author: SAMUEL A. DEW, Special Commissioner.

text:
    Geraldine HARRIS, (Plaintiff) Respondent, v. MOUND CITY YELLOW CAB COMPANY, a Corporation, and Albert Simms, (Defendants) Appellants.
    Nos. 31263, 31264.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.
    Motions to Set Aside Opinion, for Rehearing or to Transfer to Supreme Court Denied May 14, 1963.

      Robert W. Henry, Clayton, for Mound City Yellow Cab Co., Louis A. Robertson, Ernest E. Baker, and Alexander & Robertson, St. Louis, for Albert Simms.
    Morris A. Shenker and Frank B. Green, St. Louis, for respondent.
   SAMUEL A. DEW, Special Commissioner.

Plaintiff, a married woman, 33 years of age, was injured in a collision between a taxicab in which she and her mother were riding as passengers, and another automobile. The accident occurred December 29, 1960, at the intersection of Union Boulevard and Washington Terrace in St. Louis, Missouri. The verdict of the jury was in plaintiff’s favor against both defendants in the sum of $15,000. Both defendants separately appealed, and the appeals were argued, submitted and considered together.

The defendant-appellant Mound City Yellow Cab Company is hereinafter referred to as the “Cab Company”, and defendant-appellant Albert Simms will be referred to as “defendant Simms”.

Some of the facts are either admitted or, for the purposes of these appeals, stand un-controverted. The plaintiff and her mother had boarded the Yellow Cab between 3:30 and 4:00 p. m. on the above date, plaintiff taking her seat in the rear and right side and her mother seated on the left and behind the driver. The cab was being operated by one William Arnall. As a part of the course of the cab it was being driven westward on Washington Avenue. When the cab reached Union Boulevard, a north and south-bound thoroughfare, the driver of the cab proceeded westward into and headed somewhat northwesterly across Union Boulevard, intending to enter Washington Terrace, which proceeds westwardly through a parked area, the entrance to which is slightly north of Washington Avenue east of the boulevard. Union Boulevard is 76 feet wide. There are no stop lights at the intersection of Washington Avenue and Union Boulevard, but there is a stop sign at the northeast corner thereof for use by traffic entering that boulevard from the east. The next street north of Washington Avenue to cross Union Boulevard is Delmar Street, 338 feet distant, where stop lights control the traffic at that intersection.

At Delmar and for a half block south on Union Boulevard, there are three lanes provided for southbound traffic, each about 10 feet wide. About the middle of that block the southbound lane next to the center line of the boulevard widens so as to provide two lanes, one for a continued course south across Washington Terrace, and one on the left for cars to be turned left into Washington Avenue and eastward. Thus, at the intersection in question, there are four southbound lanes. The southbound lane next to the center line of the boulevard is referred to as the “left turn lane” and the lane next to the west curb on Union Boulevard is referred to as the “curb lane”. The streets were dry and level. There was no traffic control for northbound traffic approaching on Union Boulevard. The plaintiff and the defendant Cab Company contend that the collision took place in the “curb lane”. Appellant Simms testified that it took place in the second lane from the west curb of Union Boulevard. The impact shoved the cab into the entrance to Washington Terrace and against a brick pillar on the north side.

In addition to the substance of the foregoing facts, plaintiff’s petition alleged that the Yellow Cab was owned and operated by the Mound City Yellow Cab Company, a corporation, as a common carrier; that the cab was within that company’s exclusive management, possession and control by its agent and in the course of his employment at the time and place in question; that the violent collision was “the direct and proximate result of the negligence and carelessness of said Mound City Yellow Cab Company, a corporation, and Albert Simms.” On the part of defendant Simms the petition thereupon alleged numerous specific acts of negligence, to-wit: that he operated his car at a high and dangerous rate of speed under the conditions so as to endanger life and limbs of persons on or apt to be on said street; that he negligently failed to maintain a lookout ahead and laterally for persons and vehicles on said street, approaching or in the path of his vehicle, including the cab in which plaintiff was seated ; that he carelessly and negligently operated his car in close and dangerous proximity to the cab in which plaintiff was riding when imminent danger existed; that he negligently failed to sound a signal or warning of his approach or proximity; failed to exercise the highest degree of care to discover the cab in time to stop, slacken the speed of, turn or to swerve his car so as to avoid the collision; that he negligently failed to have his car under such control as to have stopped upon the first approach of danger; that he saw, or in the0exercise of the highest degree of care could have seen, the taxicab and the plaintiff in a position of imminent peril of collision with his car, and in time to have avoided the collision by stopping, slackening his speed, swerving his car, or sounding a warning, and that as a result of such negligence of the defendants, plaintiff sustained the injuries described.

