author: O’QUINN, Justice.

text:
    MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Roy BERNHARDT et al., Appellees.
    No. 11509.
    Court of Civil Appeals of Texas Austin.
    June 28, 1967.
    Rehearing Denied Sept. 13, 1967.

      Graves, Dougherty, Gee, Hearon, Moody & Garwood, Dan Moody, Jr., John E. Clark, Austin, for appellant.
    Barkley, Cutcher & Alderson, James L. Cutcher, Taylor, for appellees.
   O’QUINN, Justice.

The Bernhardts, father and son, brought this lawsuit for damages resulting from a nighttime railroad crossing accident when the son, then a minor 19 years old, while driving his automobile home alone, collided with the side of a freight train stopped across a farm-to-market road.

Plaintiffs pleaded in their original petition, that defendant, Missouri-Kansas-Texas Railroad Company, was negligent by parking the train so as to block the road, by failing to station a flagman at the crossing, and by failing to place a warning light and a mechanical signal bell at the crossing. The railroad company answered and excepted to plaintiffs’ pleas of negligence. The trial court sustained the exceptions. Plaintiffs amended and pleaded that the crossing was extrahazardous and that the railroad was negligent in failing to take extraordinary measures to warn young Bernhardt of the presence of the train on the crossing.

Defendant railroad, company again excepted to plaintiffs’ pleadings, contending that the pleadings failed to raise the question of extrahazardous crossing, and did not raise the question of notice of the condition to the railroad company' Defendant also excepted to the allegations of negligence for failure to state even a prima facie case unless the crossing was extrahazardous.

The trial court overruled the railroad’s exceptions, but in the order overruling the pleas the court expressly found “that plaintiffs’ right of recovery, if any, against defendant is dependent upon whether the crossing in question was extrahazardous on the occasion in question.” The cause went to trial, in May, 1966, on this basis, to which plaintiffs did not except.

The case was tried before a jury, upon whose verdict on special issues the trial court entered judgment for plaintiffs. Defendant timely moved for judgment notwithstanding the verdict and, after judgment, for new trial, which motions the trial court overruled.

The railroad company has appealed, assigning twenty-five points of error.

The principal question to be decided is whether the finding of the jury, in answer to special issue No. 1, that the crossing was extrahazardous, is supported by the evidence.

The collision from which this lawsuit derives occurred shortly before midnight on November 14, 1961, at a crossing on FM 1331 near Circleville, about four miles north of Taylor, in Williamson County. The road runs generally east and west and crosses the railroad tracks at a sixty-degree angle about 1250 feet east of the intersection of FM 1331 with Highway 95. Young Bernhardt, a student at Temple Junior College, but living at home and working part-time in Taylor, was on his way home from Taylor, where he had been studying with his girl friend, when the accident happened.

The Bernhardts lived on FM 1331 a few miles east of the crossing. The route followed by young Bernhardt was north on Highway 95 from Taylor about four miles to the intersection with FM 1331, thence turning east toward home on FM 1331. He collided with the freight train sitting on the tracks across the road about 1250 feet east from Highway 95. At the trial young Bernhardt testified he had no memory of events after turning off Highway 95. The evidence is undisputed that his automobile collided with the side of a gondola car and that skid marks measuring about sixty-six feet led up to the rear tires of his automobile.

The crossing is a rural, unlighted crossing, equipped with standard railroad cross-arm signs on each side of the crossing and on the right for roadway traffic approaching the crossing. The customary signs were in place on the roadway giving warning of a railroad crossing ahead. Bernhardt used the crossing every day going to and from home and was familiar with it.

It is undisputed that the night was dark and that there had been some rain. The same weather conditions at the crossing prevailed generally throughout the area and had been about the same at least an hour or more prior to the accident. The witnesses were not in agreement as to how hard it was raining, whether the night was foggy, and how much the rain and fog might limit a driver’s vision.

Appellant’s train was stalled across FM 1331 because of a pulled drawbar, or coupling, followed by automatic set of air brakes on the entire train consisting of about 150 cars. The engine of the freight train, which was southbound toward Taylor, slipped and pulled a drawbar on the sixth car behind the engine. It was possible to move the engine and the six cars attached to it, after releasing the brakes, but the balance of the train, detached from the small section and engine, could not be moved forward or backward without first removing the damaged car to allow the engine portion to reestablish normal connections through the air brake system. This could be done only by hauling the damaged car into Taylor, where it could be set out, and returning the engine and five attached cars to the stalled portion of the train.

This procedure took nearly an hour. Meanwhile the cars blocking the crossing could not be moved. The stalled section remained across the roadway, with the caboose about eleven cars, or 450 to 500 feet, north of the crossing and the balance of the stalled portion stretching nearly a mile toward Taylor on the south side of the crossing. The engine with five cars had returned from Taylor and renewed connection with the stalled section when the collision occurred. The train had not been moved after recoupling because there had not been sufficient time to build up the air pressure necessary to release the brakes and allow the train to move.

Two members of the train crew, including T. W. Wallace, the conductor, were in the caboose at the time of the collision. All others of the crew were at the head end of the train, about a mile toward Taylor. Wallace testified that in the period the crossing was blocked, and before Bernhardt collided with the train, he saw three other cars approach the crossing from the same side Bernhardt approached. These cars stopped and turned back along FM 1331. The conductor saw Bernhardt’s car when it turned off Highway 95 onto FM 1331 and watched it driven eastward toward the crossing. As Bernhardt was closer to the crossing, Wallace observed from the car’s speed that it was not going to stop. Owing to a slight curve in the tracks, Bernhardt’s car went out of the conductor’s vision before actually striking the train, but Wallace heard the impact.

When the collision occurred, Wallace immediately called the engineer by radio and told him to “lap his brake valve and not move.” This put the train back in emergency with brakes set. Wallace called the town of Granger and requested police, an ambulance, a doctor and a wrecker. Wallace and the other crew member in the caboose then went to the crossing, where they lifted Bernhardt out of his car and extinguished a fire that had started in the carburetor. Wallace remained on the scene until he was told by the highway patrolman who arrived to investigate the accident that the train could be moved.

Wallace testified that while he waited in the caboose for the engine to return from Taylor the night was “kind of misty.” When asked about the condition of the weather later he described it as “misty rain” but “no fog.” The engineer also testified there was no fog. The highway patrolman, Travis Thomas, testified that generally the weather was a mixture of rain and fog the night of the accident, with the fog “patchy” and the “rain itself not too heavy.” He described visibility as poor, with enough moisture that he used windshield wipers driving from Taylor to the scene. Young Bernhardt testified that after he left his girl friend’s house and started driving home “it was misting rain” and there were patches of fog.

At the time of the collision Wallace and the crew member with him in the caboose were able to see Bernhardt’s car as it turned from Highway 95 onto FM 1331, a distance of 1250 feet from the crossing, and observe the automobile from that point until just before it struck the train. A little bend in the tracks obscured the actual impact from them. The caboose was about eleven cars from the crossing, a distance of 450 to 500 feet.

Appellees, the Bernhardts, pleaded that the crossing was extrahazardous due to conditions and circumstances under three headings, as follows:

1.FM 1331 is built up as it approaches the crossing in such manner as to resemble a small hill. An automobile approaching the crossing starts uphill immediately before crossing the tracks. The lights of an automobile approaching the crossing at night would not shine high enough for a parked train on the crossing to be seen. The train could not be seen by a driver approaching the crossing at night until the driver had started up the incline or hill. At this time the driver under normal circumstances would not have sufficient time to stop his automobile before colliding with the parked train.

2. On the night of the accident “it was misting rain and foggy.”

3. The railroad company had parked a freight train across the crossing. The box cars on the crossing did not have lights on them. There was nothing on the box cars and nothing at the crossing “to apprise, warn or notify the said Roy L. Bernhardt, or any other persons, that such box cars were on said track completely blocking said crossing at said time.”

The question as to what constitutes an extrahazardous railroad crossing has been before the courts of this state in numerous cases. We are concerned in this cause primarily with the law of these cases as applied to railroad crossings at night.

The Supreme Court in 1953, in a case involving an accident at night on a crossing over a farm-to-market road, after reviewing ten prior decisions involving crossing accidents, said that

“These cases clearly hold that an extra-hazardous crossing may arise (1) from permanent conditions, or (2) from temporary conditions which make the crossing extra-hazardous at the time the injury occurs.
“But in the latter situation the substantial conditions rendering a crossing temporarily extra-hazardous, must be due to some act or omission of the railway employees, because only under those circumstances could the defendant know or fairly be charged with knowledge that the crossing is temporarily extra-hazardous.” Karr v. Panhandle & Sante Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925, 930, col. 1.

The permanent condition appellees pleaded had to do with the slope, or change of level on FM 1331 in approaching the crossing from the west. Specifically, the allegation was that “said Farm-to-Market Road is built up as it approaches said crossing in such manner as to resemble a small hill.” Appellees alleged that an automobile making this approach would start up the hill “immediately prior to crossing” the tracks, and that it was not until the driver reached this point of ascent that his lights would shine on the train across the roadway. At that time, appellees asserted, a driver under normal circumstances would not have enough time to stop before hitting the train.

Young Bernhardt testified that the only conditions that could have prevented him from seeing the train on the night of the collision were “the weather and the slope.”

That there were no obstructions at or near the crossing to keep an approaching driver from seeing the train is uncon-troverted. It appears that the conditions briefly described as the slope on the roadway and the weather that night constituted the only basis for contending the crossing was extrahazardous at the time.

It was undisputed that at a point on the road west of the crossing there was a “dip” in the road, from which the incline led up to the crossing itself. The dip was between the crossing and a rise on the road west of the crossing. On various exhibits introduced in evidence the dip was referred to as point “C” and the crossing was called point “B.” The rise west of the crossing was point “A.” Appellees alleged in effect that lights of an automobile approaching the crossing from the west would not shine on a train standing on the crossing until the driver reached point “C” and started up the incline toward the crossing.

