (1943); 60 A.L.R. 1216 (1929).

      . Turner v. Brocato, supra, 206 Md. 336, 111 A.2d at 865; Cook v. Bandeen, 356 Mich. 328, 96 N.W.2d 743, 747 [8]; Minner v. City of Lynchburg, supra, 204 Va. 180, 129 S.E.2d at 679; 20 Am.Jur.2d Covenants, Conditions and Restrictions, Sections 173 and 175, pp. 732-735, 736-738.


author: WADDILL, Commissioner.

text:
    Zelda WAGNER, Appellant, v. COLONIAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Frank G. Gilliam, William S. Black, Lexington, for appellant.
    Robert M. Odear, Leslie W. Morris, II, Stoll, Keenon & Park, Lexington, for ap-pellee.
   WADDILL, Commissioner.

This is the second appeal of this case. On the first appeal we reversed the judgment in favor of the beneficiary of the insurance policy in question and held, in summary, that the beneficiary was not entitled to recover because “Under the terms of the policy the act [of shooting the assured was not accidental but] was intentional and therefore specifically excluded from the coverage.” Colonial Life & Accident Insurance Company v. Wagner, Ky., 380 S.W.2d 224.

Following remand of the case to the circuit court, the Insurance Company, relying upon the law of the case set forth in our former opinion, moved for summary judgment. CR 56.02. In response to this motion the affidavit of Dr. Graham Dim-mick, a psychologist was filed wherein he stated that Warren Shockley, the person who shot and killed the assured, was, at the time he committed this act, “temporarily insane” and therefore not mentally capable of distinguishing between “right and wrong.” The circuit court sustained the motion for summary judgment and entered judgment accordingly.

On the present appeal it is contended that an injury inflicted upon another by an insane person cannot be held as a matter of law to be intentional and, therefore, the question of whether Shockley had the mental capacity to intentionally injure the assured was for the jury.

The contention is now unavailing since our former opinion in this case determined that, irrespective of whether Shockley was insane, the gunshot wounds which caused the death of the assured were “intentionally inflicted” as this term is used in the policy.

The judgment is affirmed.


text:
    DEPARTMENT OF REVENUE, Appellant, v. M. B. BEDERMAN and Kentucky Board of Tax Appeals, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Robert Matthews, Atty. Gen., William S. Riley, Cyril E. Shadowen, Dept, of Revenue, Frankfort, for appellant.
    William P. Curlin, Jr., Hazelrigg & Cox, Frankfort, Jack T. Page, Kentucky Board of Tax Appeals, Pikeville, for appellee.
   WADDILL, Commissioner.

The Kentucky Department of Revenue (hereinafter referred to as department) has asked this court to review an order of the Franklin Circuit Court dismissing its attempted appeal from an order of the Kentucky Board of Tax Appeals (hereinafter called board). The order of dismissal was predicated in part on the fact that the hoard was not made a party to the appeal. The governing rule, in an administrative proceeding where the right of appeal is conferred by statute, is that strict compliance with its provisions is required. Roberts v. Watts, Ky., 258 S.W.2d 513.

The department contends the statute does not require the board be made a party. We cannot agree. KRS 131.370 (1) directs that a copy of the petition shall be filed “with the board and all other parties against whom the appeal is prosecuted” and subsection (2) (stripped of its qualifying phrases) directs that summons shall issue to the adverse party and to the board. These provisions, we have said, indicate the board is to be named as a party to the appeal. Commonwealth, Department of Revenue v. Schmid, Ky., 404 S.W.2d 458. Moreover, if the board is not made a party to the appeal no summons could be issued to the board as required by the statute.

Under the facts presented in Commonwealth v. Schmid, supra, we were willing to accept the Attorney General as a party to the appeal in lieu of the department. However, in the instant case there is no justification for relaxing the strict requirements of this statute. The determination of other questions raised is reserved as being unnecessary to the proper disposition of this appeal.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Scynus PARROTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Eugene Goss, Harlan, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

Appellant was convicted of transporting alcoholic beverages for the purpose of sale in local option territory, was fined $20, and sentenced to 30 days in jail. Three questions are raised.

Appellant was apprehended by a state trooper. This trooper had seen him loading in a car what appeared to be cases of beer or whiskey and had later arrested him for certain traffic violations (of which appellant was subsequently acquitted). The trooper then obtained a search warrant and upon searching appellant’s car found a quantity of alcoholic beverages.

It is first contended that the evidence obtained under the search warrant should be suppressed because the warrant was not directed specifically to the state trooper. The warrant was directed “to any Sheriff, Constable, Jailer, Marshal, or Policeman, of Harlan County”.

KRS 16.060, in referring to the state police, provides as follows:

“ * * * each officer of the department is individually vested with the powers of a peace officer and shall have in all parts of the state the same powers with respect to criminal matters and enforcement of the laws relating thereto as sheriffs, constables and police officers in their respective jurisdictions, * *

The state trooper was acting as a police officer when he served this warrant. He falls within the designation of “Policeman”.

Even if he was not technically a “policeman”, he was certainly a peace officer who could have been directed to serve this warrant. KRS 242.370(2) provides that “any officer” receiving such a warrant shall immediately execute it. In our opinion such a paper may be served by a person to whom it lawfully could be directed.

It may be observed that a warrant of arrest is required to be directed to “all peace officers” in the Commonwealth (RCr 2.06), and it may be executed by “any peace officer” (RCr 2.10(1)). See also KRS 431.-005. No reason is apparent why the technical designation of specific peace officers should deprive other such officers of their authority when such warrant is delivered to them for execution. Certainly no rights of a defendant are adversely affected.

A search warrant, in this respect, is in the same category as a warrant of arrest. If directed to any peace officer, it is directed to all who have authority to act within the jurisdiction involved. We conclude that the state trooper had authority to serve this warrant and the evidence obtained by virtue of it was admissible.

It is next contended the search was unreasonable because the defendant was improperly detained while the search warrant was procured. We do not know on what ground this detention, even if improper, could affect the validity of a search made pursuant to a valid search warrant. Appellant’s car could have been lawfully searched whether or not he had been detained. The evidence obtained should be suppressed only if the search was unreasonable. Regardless of what preceded it, it was authorized by the warrant and was therefore lawful.

It is finally contended the affidavit upon which the search warrant was based was insufficient to show probable cause. The state trooper himself made the affidavit and therein he recited that he observed the defendant load the trunk of his automobile behind a liquor store' with “what appeared to be cases of beer or whiskey”. Appellant says these facts raised only a suspicion. However, we believe that when one is observed loading the trunk of his car with cases of something at the rear of a liquor store, it is rather probable that the content of the cases is liquor.

The judgment is affirmed.