By its separate answer defendant Cab. Company admitted that one of its taxicabs was involved in a collision at the time and. place alleged in plaintiff’s petition, but generally denied all of the allegations as to. her injuries and as to the negligence pleaded. In the course of the trial, however, appellant Cab Company admitted its ownership, of the taxicab in question, and that the-company operated as a common carrier. By-his separate answer defendant Simms denied generally the controversial allegations; of the petition.

The driver of the cab, Arnall, was a witness for the plaintiff. He testified that he-brought his car to a stop, facing west at the-stop sign at the northeast corner of Washington Avenue and Union Boulevard; that no traffic was approaching from the southl- and he started to cross Union Boulevard westward toward the entrance across the-street to Washington Terrace; that a car-on the “left turn” lane in Union Boulevard', headed south, at or near the intersection, stopped and its driver motioned witness to-proceed across in front of him; that witness ■ proceeded to the next southbound lane-where a driver of a car there signalled him; to proceed across; that he approached the second southbound lane where he was again motioned across by a driver of a car there; that he then “inched” along into the “curb lane” or the lane next to the west boundary of Union Boulevard at about five miles per hour. There he looked to the north and saw no approaching traffic and he then proceeded westwardly toward the entrance to Washington Terrace, and when he reached half way across the “curb lane” he looked again and saw a car about 60 feet distant coming toward him in that lane at about 45 miles per hour. The witness said he then applied his accelerator to five or ten miles per hour to avoid the collision and went about three feet when the Simms car ran into the rear side of the cab. He said Simms sounded no horn, but slackened his speed to about 25 miles per hour. The witness said he could have stopped the cab under the conditions within three feet with safety to himself and passengers. He said -the impact forced the cab into the entrance to Washington Terrace and up against a "brick “wall” there. Witness was knocked down and under his steering wheel. After the collision he got some one to call an ambulance. Shortly thereafter the plaintiff was taken to the hospital.

A patrolman on the scene testified to the ■conditions and situation of the vehicles after the collision. He described the cab as yellow and as having the words “Yellow Cab Company” printed on the side, and its -number “230”; also a Board of Public Service “No. 130”; that he ascertained that the license number had been issued to William Arnall. The police photo in evidence also showed part of such printed sign on the side •of the cab.

In her own behalf plaintiff testified that the first she knew of the impending collision was when the cab had reached the west side of Union Boulevard, when she ■glanced to the right and saw another car “on top of me”; that she heard no warning at all; that the force of the impact was terrific; that her leg “snapped” and she -was jostled all over the cab, sustaining bruises on her right arm, and that her mother was bruised and her knee was cut. Plaintiff said she could see that her own right shin bone was broken and protruding, but not through the skin; that her foot was dangling from her ankle; and she was in extreme pain and agony. According to her testimony she was x-rayed at the hospital and at 7:00 p. m. her leg was first set, which took about one and one-half hours. A general anaesthetic could not be given her because she had so recently eaten her lunch. A local anaesthetic was administered. On January 4, there was another setting of the broken leg. In surgery two stainless steel screws were installed across the bone to hold the fragments together, and stitches were taken in the five-inch incision made. Her leg was then placed in a temporary cast. The swelling of her leg within the cast caused her great pain. She also developed a pain in her upper right side, which caused her to suffer severely when she breathed. The pain in her right side extended from her waistline to her right shoulder and chest. It was impossible for her to get comfortable either sitting up or lying down. She was given many shots of medication and drugs to relieve her constant suffering, and blood tests were made daily and sometimes oftener. She remained in the hospital about two months, most of which time she spent lying on her back. Pains developed in her lung and a full time practical nurse was engaged. At other times three nurses were in attendance.

Plaintiff further testified that after leaving the hospital she was not allowed to put any weight on her injured leg and in April a new cast was supplied her; that several doctors have attended her since, either at her home in Pittsburgh or at the home of her mother in St. Louis; that at St. Louis a new cast was furnished her reaching to her waist and with a heel, permitting her to walk with it. However, she said it was so heavy it had to be replaced with another in May. This, too, became too heavy, and a cast reaching below the knee was adopted. Meanwhile the skin under the cast was peeling off and caused bleeding and tenderness. She then used a crutch for a while, then a cane and not until the fall of 1961 was she able to do without them. She continues to suffer pain, her knee is stiff and her ankle is smaller and she walks with a limp. After any exertion or when there is a change of weather, pains in her back and chest reoccur.