The highway patrolman, who did not measure the distance, and had not seen the crossing for about five years at the time of trial, testified that the distance from point- “C,” the dip, to the crossing was approximately 150 feet. He arrived at this distance by estimating the distance from the top of the rise to the crossing to be about 100 yards (300 feet) and estimating that the dip was about half way between the rise and the crossing. The patrolman testified that when he arrived to investigate the accident, he saw the train by his headlights as he started up the incline “just past point C,” the dip.

Bernhardt, Senior, father of the injured young man, testified that he made measurements on the ground with a steel tape. He found that the distance from the tracks to the point he took to be the low point (the dip, point C) was 264 feet. Young Bernhardt testified he did not measure any distances. He accepted the distances estimated by the highway patrolman. Thomas, the patrolman, characterized the distances he estimated as “just a guess” and added, “They may not be real accurate.”

Appellant introduced exhibits showing distances and elevations along the roadway from Highway 95 to the railroad crossing, a distance of some 1250 feet. The exhibits were offered through G. P. Pargen, a registered public surveyor, who made the measurements and prepared the exhibits.

Pargen testified that the distance from the dip, point C, to the crossing was 250 feet. He also testified that from the top of the rise to the crossing the distance was 650 feet, the same distance the patrolman estimated from memory to be 300 feet.

The patrolman estimated that from point C to the crossing the incline rose about three to six feet. Bernhardt, Senior, estimated that the change in elevation was .about six feet. Neither of them made any measurements to determine elevation. Measurement by Pargen showed the rise in elevation from point C to the crossing to be 3.7 feet.

The Pargen profiles from Highway 95 to the crossing, along the 1250 feet of FM 1331, disclose an undulating roadway with two low areas and one rise in that distance. The first low point occurs 250 feet east of Highway 95 and 1,000 feet from the crossing. This point is 5.4 feet lower than Highway 95 and 3.3 feet lower than the crossing. The rise is about half way, being 650 feet from the crossing, and is 3.3 feet higher than the crossing. The second low point is point C, which is 250 feet from the crossing and 3.7 feet lower than the top of the tracks.

The profiles show that point C, referred to as the dip, is actually the middle point of a 200-foot stretch of road that at its west end is about 11 inches higher than the dip, and at its east end is less than 20 inches above the elevation of the dip. From the dip, or point C, to the crossing, a distance of 250 feet, the rise of 3.7 feet to the crossing is gratfual, with no sharp changes.

It appears undisputed that at a point approximately 480 feet from the crossing the roadway is at the same elevation as the crossing. From that point to the crossing an automobile approaching the crossing will pass through a hammock 480 feet long, with its lowest elevation at point C, already shown to be 250 feet from the crossing.

Appellant offered in evidence nine photographs, being Defendant’s Exhibit 7 through 15, showing the crossing on a dark night. In some of the pictures a freight train is across the roadway and the same railroad car with which young Bernhardt collided is sitting on the crossing. The pictures were taken from inside an automobile of the same make and model driven by Bernhardt on the night of the accident, using the headlights of the automobile as the source of illumination.

The picture marked Exhibit 11 was taken at point C, 250 feet from the crossing, looking in the direction traveled by young Bernhardt the night of the collision. The same railroad car he struck is shown in the picture blocking the roadway at the crossing. The letters and figures, “M-K-T 760,” are legible on the railroad car across the roadway. The standard cross-arms on both sides of the tracks are visible in the picture. Another picture, Exhibit 8, was taken at a point 350 feet from the crossing, showing the crossing blocked by the train in the same manner as in Exhibit 11. In this picture the letters and figures on the railroad car are visible, as well as the standard cross-arms on both sides of the tracks.

The Commission of Appeals in 1927 approved an instruction to a jury, in a case involving a nighttime crossing, in which the jury was charged that “ * * * a nighttime crossing would not be more than ordinarily dangerous unless its condition was such that a reasonably prudent person could not, by the exercise or ordinary care, use the same with safety.” Missouri, K. & T. Ry. Co. v. Long, Tex.Comm.App., 299 S.W. 854, 855, cols. 1, 2.

In two companion cases decided in 1934 the San Antonio Court of Civil Appeals held that the presence of a train upon the crossing was sufficient warning to the driver, who ran an automobile into the side of a slowly moving train, and did not render the crossing extrahazardous. Texas & N. O. R. Co. v. Stratton et ux., Tex.Civ.App., San Antonio, 74 S.W.2d 741 (writ ref.); Texas & N. O. R. Co. v. Stratton et al., Tex.Civ.App., San Antonio, 74 S.W.2d 746 (writ ref.). The accident in the Stratton cases occurred at an unlighted rural crossing on a night that was “foggy and the visibility was bad.” The driver of the car skidded about 60 feet before striking the side of the train.

In considering the visibility factor as a condition sufficient or not to establish that the crossing was more than an ordinarily hazardous nighttime crossing, Justice Murray, speaking for the court, said:

“It occurs to this court that whether the visibility was good or bad the trainmen had a right to presume that people using the highway would drive at a rate of speed which would permit them to bring their automobile to a full stop if within the reach of their lights it should be discovered that the highway was blocked by a slow moving train.” 74 S.W.2d 741, 743, col. 2.

The Stratton cases make no distinction between a slowly moving train and one that is stopped if the train is already occupying the crossing when the collision occurs. The first Stratton case cites a Delaware case for the proposition that presence of the train “lawfully standing across the highway” is sufficient warning. Philadelphia & R. Ry. Co. v. Dillon, 114 A. 62, 65; cited and quoted 74 S.W.2d 741, 743, col. 1.

The Stratton cases have been cited by other Texas courts in cases involving standing trains. Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., Eastland, 78 S.W.2d 714 (no writ); Kypfer v. Texas & P. Ry. Co., Tex.Civ.App., El Paso, 88 S.W.2d 528 (writ dsmd.) ; Walker v. Texas & N. O. R. Co., Tex.Civ.App., Galveston, 150 S.W.2d 853 (writ dsmd., jmt. cor.); Reid v. Texas & New Orleans R. Co., Tex.Civ.App., Galveston, 254 S.W.2d 164 (writ ref., n. r. e.).

In Texas & N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113, (1940) the Commission of Appeals had before it a case in which the driver of an automobile drove into the side of a slowly moving freight train at night at an unlighted rural crossing. “The night was dark” the court said, “and foggy and the visibility was poor.” The Supreme Court adopted the opinion of the Commission, written by Judge Hickman, holding that the crossing was not extra-hazardous. Judge Hickman concluded, “It would be difficult to conceive of a railroad crossing at which the hazards would be more obvious than at this one.”

The Supreme Court, in Fort Worth & Denver Railway Company v. Williams, 375 S.W.2d 279 (Tex.1964), recognized that the Stratton cases and the Compton case “ * * hold that the presence of a train on a crossing blocking a public highway does not in itself constitute an extrahazardous crossing.” 375 S.W.2d 279, 283, col. 2.

In the Williams case, supra, 375 S.W.2d 279, 283, the Supreme Court observed that “ * * * the question as to whether a crossing is extrahazardous necessarily depends upon the facts of each case.”

It is the settled rule in this state that a train lawfully standing on a crossing at night does not of itself cause the crossing to be more than ordinarily hazardous. If the night is dark and foggy and visibility is bad, these additional conditions will not, even when coupled with the presence of the train, make the crossing an extrahazardous nighttime crossing.

Under the facts of the case before this Court, there remains only to decide whether the crossing was extrahazardous due to some permanent condition. The only permanent condition we can consider is the slope or incline leading up to the crossing from the west.

We have concluded that there is no evidence to support the finding of the jury, in answer to special issue No. 1, that the crossing was more than an ordinarily hazardous nighttime crossing.

It was clearly demonstrated at the trial that the lights of an automobile approaching the crossing from the west will shine directly upon a train standing on the crossing when the automobile is as far away as 250 feet from the tracks. All the witnesses agreed the lights of an automobile will shine on the train at the crossing as soon as the car starts up the last incline toward the crossing. The highway patrolman, who did not measure the distance, admitted that his estimate was only a guess and “may not be real accurate.” He estimated the distance to be about 150 feet. Young Bernhardt in his testimony simply agreed with the patrolman’s guess.

Bernhardt, Senior, after measuring the distance with a steel tape, testified that the ascent from point C, along the incline toward the crossing, began 264 feet west of the tracks. There was no testimony that from point C to the tracks the lights of an automobile would not shine on a train standing on the crossing.

Young Bernhardt testified that since the accident he had driven the same stretch of roadway leading up to the crossing from the west at night. He found that as he started up the last incline, toward the tracks from point C, his lights would shine on the crossing so he could see something if it were on the crossing.

Defendant’s Exhibit No. 8, a picture taken 350 feet from the crossing, shows the lights of an automobile of the same make, year, and model driven by young Bernhardt shining upon the same railroad car the young man drove into the night he was hurt. Clearly there was no obstruction presented by the slope or incline to prevent Bernhardt from seeing the train a distance of 250 to 350 feet before coming to the crossing.

Thomas, the highway patrolman, went directly to the scene of the accident from Taylor, apparently traveling the same course followed by young Bernhardt leading up to the collision. The weather conditions were the same as when the collision occurred. The train occupied the crossing exactly as it had when struck by Bernhardt’s automobile. Thomas agreed with the Bernhardts that at point C, the beginning of the incline toward the tracks, the railroad car on the track across the road was visible in his headlights.

In his capacity as an investigating officer, Thomas appears to have been trying, as he approached the scene of the accident, “to determine how difficult it was to see, — if that was part of the accident and it was difficult to see.” The testimony of the patrolman touching upon his approach to the crossing and at what point he was able to see the train in his headlights was in part as follows:

“Q Now, then, as I understand it on this night when you were coming out there, and when you were driving up, I suppose you approached the scene of this collision from the same direction that Mr. Bernhardt apparently did, is that correct?
A Yes.
Q And when you were coming up there, as I understood it, you said that you had some trouble seeing the train until your lights, you started up past point C, is that right?
A Yes.
Q Am I correct in understanding that when you got to the bottom of this dip, if we will call it that, and you started up the incline, that then your lights were on the train. Is that what you are telling us ?
A That’s exactly it.
Q I want to be sure we understand what you are telling us. In other words, referring to your diagram, when your car, if this is the bottom of the dip we will say right here, when your car got to that, started like right there, I’m not very good at drawing cars you see, that’s when you are telling us that your lights hit the train, is that right?
A As I remember it, when we started up grade.
Q As you started upgrade, your lights shined on the boxcar?
A Yes, sir. I remember making, in other words, trying to determine how difficult it was to see, — if that was part of the accident and it was difficult to see.
Q Now, then, I want to understand' when it was difficult. Are you telling me it was difficult when you were going between point A and C now, is that right?
A I said it was difficult, more difficult than it ordinarily would be because of the weather, motionlessness of the train, and the terrain, — a combination of those factors.
Q But then after you got past point C, your lights did shine on—
A My headlights picked it up and I detected what it is. You can see it, sure.
Q Well, I’m trying to find out as best you can tell us when this took place. I take it that it took place about where I’ve drawn that little purple—
A I’d say there or closer to the point B.
Q Well, when you start up the incline, is that right?
A Yes.
Q All right. Now, then, at that point, you could see the boxcar on the track on the, across the road?
A Uh huh.
Q It was then visibile in your head lights ?
A Yes.”

Young Bernhardt testified that as he drove toward home the night of the accident he was traveling 45 to 50 miles an hour. The jury found in effect that Bernhardt was driving an automobile equipped with proper lights. Thomas testified that Bernhardt’s tires laid down about 66 feet of skid marks before his car struck the train. The patrolman also testified that the normal reaction time for a driver to apply his brakes is one-half to three-quarters of a second. Using notes made of his investigation and employing charts used by the department of public safety, Thomas estimated that an automobile traveling 45 miles an hour, or 66 feet per second, on wet pavement would require “at least 120 to 130 feet” to stop, including reaction time of the driver.

Bernhardt’s automobile struck the train with such force that the doors on the car were jammed and Bernhardt was pinned down with the steering wheel on his chest. His legs were pinned to the seat by the driving post. The railroad crewmen who extricated Bernhardt from the wreck had to take “some time to get” the door open, and when they “finally got the door open and bent this steering wheel off of his chest,” they then “removed him from the wreckage.”

Appellees pleaded the trainmen should have placed lights on the box cars at the crossing and should have taken other steps at the crossing “to apprise, warn or notify the said Roy L. Bernhardt, or any other persons, that such box cars were on said track completely blocking said crossing at said time.”

We have decided that the trainmen had a right to assume that Bernhardt would act in a reasonable way to avoid running into the train while it was lawfully standing across the roadway. The railroad crewmen were entitled to assume that a reasonably careful person, driving an automobile on a roadway at night, under adverse weather conditions, will use such lights and travel at such rate of speed that he will be able to stop his automobile within the distance he can plainly see by his headlights a railroad car standing across the roadway motionless on the railroad track and effectually obstructing passage over a straight unobstructed roadway. The trainmen had a right to assume that Bernhardt would drive in this manner, and the railroad did not omit to perform any duty by not showing lights or giving other warning of the presence of the train standing on the crossing. Stratton cases, supra 74 S.W.2d 741, 743, 745; 74 S.W.2d 746, 748.

In the recent case of Missouri-Kansas-Texas Railroad Co. v. Wagner, Tex.Civ.App., Waco, 400 S.W.2d 357 (writ ref., n. r.e.), the court found an unobstructed nighttime crossing, with which the driver was familiar, not to be extrahazardous. The driver of the automobile approached the crossing with his lights on dim and struck a slowly moving train. Skid marks extended back a distance of 66 feet from the railroad. The court observed that the driver had seen the train “at some distance, more than 66 feet from the railroad,” since the skid marks measured that distance. “Therefore,” the court pointed out, “his lights picked up the train * * * at some point back from the time he applied his brakes.” The court cited the Stratton cases, supra. The court held that the driver “was guilty of negligence as a matter of law in running into the caboose.” 400 S.W.2d 357, 361, col. 2.

We believe there is no evidence to support the finding of the jury that the crossing on the night young Bernhardt collided with the train standing on the tracks was an extrahazardous crossing. We hold that the crossing at the time as not an ex-trahazardous crossing as a matter of law. As was observed in Walker v. Texas & N. O. R. Co., supra, 150 S.W.2d 853, 857, col. 2, “The foggy condition rendered the crossing more than ordinarily dangerous * * * in the same way and to the same extent, that it rendered every other part of the highway more than ordinarily dangerous.” At least three other drivers were observed to stop and turn back at the crossing while the train was stalled across the roadway and before young Bernhardt drove into the side of the train with such momentum that it thrust the steering wheel onto his chest and caused the driving post to pin his legs to the seat.

We conclude that the only condition that rendered the crossing more than ordinarily dangerous as a nighttime crossing on the night Bernhardt collided with the train was the weather, with rain and some fog. Since the danger was caused by the weather, including fog, and applied to all driving on the roadway, railroad crossings included, the railroad had no duty to warn of danger arising from the rain and fog. Walker v. Texas & N. O. R. Co., supra, 150 S.W.2d 853, 857.

This appeal presents a number of questions arising from the record and assigned by appellants as error: The first of these questions we have decided in holding that there was no evidence to support the jury’s finding that the crossing at the time of the accident was extrahazardous. Appellant carefully preserved this point at every stage of the proceedings in district court. Among other steps, appellant at the appropriate time moved for judgment notwithstanding the verdict.

Our conclusion on this point makes it unnecessary to discuss other questions. The trial court should have rendered judgment for appellant notwithstanding the verdict, for which reason the judgment must be reversed and judgment be rendered that plaintiffs take nothing.

The judgment of the district court is accordingly reversed and rendered for appellant.

Reversed and rendered.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    William VELASQUEZ et al., Appellants, v. Senaida Velasquez CRUZ, Appellee.
    No. 6918.
    Court of Civil Appeals of Texas. Beaumont.
    June 22, 1967.

      C. C. Divine, Houston, for appellants.
    E. Leon Phillips, Pasadena, for appel-lee.
   STEPHENSON, Justice.

This is an action in trespass to try title. Trial was before the court and judgment was rendered for defendant and that plaintiffs take nothing. No findings of fact nor conclusions of law were requested or filed. The parties will be referred to here as they were in the trial court.

Plaintiffs alleged: That the property involved in this suit had been the homestead of their father and mother. That their mother died and their father, desiring to protect the homestead rights for the unmarried children, induced plaintiffs to convey their interest to him. That the father then conveyed the title to this property to the two unmarried children, Juan Velasquez, Jr., and defendant, Senaida Velasquez. That when Juan Velasquez, Jr. married, the father induced him to convey his interest to the defendant. That such deeds were executed by plaintiffs upon representation to them that this was the only way the unmarried children could maintain the homestead of their father and mother, and that upon the marriage of these two children, the title to the property would be reconveyed to them. That when defendant married she refused to reconvey such interest to plaintiffs.

Plaintiffs’ six points of error are: In ruling that plaintiffs failed to establish a common source of title; in ruling that plaintiffs failed to show an interest in the title to such property; in ruling that plaintiffs’ pleading and proof failed to impress a trust upon the title to said property; in ruling that defendant’s conduct was not fraud; in ruling that plaintiffs’ cause of action was not established by the evidence; in refusing to apply the principles of equity and impose a trust to reconvey upon defendant and in granting a take nothing judgment against plaintiffs.

The statement of facts shows that the trial court admitted in evidence a deed from Juan Velasquez, Sr. to Juan Velasquez, Jr. and the defendant, Senaida Velasquez and also a deed from Juan Velasquez, Jr. and wife to the defendant conveying the property in question. There is also an admission by defendant that her only claim to title is under these two deeds. All of the testimony as to the representations alleged by plaintiffs in their petition was excluded by the court, and was included in this record only as a bill of exception. There is no point of error complaining of the action of the trial court in excluding such testimony.

The evidence offered in the bill of exception would have the effect of showing that the grantors in the deeds were conveying to the defendant the title to the property only so long as she remained single. The deeds under which defendant claims convey a fee simple title without reservation. The trial court properly excluded any parol evidence which would tend to vary the terms of such conveyances so as to show a different estate had been conveyed. The rule that permits parol proof to explain the true consideration for a conveyance in certain instances, has no application to the factual situation in this case. Such rule cannot have application when the parol proof has the effect of limiting, qualifying, or imposing a condition upon the estate conveyed; and especially if the attempt is to show a reservation of an interest in contradiction of the clear import of the conveyance. Russell v. Russell (Tex.Com.App.), 120 S.W.2d 793.

The parol evidence rule as commonly expressed is to the effect that in the absence of fraud, accident or mistake, parol or extrinsic evidence is not admissible to contradict or vary the terms of a written instrument. The general allegations contained in plaintiffs’ petition could be construed as alleging fraud, inasmuch as it is stated that false representations were made both as to the homestead law and the fact that the property would be reconveyed. But, there is nothing in the evidence, either admitted or in the hill of exception, showing the defendant made such representations or was connected with them. No actionable fraud on the part of defendant was proved. All of plaintiffs’ points of error are overruled.

Affirmed.


author: PER CURIAM.

text:
    The ASSOCIATED PRESS, Appellant, v. Edwin A. WALKER, Appellee.
    No. 16624.
    Court of Civil Appeals of Texas. Fort Worth.
    July 21, 1967.
    Rehearing Denied Sept. 22, 1967.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and J. A. Gooch, Carlisle Cravens, and Sloan B. Blair, Fort Worth, for appellant.
    Looney, Watts, Looney, Nichols & Johnson, Oklahoma City, Okl.; Andress, Woodgate, Richards & Condos, and William Andress, Jr., Dallas, for appellee.
   PER CURIAM.