Dr. Milton Lenobel, a surgeon specializing in treatment and surgery of the mus-culo-skeleton system, testified for the plaintiff. According to his testimony he attended plaintiff after her accident. He said he found she “had a fracture involving the junction of the middle and lower third of the right tibia or shin bone and also a fracture involving the upper end of the fibula on the right side below the knee joint.” He then performed a “closed reduction” operation on respondent’s leg, inserting two stainless steel screws in the bone to hold the fragments together, and removed a loose fragment of the bone; placed a cast on the operated leg; later removed the sutures of the incision through an opening in the cast; later changed casts and finally advised use of crutches and cane. He described the plaintiff’s limp and the development of a one-half inch of atrophy in the injured leg, due to long disuse. He said also plaintiff had a limitation in the ability to twist the right foot and ankle up and move the great toe of that foot. He said that in his opinion the conditions described were the result of the collision.

As to the question of permanency of plaintiff’s condition, Dr. Lenobel testified that he could not tell how many of her present limitations would remain permanent; that he felt the atrophy of the right calf might improve with use, but for how long he could not say; that as to plaintiff’s claim of pain he said her fractures were in an area of the bone that is slow to heal; that the tissue in the area was scarred due to both surgery and fracture; that there had been a destruction of tendons, ligaments and blood vessels in the area, to what degree of permanency he could not tell, but he said he felt that “this will not ever be a totally normal right leg”. He stated that the screws should be left in the leg rather than to undergo another operation to remove them. On cross-examination he said plaintiff’s gait, developed from such long use of the casts, might become permanent. When asked if he discovered a blood clot in plaintiff’s injured leg, he said he could not see one with the cast on and would not have removed the cast to look for one, but he did feel that a blood clot had formed somewhere and caused an embolus of the lung.

Dr. Arthur E. Strauss, specialist in internal medicine and cardiology, testified in plaintiff’s behalf. He said he was called to see plaintiff about two weeks after her accident to examine her for pains developed in her right lung and accompanying fever; that he found a pulmonary infarction due to embolism, which is a shutting off of the blood supply to an area due to a blood clot. He said he found a preliminary infarction or embolism which he believed came from a blood clot in plaintiff’s injured leg; that she had given birth to a dead baby about six weeks before her accident and a consultation with a gynecologist was necessary to determine which might have caused the blood clot. He said x-rays taken January 11, 1962, showed scars of the lung tissue but which he said should not cause plaintiff further trouble.

Copious hospital records introduced in plaintiff’s case noted plaintiff’s pains and suffering, her moans and entreaties for pain-killing drugs for relief of pain and the extensive medication in her case. Mortality tables in evidence showed hef life expectancy as 37.4 years.

In behalf of the Cab Company one Gary Cooper testified that at the time of the collision he was driving a car south on Union Boulevard in the first lane next to the center of that thoroughfare and saw the cab when it stopped on Washington Avenue upon reaching Union Boulevard, and when it pulled out further and into the intersection; that the traffic was heavy, but not fast; that a couple of southbound cars stopped and let him by; that there was some traffic from the south; that the car in front of the witness stopped to let the cab go by; that the cab driver was looking both ways; that at that time there was no traffic in the “curb lane” on the west side of Union Boulevard. He said that when the cab was almost across the intersection he saw a big black Pontiac in the curb lane of Union Boulevard coming alongside of him and traveling about 35 miles per hour; that the driver of that car did not apply his brakes until he was “almost on the cab”. Witness described the impact and the final location of the vehicles after the collision. He said he stopped, got out of his car, went to the wrecked cars where he saw plaintiff, whose leg was over the back of the front seat of the cab and appeared twisted, and that plaintiff seemed badly hurt. He then called the police.

Charles Morton was produced as a wit-nes for the Cab Company. He testified that at the time of the collision he was driving a car south on Union Boulevard in the lane next to the “curb lane”. According to his testimony he could see from Delmar the cab stop at Washington Avenue and start “inching” its way across the intersection ; that he saw cars stop at the crossing to let the cab by; that after the cab had crossed the lane in which the witness was driving, the collision occurred in the “curb lane”; that he had noticed a car in that lane about two car lengths behind him; one car was in front of the witness. The car in the “curb lane” did not decrease its speed and was going about 35 miles per hour; that at the time of the collision the front end of the cab had almost reached the west curb of Union Boulevard. He described the impact of the two vehicles and their movements thereafter and the appearance of the cab and the plaintiff.

Counsel for defendant Cab Company read parts of the deposition of defendant Simms. Simms therein had testified that he left Delmar, traveling about 28 miles per hour, and was 10 or 15 feet behind another southbound car; that he in fact was in the second lane from the west curb of Union Boulevard, and that the collision took place in that lane; that when he first saw the cab he was “right at it”, and traveled about 8 feet before the impact with the cab, which had “speeded up”; that he could have stopped his car in 8 or 10 feet.

In his own behalf defendant Simms testified at the trial that as he approached the intersection of Union Boulevard and Washington Terrace, at the time of the accident, he was about 15 to 18 feet behind another car and going about 25 to 28 miles per hour; that he was traveling in the middle or second lane from the west curb of Union Boulevard; that some of the cars ahead of him went on across the intersection; that the car to his left had stopped; that when he first saw the cab it was coming across the witness’ lane at about 15 to 20 miles per hour; that he “slammed” on his brakes and moved his car to the right to avoid a collision. He said he could have stopped his car within 45 feet. Witness denied that he had been traveling in the “curb lane”.

Defendant Cab Company first complains of Instruction No. 8 given at the request of plaintiff. It read as follows:

“The Court instructs the jury that if you find from the evidence that the plaintiff, Geraldine Harris, was seated as a passenger in the rear seat of the Yellow taxicab mentioned in the evidence and that said taxicab was proceeding in a northwestwardly direction across Union Boulevard and heading toward the entrance gate to Washington Terrace and if you find that at said time, the defendant, Albert Simms, was driving his 1946 Pontiac automobile southwardly along Union Boulevard and in the curb lane for southbound traffic on Union Boulevard approaching Washington Terrace; and if you find that at said time the defendant, Mound City Yellow Cab Company, by and through its driver, William E. Arnall, failed to drive the aforesaid taxicab in a careful and prudent manner and failed to exercise the highest degree of care in keeping a proper lookout in the direction in which he was operating said taxicab, and failed to keep a proper lookout ahead and to the north, or to the right for southbound vehicles in the southbound curb lane of Union Boulevard near the intersection of Union Boulevard and Washington Terrace, including Mr. Simms’ automobile, if so, and if you find that such failure to keep a proper lookout was negligence, and that such negligence, if any, caused or contributed to cause a collision between said taxicab and Mr. Simms’ automobile then you are instructed that your verdict should be in favor of plaintiff, Geraldine Harris, and against defendant, Mound City Yellow Cab Company, a Corporation.”

The Cab Company’s first objection to the above instruction is that it did not hypothesize the essential fact that the driver of the cab was at the time and place of the collision in the employ of that company or acting within the scope of any such employment. As stated, the Cab Company admitted in its answer that it was engaged in operating a system of taxicabs in St. Louis and, in the course of the trial, admitted its ownership of the cab in question, and that the company was authorized to operate it as a common carrier. Public records introduced verified such admissions, and witnesses and photographs tended to prove that the company’s name and cab number were printed on the body of the cab. Under such evidence the plaintiff was not required to prove affirmatively that the driver was the company’s agent and was acting within the scope of his employment. Fleischman v. Polar Wave Ice & Fuel Co., 148 Mo.App. 117, 127 S.W. 660; O’Malley v. Heman Const. Co., 255 Mo. 386, 164 S.W. 565, 566; Mann v. Stewart Sand Co., 211 Mo.App. 256, 243 S.W. 406.

The Cab Company next complains that the above instruction No. 8, in requiring the cab driver to maintain a proper lookout for other cars, omitted to submit the essential finding that the driver of the cab could have seen the approaching car, thus placing the absolute duty upon the cab driver to see the other car irrespective of his ability to see it, or whether the other car was where it could be seen. It is well settled that an instruction purporting to cover the entire case and to authorize a verdict must hypothesize all of the facts necessary for recovery. Fitzpatrick v. St. Louis-San Francisco Ry. Co., Mo., 300 S.W.2d 490, 491. Since Instruction No. 8 in the instant case required the jury to find affirmatively that the driver of the cab failed to keep a proper lookout for other vehicles, including that of defendant Simms, and that such failure was negligence and caused or contributed to cause the collision, such charge is equivalent to a requirement that the jury find that the cab driver could have seen the other vehicle if he had looked. Abernathy v. St. Louis Public Service Co., 362 Mo. 214, 240 S.W.2d 914, 920; See also Fortner v. St. Louis Public Service Co., Mo., 244 S.W.2d 10, 14.

Defendant Cab Company next raises the further point regarding plaintiff’s said Instruction No. 8, to-wit, that as against that defendant the instruction submitted both general and specific negligence. The instruction as we have seen, having hypothesized the facts leading up to the collision between the cab and the car driven by defendant Simms, stated: “and if you find that at said time the defendant, Mound City Yellow Cab Company, by and through its driver, William E. Arnall, failed to drive the aforesaid taxicab in a careful and prudent manner and failed to exercise the highest degree of car in keeping a proper lookout in the direction in which he was operating said taxicab, and failed to keep a proper lookout ahead and to the north, * * * and if you find that such failure to keep a proper lookout was negligence, and that such negligence, if any, caused * * * ” etc. (Italics supplied). The petition alleged that the collision was the direct and proximate result “of the negligence and carelessness of the said defendant Mound City Yellow Cab Company, a corporation, and Albert Simms”, and proceeded to charge defendant Simms with several specific acts of negligence. It is asserted by defendant Cab Company that such Instruction No. 8 thus submits to the jury the hypothesis that it failed to drive its cab in a careful and prudent manner (general negligence) and that its driver failed to keep a proper lookout (specific negligence).