OPINION

On July 30, 1965, this Court affirmed a judgment of the trial court in which General Walker had been awarded judgment against The Associated Press in a libel action. Associated Press v. Walker, 393 S.W.2d 671 (writ ref. n. r. e.).

Subsequently, the case was brought before the Supreme Court of the United States by virtue of a writ of certiorari.

On June 12, 1967, the Supreme Court concluded that General Walker was not entitled to damages from The Associated Press. The judgment in favor of General Walker was reversed and this Court was instructed to act in conformity with the judgment of the Supreme Court. Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094.

In complience with the judgment and mandate of the Supreme Court, we hereby set aside our prior judgment of affirmance and hereby reverse the judgment of the trial court and render judgment that General Walker recover nothing from The Associated Press, and that The Associated Press recover from Edwin A. Walker all costs as per mandate of the Supreme Court.


author: WILSON, Justice.

text:
    PAN AMERICAN GAS COMPANY, Appellant, v. NATURAL GAS CONSTRUCTION CORPORATION et al., Appellees.
    No. 4622.
    Court of Civil Appeals of Texas. Waco.
    July 20, 1967.
    Rehearing Denied Aug. 10, 1967.
    Charles L. Cartwright, Fountain, Cox & Gaines, Joyce Cox, Joe G. Roady, Houston, for appellant.
    Blades, Crain, Slator, Winters & Ross, Newton M. Crain, Jr., C. Daniel Jones, Houston, for appellees.
   OPINION

WILSON, Justice.

Plaintiff appeals from a take-nothing judgment rendered on a jury verdict.

After construction of a pipeline by plaintiff’s contractor, the claim of the landowner for damages to its electric transmission towers was settled pursuant to an indemnity agreement in the easement grant from the landowner to plaintiff. After the settlement plaintiff sued the contractors and their bond surety, seeking, among other relief, recovery of approximately $22,000 paid in settlement of the landowner’s claim.

The case turns on plaintiff’s contentions that there is no evidence, or insufficient evidence, to support negative jury answers to issues as to whether plaintiff was “reasonably justified” and “acted in good faith” in making the settlement by payment of the $22,000. In our opinion the evidence is legally and factually adequate, and we affirm.

Where an indemnitee voluntarily settles a claim of its indemnitor (absent an unconditional contractual right to settle) without obtaining a judicial determination of its liability, it assumes the burden in its action for reimbursement of proving facts which might have rendered it liable to the claimant, “as well as the reasonableness of the amount which it paid”. It is necessary for it “to establish that from its standpoint the settlement was made in good faith and was reasonable and prudent under the circumstances”. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 497; Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, 779.

Plaintiff argues that because the contractors admitted that they had caused some damage to the towers, and since there is other convincing evidence that some damage was caused by the contractor, effect should not be given to the answer to the good faith and justification issue. The argument is answered by the requirement that plaintiff must establish “the reasonableness of the amount which it paid.” Mitchell’s, Inc. v. Friedman, above. The jury was authorized to return a negative answer to the inquiry (as to whether plaintiff acted in good faith and was reasonably justified in making the settlement) if the evidence sustains the concomitant element that plaintiff failed to establish by a preponderance of the evidence that the entire $22,000 paid was reasonable. This, because the jury was limited by the wording of the issue: “by payment of the amount of” the entire $22,000. There is no objection to the issue.

There is evidence that this was the sum initially demanded by the landowner; that at least a part of the tower damage resulted from selection of a pipeline location too close to the towers; (that if it had been ten feet away damage would not have resulted) ; that corrosive action of the elements damaged towers in the area; that the $22,000 claim included the cost of new material to replace that which was old and depreciated; that there were other unrelated causes of the damages claimed; that there was no effort to reduce the amount of the landowner’s claim by negotiation. A pipeline expert on plaintiff’s staff, who investigated the claim, stated he never came to a conclusion “or even an idea of really what caused the damage.” A report by engineers employed by plaintiff concluded, “It would be extremely difficult to establish precisely the cause of the damage”, listing other possible causes. We overrule the evidence points. It is consequently unnecessary to pass on any of plaintiff’s other points, except those relating to issue No. 1.

The first issue asked whether the jury found from a preponderance of the evidence that any damage to the towers was sustained in connection with, or arose out of the construction of the pipeline by the contractor. The jury answered, “We do not.” Plaintiff complains that the issue is evidentiary, there is no evidence to support the answer, and the answer is contrary to the overwhelming preponderance of the evidence.

The complaint that the issue is evi-dentiary is not preserved in the motion for new trial, and therefore may not be considered.

Since the answers to the inquiries concerning good faith and justification in settling are evidentially supported, the first issue is immaterial, and any asserted error concerning it is harmless. Appellant’s points are overruled.

Affirmed.


author: PARKER, Justice.

text:
    The AETNA CASUALTY & SURETY COMPANY, Appellant, v. Raymond A. TUCKER, Appellee.
    No. 6910.
    Court of Civil Appeals of Texas. Beaumont.
    June 15, 1967.
    Rehearing Denied Sept. 6, 1967.
    King, Sharfstein & Rienstra, Beaumont, for appellant.
    Waldman & Smallwood, Beaumont, for appellee.
   PARKER, Justice.

This is a workmen’s compensation suit. Raymond A. Tucker, as plaintiff, sued the Aetna Casualty & Surety Company, as defendant, to recover benefits as the result of injuries to his stomach, internal organs, back and body while working for E. I. du Pont de Nemours & Company, Inc. Trial was to a jury. On the jury verdict, judgment was entered in favor of plaintiff for $7,179.27 upon jury findings of total disability for 104 weeks and partial disability for an additional 104 weeks. Defendant has appealed and will be designated as appellant. Plaintiff in the trial court will be designated appellee.

Appellee’s original petition alleged the injury occurred on or about February 25, 1965. Appellee’s notice of injury and claim for compensation filed by him with the Industrial Accident Board of Texas set forth an injury occurring on or about February 25, 1965. In each instance the injury alleged by appellee is the same as to its nature. The injury actually occurred on or about February 2, 1965. At the beginning of the trial attorney for appellee stated the injury occurred on or about February 2, 1965, requesting permission to file a trial amendment correcting the date to allege the accident occurred on or about February 2, 1965. Counsel for appellant in open court stated he had no objection to the filing of such trial amendment. The court granted permission to appellee to file a trial amendment. Special issue No. 1 as submitted to the jury is as follows:

“Do you find from a preponderance of the evidence that plaintiff sustained an injury on or about the 2nd day of February, 1965?”

to which the jury answered, “We do”. Prior to this injury of 1965 appellee had a back injury in 1953, a hernia in 1958, and a lung injury from inhaling fumes from gaseous chemicals in 1954, 1955 or 1956. From the evidence no possibility existed that the back injury of 1953 or any of the other injuries would be confused by the trial court or the jury with the injury inquired of in special issue No. 1 above whether it was on the 2nd, 3rd or 25th day of February, 1965. Appellant contends there is a material variance between the date of injury made the basis of appellee’s claim and that found by the jury upon trial and that the trial court erred in not dismissing this cause for want of jurisdiction. Variance in these dates is not significant as there is no danger of confusion of injuries sued upon with any other injury. Texas Employers’ Ins. Ass’n v. Patterson, 231 S.W.2d 898 (Tex.Civ.App. 1950, err. ref.); Consolidated Underwriters v. Wright, 408 S.W.2d 140 (Tex.Civ.App. 1966, err. ref. n.r.e.). The appellant had the same information available as the appellee had as to the real date of the injury of February, 1965. The claim submitted to the Industrial Accident Board and the claim asserted in the instant lawsuit are one and the same. The trial court had jurisdiction. Appellant’s point of error with reference to this matter is overruled.

Appellant contends the trial court erred in excluding that portion of a petition filed by appellee in a prior workmen’s compensation suit wherein it was alleged that in 1953 appellee was totally and permanently disabled as the result of a low back injury. Appellant urges that such 1953 pleading was admissible as a party admission and also for impeachment purposes.

First, we will consider the admissibility of the 1953 petition for impeachment purposes. For the purposes of his bill of exceptions, appellant’s counsel was permitted to ask appellee if he had claimed the 1953 back injury had resulted in total and permanent disability, and appellee answered:

“Well, from what I know, the papers that was filed, I don’t know whether I could answer you yes or no, because I don’t know what was filed in them.”

By way of further answer to the persistent questioning by defense counsel on this point, appellee further testified as follows:

“A. Really and truthfully, I don’t know how he (the attorney who had represented him in his claim arising out of the 1953 back injury) had it wrote up. I was claiming a back injury.
Q. Were you claiming any disability?
A. Yes, I was claiming disability.
Q. Were you claiming total disability?
A. But I don’t know how he had it said.”

The evidence further shows that appellee was unable to work for some two years after the 1953 injury. Appellee admitted he was seriously injured. His version was that some two years after the 1953 occurrence he tried to build himself up to work; that some six months later he “was as good a man as I ever was.” His work record showed that he had held jobs involving hard work for nine years prior to 1965. The petition of appellee in the 1953 suit was not admissible for impeachment purposes. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 338 (Tex.1963); Aetna Casualty & Surety Co. v. Depoister, 393 S.W.2d 822 (Tex.Civ.App.1965, wr.ref., n.r.e.); 63 Tex.Jur.2d 450, 451; Sec. 425, Workmen’s Compensation; St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962).

Next, petition offered by appellant, which was excluded, is considered as to whether it was offered and admissible as a party admission. Counsel for appellant during the trial when appellee Tucker was on the stand asked: “Now, back at the time of that injury, weren’t you claiming that back injury resulted in total and permanent disability?” Before Tucker could answer the question objection was made by counsel for appellee. The trial court excused the jury. During the lengthy argument before the court counsel for appellant contended he was entitled to have the question answered for the following reason:

“Your Honor, of course, if Mr. Tucker says, ‘Yes, ’ I think that’s the end of it, and I’m not allowed to impeach him with this, but if he denies that, of course, then I have a perfect right to introduce in evidence the inconsistency of the judicial admission by virture of this petition.”

Counsel for appellant contended that the question of admissibility of the petition of the 1953 suit would be predicated upon a “no” answer to the question propounded to •Tucker.

From the testimony of Tucker hereinbefore quoted from the bill of exceptions, the appellee stated that in 1953 as a result of his back injury he was claiming total and permanent disability. The answer of Tucker was “yes”. Counsel for appellant did not urge to the trial court that by asking this question of appellee he was laying a predicate for party admission, only urging the question should be answered as a predicate for impeachment. No error was committed by the trial court by excluding from evidence that part of the petition in the 1953 suit filed by appel-lee relating to his back injury, claiming total and permanent disability. Appellee was questioned about his 1953 injury and stated his inability to work for two years, that after two and a half years he was able to work and that he did work for nine years in this type of work. Dr. Copeland testified that the 1965 injury caused the back injury. Dr. Bruce Stephenson, who was a witness for appellant, did not state that ap-pellee was suffering from a 1953 back injury. On the contrary, he testified appel-lee had no back injury at the time he examined him in September of 1965. Dr. Stephenson never saw any x-rays of appellee’s back taken in 1953. If the trial court erred in excluding the 1953 petition offered by appellant, the claimed error does not amount to such a denial of the rights to appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case not did it prevent the appellant from making a proper presentation of the case to this court. If error, it was harmless error.

Appellant contends there is insufficient evidence to support the jury’s finding that appellee sustained an injury on or about February 2, 1965. This court is required to consider and weigh all the evidence in the case in considering this point of error. Appellee testified the accident occurred on February 2, 1965. He reported the injury to his foreman the next day. He was sent by his employer to Dr. Mink-us on February 3, 1965, who referred him to Dr. Tarride. DuPont’s records show that he had seen Dr. Tarride on February 3, 1965. Appellee admitted that he had made an error when he testified in his deposition that the injury occurred on February 25, 1965. The February 2, 1965 date was corroborated by the witness, Alfred Heath, who was working with appellee at the time he was injured. This point of error is overrruled.

Judgment of the trial court is affirmed.


author: L. F. COTTEY, Special Judge.

text:
    STATE of Missouri ex rel. William R. “Bill” NICHOLS, Relator-Appellant, v. Preston S. SCHMOUTEY, Laclede County Clerk, Defendant-Respondent.
    No. 8675.
    Springfield Court of Appeals. Missouri.
    July 31, 1967.
    Motion for Rehearing or to Transfer Denied to Supreme Court Aug. 30, 1967.
    Application to Transfer Denied Oct. 9, 1967.
    H. Dean Whipple, J. W. Grossenheider, Lebanon, for relator-appellant.
    Low & Honssinger, Lebanon, for defendant-respondent.
   L. F. COTTEY, Special Judge.

In form, this is a proceeding in mandamus; but in substance and object it is so clearly an election contest that we wonder at its being brought up in this fashion. It is an old and settled rule that mandamus cannot be employed to accomplish the purpose of an election contest. Barnes v. Gottschalk, 3 Mo.App. 111, 120; State ex rel. and to Use of Averill v. Baird, 217 Mo.App. 362, 278 S.W. 416, 417; State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153, 154. Worse yet, the case from any standpoint is so lacking in merit that there is no prospect the review we are required to make of it can sustain reader interest.

The alternative writ issued in the court below on a petition which charged: (a) that relator was the Republican candidate for the office of county clerk of Laclede County in the 1966 general election and that respondent, the incumbent, was the Democratic candidate; (b) that a tally of the regular vote cast for the office on Election Day gave relator a majority of 126; (c) “that no additional votes have been certified to the county clerk respecting the aforesaid county clerk’s election, but respondent has indicated that he will nevertheless * * * refuse to issue to relator his certificate of election”; and (d), “that the issuance thereof by the respondent is a ministerial act and that respondent has no discretion therein but must accept the certified votes which show relator to be the winner by 126 votes.”

The return admitted the allegations summarized at (a) and (b) above, but denied those directly quoted at (c) and (d). It then alleged, by way of new matter, that in addition to the regular vote tallied on Election Day a total of 349 absentee and war ballots had been cast at said election, and that these, upon being counted and certified under circumstances hereafter to be detailed, gave respondent a majority of 300, thus electing him to the office by a final margin of 174; hence, that relator is not entitled to be certified as the winner.

By answer, relator attacked the validity of the absentee and war ballots and the legality of their count and certification, and to that two-pronged issue the whole thrust of the trial was directed. The evidence touching it was to this effect:

Respondent, as the incumbent county clerk, made an admittedly proper appointment of four judges, two Republicans and two Democrats whose qualifications are unquestioned, to canvass the absentee ballots. The judges met at the designated time and place for that purpose, subscribed their official oath, opened the ballots, examined the envelopes in which they had been received and the notarial certificates appended thereto without finding any irregularity or challenging a single vote, and then proceeded to count and tally the separate constitutional and judicial ballots, all in a regular manner. That done, they sorted the official ballots into three stacks for easy counting — straight Democratic, straight Republican, and split tickets — by which arrangement an unsettling fact was brought to light: the straight Democratic ballots outnumbered the straight Republican ballots by something like five to one, and the disproportion of split tickets was nearly as great. At that point the two Republican judges discovered that they could not in good conscience allow the vote to be counted. The issue would neither yield to debate nor admit of compromise. In defense of principle, then, and at some risk of martyrdom for it in the light of the various penalties prescribed for refusal to perform their duties, they “walked out.”

Unfortunately, the principle they were defending is not entirely clear. Fraud in the conduct of the election was neither alleged nor shown. The qualifications of the voters had been conceded by the counting of their constitutional and judicial ballots without protest. Bernhardt v. Long, 357 Mo. 427, 209 S.W.2d 112, 116. The dissident judges did not see fit to record any objection to any ballot on any ground, as required by Sec. 112.390, V. A.M.S. And whatever discussion they may have had with their colleagues on the subject, in the absence of both parties to this action, was properly excluded by the trial court as hearsay. In this state of the record natural curiosity as to what reason the defecting officials could possibly have advanced for their decision to disfranchise the entire absent-voting electorate has led us, beyond the call of duty, to relator’s offers of proof in this connection, and to his brief which makes generous use of that material, from which sources the following explanation can be pieced together.

Relator had filed his declaration of candidacy under his nickname, “Bill” Nichols. He wanted his name to appear on the ballots in that form, although no instruction to that effect was contained in the declaration and none was communicated to respondent at the time. Following publication of a sample ballot listing his candidacy under his Christian name of William R. Nichols, relator approached respondent with a request that his name be shown on the official ballots as Bill Nichols. Respondent consented, and the regular ballots were prepared in that form. But it seems the absentee ballots had already been printed and to some extent distributed at that time, and on them relator’s name appeared as William R. Nichols. The Republican judges “realized” that this had “probably” happened; and when the ballots were examined and the discrepancy confirmed, the iniquitous consequence of counting them came very clearly to their minds, because, as one of them offered to testify, “it was fairly obvious that the voters didn’t know how to vote for Bill Nichols since his name was not on there.” Relator was prepared to confirm the extent of the voters’ confusion, because “he had been told by numerous people that they do not recognize the name of William R. Nichols as Bill Nichols, and didn’t even know who they were voting for.”

Despite the fervor of these complaints, we are not persuaded that the general level of the electorate’s intelligence has so lamentably deteriorated that the average elector desiring to vote for a Republican named Bill Nichols for county clerk, and being offered a choice for that office between William R. Nichols on the Republican side of the ballot and Preston Schmoutey on the Democratic side, would be unequal to the task of making a decision. Even if the question were properly before us, we would be loath to confirm so dire a suspicion on the strength of one man’s opinion, notwithstanding the offer to bolster it by another’s secondhand report of rumors. Everything considered, then, we think relator’s contention that the ballots were invalid must be disallowed. That brings us to his other point, which arises on these facts:

Following the departure of the Republican judges, the two Democratic judges counted and tallied the ballots and certified the result to respondent as county clerk, who, on the basis of it, declared himself elected. The accuracy of the count is not questioned. Relator’s point is that the certification made by only two members of the canvassing board is a nullity, and that it was respondent’s ministerial duty to reject it and to declare the result of the election without reference to it. In other words, the refusal of the Republican judges to perform their sworn duty rendered the board impotent to canvass and certify the absentee vote, and left respondent no alternative but to declare relator elected on the basis of the otherwise incomplete returns that favored him.

The superlative simplicity of this method of subverting an election and putting forward the losing candidate as the winner will no doubt excite admiration in some quarters. But the courts have generally taken an illiberal attitude toward such schemes. They hold to the view that “[pjopular elections involve the exercise of one of the most cherished rights of the citizen in a free government,” and this right is not to be compromised by the “omissions and oversights” of the officials in charge, nor, we may confidently assume, by their deliberate malfeasance; hence the rule, that the failure of the election officials to do what the statute commands them to do “within a particular time or in a particular manner” will not frustrate the voter’s right to have his ballot counted unless “ ‘the statute expressly declares [the] particular act to be essential to the validity of the election, or that its omission shall render the election void.’ ” Sanders v. Lacks, 142 Mo. 255, 43 S.W. 653, 654-655. The statutes pertinent to the issue before us do not “ ‘expressly declare’ ” that a return signed and certified by all members of the canvassing board is “ ‘essential to the validity of the election, or that its omission shall render the election void.’ ” As a matter of fact, the cited case was one in which only four judges served at a precinct in lieu of six, the complement prescribed by the law of that day, and the court ruled that this defect, which necessarily prevented a full-board certification of the election results, “should not be held to deprive of their votes the citizens who voted at that precinct.” In O’Laughlin v. City of Kirkwood, 107 Mo.App. 302, 81 S.W. 512, 518, there was a “refusal of some of the judges and clerks to certify the pollbooks,” and the court held that such refusal “does not justify rejecting the vote of the precinct, since to do so would tend to defeat the will of the people, and deprive them of their suffrage right on account of the nonfeasance of election officers.” It is pointless to extend the discussion. Relator may examine for instruction, albeit with distaste, some further examples of the courts’ unsympathetic approach to his problem, to be found directly and by analogy in: Breuninger v. Hill, 277 Mo. 239, 210 S.W. 67; State ex rel. City of Memphis v. Hackman, 273 Mo. 670, 202 S.W. 7; State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153; State ex rel. Clark v. Smith, Mo., 15 S.W. 614; 29 C.J.S. Elections § 229, p. 642; State ex rel. Richardson v. Baldry, 331 Mo. 1006, 56 S.W.2d 67; State ex rel. and to Use of Averill v. Baird, 217 Mo.App. 362, 278 S.W. 416. In the last case, considering the evidence in this one, we may have dealt relator the most unkindest ■ cut of all by holding that he cannot prevail “without showing that a complete canvass of the votes legally cast had been made, and that as a result of that canvass his [election] was clearly shown.” That requirement is also made in election contest cases. Phelps v. Fenix, 345 Mo. 440, 134 S.W.2d 84, 88. Since relator could not have met it in an appropriate action, we agree with the learned trial judge that he ought not be allowed to evade it in this inappropriate one.