It is well settled that a charge of general negligence and one of specific negligence cannot both be submitted; that general negligence takes flight when specific negligence appears. Fuller v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 675, 678; State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422. However, it will be observed that the said instruction, while- hypothesizing generally the cab driver’s failure to drive his cab carefully and prudently (characterized by the Cab Company as an assignment of general negligence) it does not require the jury to find that such conduct was negligence or that it caused or contributed to cause the collision, but the only act of the cab driver submitted by the instruction as negligence and as the cause or as contributing to the cause of the collision is the cab driver’s failure to exercise the highest degree of care to keep a proper lookout.

Defendant Cab Company cites and relies much on the case of Watson v. Long, Mo.App., 221 S.W.2d 967. In that case the instruction read: “and that defendant Brown failed to exercise the highest degree of care in operating said vehicle at said time and place and failed to maintain a vigilant watchout ahead of said automobile as it approached U. S. Highway 50 and drove said automobile at a high speed in said intersection * * * and collided * * * then said defendant Brown was negligent, and if you find that plaintiff * * * was injured as a direct result thereof, then your verdict,” etc. (Italics supplied). The court held the instruction erroneous and said, at page 969: “It is uniformly held error to submit both general negligence and specific negligence.” (citing authorities). It will be noted in that case that each act of the driver Brown was conjunctively submitted to the jury as negligence and as the direct cause or contributing cause of the collision. The case of Watson v. Long, supra, is plainly distinguishable from the case at bar.

That the parties in the instant case construed and treated plaintiff’s Instruction No. 8 to submit as to the Cab Company as negligence causing or contributing to cause the collision, its failure to maintain a proper lookout, is evident from the record. In the Cab Company’s Instruction No. 9, it submitted the converse of the single assignment of its failure to maintain a proper lookout. In its Instruction No. 12, submitting as the sole cause of the collision the negligence of its co-defendant Simms, it admits that a finding against Simms upon the facts therein hypothesized, would require a further finding that the Cab Company itself was "not negligent as submitted in other instructions.” In its sole cause Instruction No. 13, submitting the degree of care on defendant Simms’ part to see the cab and to avoid the collision, the Cab Company conceded the necessity of finding itself not negligent “as set forth in other instructions herein”, thus resubmitting the charge of negligence against it as contained in plaintiff’s Instruction No. 8 and other instructions given in the case upon that point.

During the oral argument in the trial court, counsel for the Cab Company several times objected to statements of other counsel on the above subject, for instance: “I object to any argument against the Cab Company as to any facts other than we failed to keep a proper lookout; that is the only thing we are charged with here, failing to keep a lookout.” Plaintiff’s counsel, also, argued that the Cab Company had reason to know the danger of crossing the boulevard and asserted that its driver had the duty “to see that as he crossed those lanes, there was nothing coming”; that failure to see was a failure to look; that “he failed to keep a lookout and as a result this collision occurred”. Again counsel for the Cab Company said in his argument to the jury: “You know the only thing the Yellow Cab Company is charged with in this lawsuit and the only thing you can consider against the Yellow Cab Company is that it failed to keep a proper lookout. That’s the only thing we are charged with. You are not to discuss anything else. The Court tells you, you are not to go outside these charges which have been made here. The only thing- we are charged with, if you will read those instructions, is that we failed to keep a proper lookout; if.that man (the cab driver) just kept looking, if you believe he kept looking, your verdict shall be for the defendant Mound City Yellow Cab Company. You can stop right there. If you think he kept a lookout, if you think he did the best he could to look, you can stop right there as far as the Yellow Cab Company is concerned and bring in your verdict for us because that is all we are charged with.” In its motion for a new trial, however, the Cab Company included as a ground therefor that plaintiff’s Instruction No. 8 had erroneously submitted both general and specific negligence as against that defendant.