The judgment, quashing the alternative writ and denying a peremptory one, is affirmed.

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


author: EDWARD P. HILL, Judge.

text:
    Floyd Ira RIIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 28, 1967.
    Rehearing Denied Oct. 6, 1967.
    Carl J. Bensinger, Allan Weiss, Louisville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   EDWARD P. HILL, Judge.

This appeal is from a judgment convicting appellant Floyd Ira Riis of the crime of unlawfully transporting others beyond the bounds of this state denounced by KRS 435.150. His punishment was fixed at ten years in prison.

Appellant and William Allen Wright were jointly indicted and tried for transporting Carolyn Young and Larry Brandenburg beyond the state of Kentucky into the state of Indiana.

Appellant, a watch repairman, returned a watch belonging to William Allen Wright to the restaurant operated by Wright. As Wright was absent, the watch was delivered to Carolyn Young, a waitress at the restaurant. Sometime later, Wright learned of the delivery of his watch, but it could not be found.

Late on the night of November 20, 1964, appellant, Wright and Evelyn Gunther went to the apartment of Carolyn Young in search of the watch. Larry Brandenburg and Claudette Elder were there. A short time later, two young men returned to Carolyn’s apartment with whiskey they had gone for.

There was evidence that appellant struck Carolyn and Larry with his fists and that he also brandished a gun. Carolyn testified that appellant took her into the bathroom, pointed the gun at her head, and told her that if she didn’t return the watch he would “fix her face” so her boyfriend would never look at her again. Brandenburg testified appellant “pulled” the gun when the two young men returned with the whiskey.

After searching Carolyn’s apartment without success, appellant, Wright, Carolyn, Larry, and Evelyn Gunther went into Indiana to see Annabelle Turner, another waitress at Wright’s restaurant. Carolyn and Larry testified appellant and Wright demanded that they go to Indiana and that they feared violence at the hands of appellant if they refused to go.

On their return to Kentucky, the parties stopped at the restaurant where some of them drank coffee while others looked for the watch. A taxi was called and paid for by one of the defendants to return Carolyn and Larry to the apartment.

Wright was also convicted and given the same period of confinement in prison, but he has not appealed.

Appellant first argues that he was entitled to a separate trial and that the trial court erred in overruling his motion therefor under RCr 9.16. The record contains this statement by counsel for appellant (Wright was not represented by counsel) :

“I’ve made a motion for separate trials, on the basis that Mr. Wright will introduce testimony and witnesses and other evidence that I think will be highly prejudicial to the defense of the other defendant, Floyd Riis, and I, therefore, have made a motion for the judge to separate the trial of the two defendants. The judge has overruled me and I object and take exceptions to it.”

Neither appellant nor Wright testified. So we look to the record for any occurrence, conduct or statement by Wright that may have prejudiced appellant. We find nothing in the record indicating that Wright displayed any antagonism toward appellant. It is concluded the trial court properly overruled appellant’s motion for a separate trial.

It is next insisted by appellant that the indictment was insufficient. RCr 6.10 (2) provides that a criminal indictment shall be sufficient if it contains a plain, concise and definite statement of all the essential facts constituting the specific offense charged. The present indictment charged defendants with transporting “Larry Clifford Brandenburg and Carolyn Young at gun point beyond the bounds of this State.” It also contained the number of the statute (KRS 435.150). This was sufficient. Cf. Eisner v. Commonwealth, Ky., 375 S.W.2d 825 (1964), and Nicholas v. Thomas, Ky., 382 S.W.2d 871 (1964).

Appellant urges that the instructions were erroneous. They followed the language of the statute and fully submitted the issues to the jury.

Appellant’s final argument is that inasmuch as the “basic element” of the offense charged is transporting of another “beyond the bounds of this state,” the statute is invalid as an unlawful restraint upon interstate commerce in violation of Article 1, Section 8, Paragraph 3 of the Constitution of the United States.

The conduct of appellant, if the version of the Commonwealth’s witnesses is taken as true, had no relation to interstate commerce. Furthermore, the Constitution, supra, in no way relieves or obstructs the states in the exercise of their police powers. Neither does it shift from the states to the federal government any share of the original responsibilities of the states.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    Norman CARRUBA, Appellant, v. Myrtle SPENO et al., Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.
    As Modified on Denial of Rehearing Oct. 6, 1967.
    William A. Rice, Harlan, William S. Tribell, Middlesboro, Charles E. Duncan, Louisville, for appellant.
    Cawood Smith, Harlan, Farmer Helton, Robert R. R. Boone, Patterson & Berger, Pineville, for appellees.
   STEINFELD, Judge.

From a judgment of $22,000.00 in favor of Myrtle Speno, Norman Carruba appeals and from the adjudication that the judgment should be credited by $9,000.00 which was paid in settlement by Veto Speno, through his insurance carrier, Myrtle Speno cross-appeals. The judgment was to compensate for the injuries Mrs. Speno received in an automobile accident.

On the 21st day of January, 1962, Myrtle Speno was a passenger in a Falcon automobile owned and driven by her husband, Veto Speno. They were proceeding eastwardly on U. S. Highway 119 in Bell County at a point between Pineville and Harlan. At the same time a 1948 Chevrolet moving van owned by Norman Carruba was being driven by Isom Woods, an employee of Carruba, in the same direction and along that same highway. Carruba was riding in the truck. The highway was a two-lane paved asphalt road and in the direction in which they were going, for at least .2 of a mile, it was generally straight with the grade gradually upward.

The Falcon overtook the truck and attempted to pass it. When the Falcon reached the rear of the truck the automobile was traveling about 28 or 29 miles per hour and Mr. Speno gradually increased its speed to about 45 miles per hour. As the Falcon attempted to pass the truck, Woods speeded up from approximately 28 or 29 miles per hour to 50 miles per hour. (There is some conflict in the testimony regarding the speed.) The efforts to pass the truck continued for about .2 of a mile and the Falcon managed to get about even with the cab of the truck so that Mrs. Speno could look directly to her right into the window of the left cab door of the truck. There is also conflicting testimony as to whether Mr. Speno sounded his horn on one or more occasions.

While Mr. Speno was trying to pass the truck Mrs. Speno saw an O.ldsmobile automobile approaching in the opposite direction when it was about 1,500 feet ahead. Mr. Speno made no effort to stop or drop back for the reason, he said, that he thought he could get around the truck. Mrs. Speno says that the truck swerved and there was a collision between it and the Falcon (this is denied by Carruba) and almost simultaneously the Falcon collided with the Oldsmobile. She was severely and permanently injured to the extent that at the time of the trial she was confined to a wheel chair and the testimony showed that she would never be able to walk.

Mrs. Speno brought suit against her husband and Carruba. She alleged that there, was separate and concurrent negligence on the part of the two drivers which resulted in the collision and the severe injuries which she sustained. She claimed $5,000.00 for medical expenses incurred and to be incurred; $10,000.00 to reimburse her for nursing and assistance about her home and $35,000.00 for pain, suffering and the permanent loss of her power to earn money.

Carruba answered, and after denying any negligence on his part or the part of his driver, claimed that the accident was the proximate result of the sole carelessness and negligence of Mr. Speno.

Mr. Speno did not answer; however, Mrs. Speno moved that her action against Mr. Speno be dismissed because a settlement had been reached on her claim against him. She reserved her rights against Car-ruba. It was shown later that Mrs. Speno had received $9,000.00 from the insurance carrier of Mr. Speno in full settlement of her claim against her husband. The motion to dismiss as to Mr. Speno was sustained on February 1, 1963.

On May 10, 1963, Carruba filed a third-party complaint against Mr. Speno in which he claimed that the injuries which Mrs. Speno sustained were the proximate result of the carelessness and negligence of Mr. Speno. He demanded that if Mrs. Speno recovered against him that he “ * * * recover of * * * Veto Speno, all, one-half or some other proportionate part of such damages as may be awarded * * * ” Mrs. Speno. The court authorized that the third-party complaint be filed. CR 14.01. After appropriate pleadings raising all issues discussed in this opinion, including the claim that in the event Mrs. Speno was awarded judgment against Carruba he was entitled to have the judgment credited with and reduced to the extent of the $9,000.00 paid Mrs. Speno, the case proceeded to trial.

The jury awarded Mrs. Speno $22,000.00 “ * * * against Norman Carruba, truck driver.” The court entered judgment for Mrs. Speno against Carruba for the $22,000.-00; credited the award by $9,000.00 and authorized Mrs. Speno to have execution for the balance, $13,000.00. The court dismissed the third-party claim of Carruba against Mr. Speno. Motions made by Carruba for a new trial and for a judgment notwithstanding the verdict were overruled. Car-ruba appealed from the judgment against him and Mrs. Speno filed a cross appeal predicated upon the claim that $9,000.00 should not have been credited on the judgment.