Even if the references in plaintiff’s Instruction No. 8 to the cab driver’s general careless and imprudent operation of the cab constituted a proper submission of general negligence, the. Cab Company’s right to complain of it is a different question. In Snelling v. Triplett, Mo.App., 171 S.W.2d 739, it was held that if the instruction therein did submit general negligence when specific negligence was shown, it was error. But the court held at page 741:

“Due to the manner in which the case was submitted to the jury by the instructions of both parties, whether Instruction No. 1 should be declared to be reversibly erroneous is another question. (Citing authorities), * * * the law is declared to be that if defendant joins in the error by asking and receiving counter instructions on general negligence, and there is no instruction submitting specific negligence, the error is waived. Defendant’s instructions above set out make it clearly manifest that he joined in the manner in which the issue of negligence was presented to the jury by plaintiff’s Instruction No. 1.”

It was held that the defendant had waived the error.

In State ex rel. and to the use of Reeves v. Shain et al., Mo. en Banc., 343 Mo. 550, 122 S.W.2d 885, 887, the principle of waiver of objections to instructions is applied. It was said:

“Our judgment is that the petition in the case at bar charges general negligence ; that the evidence tends to prove specific negligence, and that plaintiff’s Instruction No. 1, in violation of above rule, erroneously submitted the case to the jury on general negligence. Defendant bus company joined in the error by asking and receiving counter instructions on general negligence. * * * the error * * * being common to both parties, the result would be the same whether our conclusion is right or wrong.”

We find it difficult to believe that the court, jury or counsel, in considering the only complete submission of negligence on the Cab Company’s part, in plaintiff’s Instruction No. 8, namely, its failure to maintain a proper lookout, was misled or confused by the introductory references therein to the cab driver’s general careless and imprudent operation of the cab. We believe that the mere preliminary submission of such general conduct on the part of the cab driver without requiring a finding that it constituted negligence and caused or contributed in causing the collision, may be error, but if so, was harmless error, and, furthermore, was waived by the Cab Company as heretofore stated.

Defendant Cab Company next complains of plaintiff’s instruction No. 11. That instruction told the jury that if the negligence of one defendant was less than that of the other, and if both contributed to the injuries, neither could use that fact to defeat recovery against both defendants. The Cab Company claims that the instruction permitted the jury to speculate on the degree of negligence. We construe the instruction to forbid the jury to consider degrees of negligence at all if they found the negligence of both concurred to cause or to contribute to cause the injuries. The point is overruled.

Defendant Cab Company makes the point that plaintiff’s Instruction No. 16 erroneously allows recovery for permanent injuries where there was no substantial evidence to support such recovery. It will be recalled that one physician testified that “I feel that this will not ever be a totally normal right lower leg.” There was also evidence of scaling of the tissue from both the fracture and the surgery; there was evidence of a limp, stiffness and atrophy of her ankle and foot, pain during cold and damp weather, and of other results, the permanency of which was uncertain. It cannot be ruled that there was no substantial evidence of permanency.

Defendant Cab Company claims error in the overruling of its objection to questions regarding the number of cabs it operated. Over the objection of that defendant, plaintiff’s witness was allowed to state that permits had been issued to it to operate 250 cabs. This, it is claimed, was for the sole purpose of conveying to the jury the financial ability of the Cab Company. The petition put in issue the fact that the Cab Company was a common carrier, operating a system of taxicabs as such in the City and County of St. Louis, Missouri. The Cab Company admitted such fact in its answer. When testimony was made available by the plaintiff to prove those facts, the Cab Company then orally admitted its incorporation, ownership of the cab, and that the company was a common carrier; but plaintiff nevertheless introduced evidence in support thereof, claiming that it was not bound by the admissions made. See Ruppel v. Clayes, 230 Mo.App. 699, 72 S.W.2d 833. The number of cabs so operated as a “system” in the city and county named was a related matter and not prejudicially erroneous.

Defendant Cab Company’s next point relied on is that the court erred in overruling its objection to plaintiff’s witness Dr. Strauss’ testimony that plaintiff was put on the critical list at the hospital as soon as the diagnosis of pulmonary infarction was made “ * * * because there was potential danger of death. She fortunately did not die.” It is said that such testimony was irrelevant, immaterial, and prejudicial. The physician was testifying as to the blood clot found to exist in plaintiff’s lung, and explaining the nature and serious effects thereof. By way of explanation he described the shortness of breath accompanying such condition and significant signs of danger. In relating his treatment, he then said he first placed plaintiff on the critical list “because of the potential danger of death.” The fact that plaintiff did not die and later recovered from her lung involvement, would not, in our opinion, transform the doctor’s statement, as the Cab Company contends, into one confusing the issues and unfairly surprising the defendant Cab Company to its prejudice.

Finally, defendant Cab Company claims error in the court’s overruling its objection to plaintiff’s introduction of a mortality table to show her life expectancy. It is argued that such evidence is immaterial and irrelevant, and is usually admissible only when impairment of earning capacity is pleaded. It is admitted that no authority covering the point has been found available. Having pleaded the injuries, the past, present, and future pain and suffering, anguish of mind, past and future medical care and surgical attention; and having proved permanency as to some of the injuries; it was incumbent upon the plaintiff to produce “evidence of their existence and extent, and some data from which they may he computed.” Lee v. Armour Bldg. Co., Mo.App., 18 S.W.2d 102, 105; 25 C.J.S. Damages § 28, page 496. We believe that under all the circumstances of record, we cannot rule that plaintiff’s normal life expectancy was irrelevant or that it had no probative value in the determination of the nature, extent, and duration of the damages sustained.

Defendant Simms, in his separate appeal, first attacks the plaintiff’s Instruction No. 11. As stated, that instruction directed the jury as to the effect of concurrent negligence of the defendants causing or contributing to cause the collision. It stated that “if both defendants were negligent in any respect submitted to you in these instructions,” which caused or contributed to cause plaintiff’s injuries, then neither defendant, if less negligent than the other, could make use of the concurring negligence to defeat plaintiff’s claim against both. In plaintiff’s verdict-directing Instruction No. 10, as against defendant Simms, she had charged him only with failure to keep a proper lookout, although in her petition she had pleaded, among other assignments of negligence, excessive speed and failure to see the cab or to use the highest degree of care to see it. Thus, the defendant Simms claims plaintiff abandoned all charges of negligence against him except failure to maintain a proper lookout. He maintains, however, that by the quoted words in plaintiff’s said Instruction No. 11, he was charged with additional negligence submitted in defendant Cab Company’s two sole cause instructions assigning against Simms excessive speed and failure to exercise the highest degree of care to see the impending danger of collision, and thus to have stopped or slowed his car and thereby avoided the collision. As to these two additional charges of negligence, defendant Simms asserts that they were abandoned by the plaintiff, and are inconsistent and prejudicial to him.

Defendant Simms in his own verdict directing sole cause Instruction No. 14, hypothesized as the sole cause of the collision the fact that the cab driver operated his cab at a dangerous proximity to the southbound car of Simms when such driver saw, or in the exercise of the highest degree of care he could have seen, the danger of collision so as to have avoided the same, and sought a finding to that effect, provided that “said, injuries, if any, were not due to any negligence on the part of Albert Simms as set out in other instructions herein.’1 (Italics-supplied). Thus by inviting the jury’s consideration of “any negligence” on his part “as set forth in other instructions herein,” he is in no position to urge that plaintiff’s. Instruction No. 11 does the same thing (if it does), nor that the assignments of negligence in dispute were abandoned. The rule is well settled that one party may not complain or take advantage of erroneous instructions given at the request of his adversary if his own instructions contain the same objectionable matter. The error complained of, if it be error, has been waived. Jewell v. Arnett, Mo., 318 S.W.2d 277, 279;. Bowers v. Etherton, Mo., 216 S.W.2d 83, 87; Wilson v. Northwestern Electric Power Cooperative, Mo.App., 301 S.W.2d 882. The defendant Simms point 1(a), (b), (c). is accordingly overruled.

Both defendants urge that the verdict is excessive. It would serve no purpose to review in detail the extensive record* of the plaintiff’s injuries and damages as-shown by her evidence and hereinbefore described. Reviewing it generally, we consider the extreme pain and suffering both-from the fracture and the surgery; the confinement of two months in the hospital; the severity of the treatments, the wearing of' the casts and their effect upon the injured limb; the limitations of use of the leg, ankle and foot; the blood clot experience and” consequent lung affliction; the permanency-of some of the injuries, and other specifica--tions of damages. In the opinion of the jury and judge of the trial court the amount of the verdict was deemed proper. We find nothing in the record to support a contrary ruling.

Finding no error substantially affecting the merits of the case, we conclude that the judgment of the trial court should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by Judge DEW, 'Special Commissioner, is adopted as the -opinion of the Court.

The judgment of the circuit court is accordingly affirmed.

RUDDY, P. J„ and WOLFE and ANDERSON, TL, concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Raymond KUTZ, Plaintiff-Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Defendant-Respondent.
    No. 31183.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.
    Rehearing Denied May 14, 1963.
    Robert Nagel Jones, St. Louis, Norman R. Jones, Kansas City, for appellant.
    Robert C. Ely, St. Louis, for respondent.
   BRADY, Commissioner.

This is an action filed by appellant, hereinafter called plaintiff, against the respondent, hereafter called defendant, under the provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq-uitur. The jury found in favor of plaintiff and assigned his damages at $3,500.00. Defendant’s motion for judgment in accordance with its motion for directed verdict was sustained and this appeal followed.