Carruba relies upon United Coach Corporation v. Finley, 243 Ky. 658, 49 S.W.2d 544; Pedigo v. Osborne, 279 Ky. 85, 129 S.W.2d 996 and Ware v. Saufley, 194 Ky. 53, 237 S.W. 1060, 24 A.L.R. 500, to support his claim that the sole cause of the collision was the failure of Mr. Speno to drop back when it was apparent that the driver of the truck would not be overtaken and that Mr. Speno could not pass it in safety. Our attention is directed to 8 Am.Jur.2d page 338 which announces the rule that “Upon the failure or refusal of the overtaken motorist to give way upon signal from the overtaking motorist of his desire to pass, the latter is not justified in persisting in his attempt to pass * * *

The United Coach case stands for the proposition that the driver of the car attempting to pass is negligent if he continues his efforts to pass when it would become “ * * * reasonably apparent to a driver of ordinary prudence in his situation that the approaching car is so near, or is traveling at such a high rate of speed as to make it dangerous to continue the attempt, * * * Finding that situation it was said that “ * * * he should slacken his speed and use ordinary care to get over on the right-hand side of the road and fall in behind the car in front.” The Osborne case was an action between the operators of cars going in the opposite direction and was reversed because of erroneous and prejudicial instructions. The opinion stated that Osborne was guilty of negligence in attempting to pass the automobile going in the same direction in which he was traveling; nevertheless, it was the duty of the approaching automobile to use ordinary care to discover Osborne’s peril and to use the means at his hands to avoid the collision. Ware v. Saufley, supra, was an action in which it was alleged that the defendant, Ware, drove his automobile against the wheels of a buggy in which Saufley was riding. Plaintiff and defendant were both going in the same direction. The issue was whether Ware exercised reasonable care in attempting to pass the buggy. The cases cited by Carruba did not involve a claim by a passenger and are not authority in support of the contention that Mr. Speno was the sole cause of the collision.

Under instructions, not questioned on this appeal, the jury considered the sharp issue of whether the driver of the truck failed to perform the duties imposed on him and thereby was negligent. On the third-party claim there was submitted the issue of the negligence of Mr. Speno. (The appellant did not suggest upon the trial, nor has he argued here, that Speno violated the passing statute, KRS 189.340(3), and therefore should have been held negligent as a matter of law.) The jury found the truck driver negligent and Mr. Speno free of negligence. These were questions for the jury. Lever Bros. Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002; Acres v. Hall’s Adm’r, Ky., 253 S.W.2d 373; Eichstadt v. Underwood, Ky., 337 S.W.2d 684. The contention that Mr. Speno was the sole cause of the mishap is without merit.

Mrs. Speno claimed that Carruba’s driver violated the duties required of him relative to the Falcon in its efforts to overtake him. Specifically, she claimed that there was failure to keep the truck under reasonable control as required by KRS 189.290; that he failed to give way to the Falcon which was a duty imposed on him by KRS 189.300 (2) and that he completely ignored the requirement set forth in KRS 189.350(2). These statutes generally imposed upon the driver being passed the duty to exercise care for the passing vehicle and to assist it in getting by without mishap.

Carruba contends that his driver was not guilty of violating any statute or duty and that the acts of Mr. Speno were the proximate cause of the collision; that even if his driver was also at fault his blame was not a proximate cause. We agree with his statement that “proximate cause is an essential element.” 7 Am.Jur.2d 916, section 369. There was conflicting testimony as to whether the driver of the truck knew or should have known of the efforts of the Falcon to pass and as to whether the truck driver failed to perform the duties imposed on him by the statutes we have referred to. The issue of “proximate cause”, where the facts are in dispute, is for the jury. Fullenwider et al v. Brawner, 224 Ky. 274, 6 S.W.2d 264; State Highway Com. v. Hall, 274 Ky. 586, 119 S.W.2d 666.

The testimony of Mrs. Speno here-inbefore summarized concerning the efforts to pass the truck was evidence of probative value which the jury could consider on the question of proximate cause. The physical facts revealed that if the driver of the truck had permitted the Falcon to pass it, there was ample room for it to have done so in safety. If appellees’ proof is to be accepted the acts of the truck driver were a proximate cause of the collision and the jury so found. Argazzi v. Reynolds, 106 Conn. 281, 137 A. 857. In Christensen v. Sheldon, 245 Iowa 674, 63 N.W.2d 892, 48 A.L.R.2d 522 where the facts are quite similar to those in this case, the court held that the manner of driving the truck was a proximate cause of the collision with the oncoming car. We agree. The driver of the vehicle being passed may not ignore the passing car. Ironside v. Ironside, 188 Okl. 267, 108 P.2d 157, 134 A.L.R. 621.

Carruba contends that there was insufficient proof of probative value to support the jury’s verdict and he asserts that the burden was on Mrs. Speno to prove that his driver was negligent. There was a sharp issue as to whether or not there was a collision between the truck and the Falcon. In this case we consider the question of whether such collision occurred to be relatively unimportant. The alleged negligence was predicated also on the failure of the truck driver to permit the Falcon to pass and to assist it in its efforts to do so. The truck driver admitted that he did not see the approaching Oldsmobile which may have indicated to the jury that he was failing to drive carefully. KRS 189.290(1). There was sufficient evidence before the jury on which, if it so determined, it could find Carruba’s driver guilty of negligence. Rowe v. Gibson, Ky., 309 S.W.2d 173; Reader v. Ottis, 147 Minn. 335, 180 N.W. 117, 16 A.L.R. 463; Warlich v. Miller (CA 3 Pa) 141 F.2d 168; Sypherd v. Haeckl’s Express, Inc. (CA 6 Ohio) 341 F.2d 65; Delph v. Ammons, 239 Md. 662, 212 A.2d 504. The cases cited by appellant do not hold to the contrary.

The jury found that Mr. Speno was guilty of no negligence and that Carruba alone was negligent. Applying the test set out in Lever Bros. Co. v. Stapleton, supra, we find that there was sufficient evidence of probative value to support the verdict.

Appellant asserts that the instruction in regard to medical expenses was erroneous in that the jury was authorized to make an award in excess of the amount which was proved. The instruction complained of informed the jury that if it found for the plaintiff it could award “ * * * medical bills expended directly resulting from the accident not to exceed the sum of $5,000.00.” Appellant objected to that instruction because the proof showed that the medical bills already incurred were less than $3,000.-00.

He further objected on the ground that the instruction did not require the jury to “ * * * set out in their verdict the amount, if any, they award the plaintiff for each particular item of damages * Appellant complains that this instruction was so prejudicial that the case should be reversed. He relies on Adams Construction Co. v. Bentley, Ky., 335 S.W. 2d 912; Moorman Mfg. Co. v. Harris, 280 Ky. 845, 134 S.W.2d 936 and Kentucky & Indiana Terminal Railroad Co. v. Mann, Ky., 312 S.W.2d 451. Appellee counters by arguing that the complaint demanded $35,000.00 for loss of appellee’s power to earn money, and for pain and suffering and $15,000.00 for medical and hospital bills and for nursing services incurred and to be incurred. The verdict was as follows: “We the jury do agree to give the plaintiff the sum of $22,000.00 judgment against Norman Carruba, truck driver.”

There was no separation of the award for pain and suffering, loss of power to earn money and medical expenses.

The Adams case announced the principle that “ * * * if the amount of recovery be found as a mattter of law clearly to exceed the damages authorized under the evidence the verdict must, on proper motion, be set aside.” Moorman holds that “ * * * instructions should not authorize recovery on any item in excess of the damages proven.” The judgment in the Mann case was reversed because it was found that it was so large as to indicate that an error in the instructions was prejudicial. For the reasons stated herein we find that the law announced in these cases does not authorize a reversal in the case now before us.

The instruction complained of was more favorable to appellant than it should have been inasmuch as it should have stated medical bills expended and medical expenses which might reasonably be expended in the future by Myrtle Speno who was made an invalid by the accident and will be confined to a wheel chair throughout her lifetime. The verdict did not exceed the pleadings and the evidence. Lee v. Stamper, Ky., 300 S.W.2d 251. The jury having found Carruba negligent, and in the light of the injuries sustained by Mrs. Speno, the verdict appears to be conservative. We reiterate our statement made in Kentucky & Indiana Railroad Co. v. Mann, supra, wherein we said that “ * * * the better practice in cases like this, where there are several separate major items of damage, is to require an itemized verdict”; however, we have carefully considered this contention and have concluded that reversible error was not committed. 22 Am. Jur.2d 453, section 348; Scott v. San Ber-nardino Valley Traction Co., 152 Cal. 604, 93 P. 677.

Myrtle Speno cross-appeals on the claim that the lower court was in error in crediting the verdict against Carruba by the $9,000.00 which was paid by the insurance carrier of Mr. Speno. Carruba cites Mc-Callum v. Harris, Ky., 379 S.W.2d 438; Standard Sanitary Mfg. Co. v. Brian’s Adm’r., 224 Ky. 419, 6 S.W.2d 491 as authority on his assertion that he is entitled to the credit.

In Carruba’s third-party complaint against Mr. Speno he demanded contribution and indemnity. CR 14.01. Mr. Speno answered denying his negligence and any further liability and pleading alternately that if Carruba was entitled to contribution or indemnity Mr. Speno should have credit for the $9,000.00 which was paid.

The court submitted to the jury the issue of negligence, if any, on the part of Mr. Speno and directed the jury to find against him if they found that he failed to perform any of the duties imposed upon him under the instructions. The jury did not find negligence on the part of Mr. Speno. Carruba is not entitled to credit. We find that McCallum v. Harris, supra, and Standard Sanitary Mfg. Co. v. Brian’s Adm’r., supra, relied upon by Carruba are not in point. Mr. Speno was held not to be a “wrongdoer.” The applicable law is set forth in Deatley’s Adm’r v. Phillips, Ky., 243 S.W.2d 918, wherein we said:

“Appellant cites the Wisconsin case, Papenfus v. Shell Oil Co., 254 Wis. 233, 35 N.W.2d 920, wherein it was found that a settlement was necessarily considered a gratuity, because the jury found the party making the payment not to be a joint tort-feasor. It is similarly true in this case. By its verdict against defendant the jury in fact found the C. & O. not to be a joint tort-feasor. Consequently, the court erred in crediting the judgment with the voluntary and gratuitous amount paid by the C. & O. Railway Company. To that extent the judgment is reversed.”

In Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137, we held with respect to the cross claim that the issues of contribution and indemnity “ * * * were effectively eliminated by the jury verdict which exonerated that co-defendant.” Speno having been exonerated by the jury was not a tort-feasor, therefore, the payment of $9,000.00 must be treated as voluntary, for which Carruba is entitled to no credit.

The judgment is affirmed on the appeal and is reversed on the cross-appeal with directions that it should not be credited with $9,000.00.

All concur.


text:
    William L. OLIVER, Appellant, v. Maggie WYATT, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1967.
    Rehearing Denied Oct. 6, 1967.

      Boyd F. Taylor, Hamm, Taylor & Milby, London, for appellant.
    Edward Jackson, Beattyville, Paul E. Hieronymus, McKee, for appellee.
   STEINFELD, Judge.

This is an action to quiet title to land and for specific performance. It involves a controversy over the validity of a writing entitled “OPTION”.

Maggie Wyatt, whom we will refer to as Wyatt, was the owner of a 51.09 acre tract of land in Laurel County. William L. Oliver, whom we will refer to as Oliver, is a dealer in real estate. After some preliminary negotiations Oliver prepared a writing which he presented to Wyatt. Among other things, it provided that “ * * * in consideration of Five Hundred and no/100 Dollars ($500.00) (hereinafter referred to as the ‘Downpayment’) * * * ” Wyatt granted “ * * * to William L. Oliver, as agent for his client, (hereinafter called ‘Buyer’) the exclusive option to purchase at the price and on the terms and conditions * * *” the 51.09 acres of land. There were many conditions and provisions some of which we will discuss later in this opinion. Wyatt signed this writing on the 17th day of March, 1965. At the end of this “OPTION” below Wyatt’s signature was the following:

“EXERCISE OF OPTION
The undersigned, Buyer, hereby exercises the foregoing Option and agrees to purchase the above described Property at the price and on the terms and conditions , above set forth, this day of , 1965.”

On August 5, 1965, Oliver filled in that date, signed it “William L. Oliver, Buyer” and sent an executed copy to Wyatt.

She refused to make the conveyance and ori the 11th day of February, 1966, she filed a suit in the Laurel Circuit Court in which she alleged that she was the owner of the 51.09 acres of land and that Oliver, by reason of the writing entitled “OPTION” was asserting a claim upon the land. She demanded that the title be quieted and that Oliver be required to release his claim. After alleging that he was ready, willing and able to pay for the property he counterclaimed and demanded that Wyatt be required to carry out the provisions of the “OPTION” and convey the land to him. Wyatt replied that Oliver had represented to her that he was agent for the “Standard Oil Company” when he was not agent for anyone and that Oliver was guilty of fraud and misrepresentation. Further, she claimed that the writing was void because it failed to name the other party and that Oliver “was agent for no client.” She asserted other defenses to the counterclaim.

The parties, through their attorneys, agreed that two of the issues could be tried without the introduction of any evidence. These were: Whether there was a valid option to purchase the real estate and whether the acceptance was valid and resulted in a binding contract of sale. The lower court, after making findings of fact and stating conclusions of law, adjudged that the writing was “ * * * void and of no legal effect and (did) not create any binding contract * * * It further adjudged that Wyatt’s title to the land is quiet and that she was not required to convey the land to Oliver.

A controversy rages as to whether or not the writing was a continuing offer to sell real property or an option. If it was a continuing offer to sell it was accepted before it was withdrawn. This created a contract. Walton’s Ex’r v. Franks, et al., 191 Ky. 32, 228 S.W. 1025; Klatch v. Simpson, 237 Ky. 84, 34 S.W.2d 951; Combs, et al. v. Turner, et al., 304 Ky. 179, 200 S.W.2d 288; Palfreeman et al. v. Broderick, et al., 306 Ky. 538, 208 S.W.2d 736; Restatement of the Law, Contracts, section 34.

It is apparent that the acceptance occurred before an unreasonable time had passed. The writing showed that “Buyer” proposed to use the property for retail business purposes and would find it essential to have surveys made, acquire adjacent property, arrange for curb cuts and permits for sanitary facilities. Obviously time was required to complete all such arrangements. We are not prepared to say that less than five months is an unreasonable time within which to accept a proposal under these circumstances, particularly since Wyatt made no effort to withdraw it.

Wyatt contends that the agreement is vague, indefinite and uncertain because it contains no set time for performance. The law is clear that when an offer to sell fails to fix a time for acceptance the offer continues for a reasonable time. 17 Am.Jur.2d 373, Contracts, section 35. For the reasons above stated we find no merit whatsoever in this contention.

At the time Wyatt signed the contract in controversy Oliver paid to her $500.00 to be credited on the purchase price if the purchase was completed, and to be retained by her under all other circumstances except that if, after the exercise of the “ * * * Option, the resulting contract of purchase is terminated for any reason other than default on the part of Buyer, said Downpayment shall be forthwith returned to Buyer.” Such provisions are frequently found in options granted for the purchase of real estate. It is our opinion that Wyatt intended to grant an option to purchase her land. Cawthon v. McAlister, 217 Ky. 551, 290 S.W. 316. For the reasons stated herein it makes no difference whether the writing was an offer to sell or an option.

When Oliver delivered to Wyatt the writing entitled “EXERCISE OF OPTION” a contract was entered into, unless there is merit in the other contentions made in these proceedings.

The issue which we will discuss next is “ * * * that the Buyer or grantee being designated only as ‘William L. Oliver, as agent for his client’, does not name a legal grantee * * * ” and the collateral issue of whether the acceptance by “William L. Oliver, Buyer” was an acceptance.

In R. C. Curtis and W. P. Wilcox v. Spadie, Ky., 399 S.W.2d 731 we held that the fact that a real estate transaction form indicated that an agent was executing it was “ * * * of no consequence when viewed in conjunction with the instrument as a whole.” We said that where the alleged agent was in reality the Buyer he could not recover a commission. The “OPTION” involved in the present controversy contained the following language: “Upon transfer of title Seller will pay real estate commission to NO ONE, IN NO AMOUNT and in no event shall Buyer be liable therefor.” It is our opinion that the principle announced in R. C. Curtis and W. P. Wilcox v. Spadie, supra, applies here. An examination of the writing indicates that it was of no importance to Wyatt to learn whom Oliver was representing. She did not require that the name of the “Buyer” be included in the writing. We hold that the failure to name the “Buyer” was immaterial, and find no justification in Wyatt’s complaint that Oliver had no right to accept the proposal as the principal. The trial court was in error in holding that the “OPTION” was void because it did not name a legal grantee. Bell Grocery Co. v. Letts-Fletcher Co., 211 Ky. 147, 277 S.W. 295.

In Bulova Watch Company v. Roberts Jewelers of Rock Hill, Inc., 240 S.C. 280, 125 S.E.2d 643, it was held that “One who undertakes to order and receive goods for a non-existent principal represents no one, and binds himself to pay the purchase price. 2 Am.Jur., Agency, section 316; Medlin v. Ebenezer Methodist Church, 132 S.C. 498, 129 S.E. 830, Lagrone v. Timmerman, 46 S.C.’ 372,24 S.E. 290.”

If the agent is merely purporting to be acting for a principal but is in fact acting for himself, he will be personally liable on the contract. Hagan v. Asa G. Candler, Inc., 59 Ga.App. 587, 1 S.E.2d 693, aff’d 189 Ga. 250, 5 S.E.2d 539, 126 A.L.R. 108. After acceptance by Oliver, he was disclosed as the principal; therefore, he was liable to Wyatt — he was the Buyer and she became obligated to him as if he was originally named in the “OPTION”. Bell Grocery Co. v. Letts-Fletcher Co., supra.

Wyatt' contends that if by the acceptance, a contract between Wyatt and Oliver existed, it was void for lack of mutuality. Wyatt argues it provided that the “Buyer” did not have to perform if he could not obtain clear title to other land which he might option in the future and if any one of several other contingencies arose which in the judgment of the “Buyer” might tend to affect the use of the property he did not have to take it. The “OPTION” provided that “It is understood that Buyer proposes to improve and use the Property for retail business purpose and Seller agrees that any restrictions of record, zoning ordinances, governmental regulations, or inability to secure permits for sanitary facilitones or curb cuts, which in the judgment of Buyer prohibit, limit, or restrict use of the Property for such retail business purposes shall for the purpose of this contract be construed to render Seller’s title not good and marketable.” The court below concluded that there was no mutuality of obligation and that a binding contract did not exist for this reason. Each of the elements announced pertains to records in governmental offices or the exercise of the functions of government. These were matters over which “Buyer” had no control, and the judgment which he was authorized to make was not discretionary, but on the contrary, a determination of whether such matters so restricted the use of the property that a retail business could not be operated thereon. We hold that such a determination does not eliminate mutuality. Mon-tanus v. Buschmeyer, 158 Ky. 53, 164 S.W. 802; Southeastern Land Company v. Clem, 239 Ky. 417, 39 S.W.2d 674; David Roth’s Sons, Inc. v. Wright and Taylor, Inc., Ky., 343 S.W.2d 389.

Marketability of title is a legal matter the test of which depends upon the certainty or uncertainty of the title. Jackson v. Lamb’s Ex’r, 299 Ky. 505, 186 S.W.2d 9. The right to decline to take if the title was not marketable did not affect mutuality of the contract.

The judgment is reversed for proceedings consistent with the foregoing opinion.

All concur.