The plaintiff’s petition originally alleged “The agent, servant and employee, Frank Fields, of the defendant, who was required to assist the plaintiff in repairing said leak, while in the due course and scope of his employment, negligently and carelessly failed and omitted to hold the iron pick he was using in a secure manner and permitted the same to hit plaintiff when in the exercise of ordinary care he would not have done so.” At the time of trial, plaintiff obtained leave of court to amend his petition and did so by adding subparagraph 5(d) to his petition which reads as follows: “The agent, servant, and employee of defendant, Frank Fields, was supervising and directing the plaintiff in the performance of his duties and while in the course of his employment with defendant and when in the furtherance of defendant’s business did intentionally assault the plaintiff by striking the plaintiff with a pick axe.”

Plaintiff is a pipefitter and in addition to his regular work on December 20, 1957, was asked to work overtime to repair a steam leak. In order to repair the steam leak, a ditch had to be dug. On this job were four laborers, the plaintiff and one other pipefitter, and Frank Fields, the leader or foreman of the gang. What happened can best be stated in plaintiff’s own language and that of his witnesses. Plaintiff testified that: “A. Well, after they dug the trench open and had the slab off the concrete Zmailo was in the ditch with a suction hose trying to get the water out of there so we could go to work, the pipe-fitters could go to work. In the meantime the suction hose either stopped up or the pump wasn’t pumping and Zmailo was shaking the hose to try to get it to work. It was quite awhile he was doing that and Mr. Fields — I don’t know — he said, ‘Throw it out, throw it out,’ and Zmailo didn’t even —I took it he didn’t understand him and I said, ‘John, he said to throw that hose out.’ So, John just picked the hose up and throws it out and when he does Fields said, T didn’t tell him to throw the hose out,’ and then I used some — Q. Go ahead and tell them. What did you say? A. I called him a (obscenity) liar and he picked up the pick and he said, ‘I’m getting tired of you telling me that,’ and I said, ‘Well, you are, if you didn’t say that to the man,’ and that’s when he hit me.” The other pipefitter on the job described the name calling and then testified that Fields said “Take that back” and he said, “No. I won’t,” and plaintiff called Fields the same name again whereupon Fields jumped across the ditch and hit the plaintiff with a pick. The witness Lovett, a laborer on the job, testified that when the plaintiff called Fields the name, Fields replied “ * * * Don’t call me that no more” and he said, “I’m tired of hearing that” whereupon the plaintiff again called Fields the name.

The use of such language is common among these employees according to the plaintiff and his witnesses who also testified they had heard Fields use this word on other occasions.

The petition was filed in December, 1958 but the case was not completed on the trial level until December, 1961. It was submitted to this court during our December, 1962 docket.

The plaintiff’s verdict-directing instruction required the jury to find, among other things, that “ * * * Fields, then and there acting in the course of his duties for defendant and directing and supervising the said work in furtherance of the defendant’s business, if so, did strike the plaintiff. * * * ” Defendant offered and the trial court gave an instruction requiring the jury to find in favor of defendant if they found “ * * * that the act of Frank Fields in striking plaintiff had no connection with the duties of Frank Fields ns an employee of defendant, and that such act was not intended to and did not promote or further the business of defendant, and that such an act. was personal between Frank Fields and the plaintiff. * * * ”

The defendant’s motion for a directed verdict was upon the grounds that this evidence was insufficient to authorize submission to the jury of the issue that Fields’ action in striking the plaintiff with the pick was in furtherance of defendant’s business. The trial court’s action with respect to defendant’s after-trial motion was on this same ground and that is the only ■question presented for our determination.

It will serve no useful purpose to construe the word “negligence” as used in Title 45, § 51, U.S.C.A. Regardless of what construction we would put upon it the word as used in the Federal Employers’ Liability Act now includes an assault, provided that assault was committed in the •course of the discharge of the employee’s duties and in furtherance of the work of the employer’s business. Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082. In determination of this issue, the plaintiff is to be given the benefit of every doubt. Ratigan v. New York Central Railway Co., 2 Cir., 291 F.2d 548.

The plaintiff was not working when this incident occurred and there is a total lack of evidence to show that Fields’ act could reasonably be said to have been done in a desire to hurry up the work. Compare Jamison v. Encarnación, supra, where the Supreme Court of the United States specifically found that the assault was made ■“ * * * ⅛0 llurry him about the work.” Neither was there any question here as to disobedience of an order. In his brief plaintiff asserts that “In the present case the assault by Fields, the foreman, could certainly be an act of discipline. * * * A jury could reasonably have found that the assault was to prevent appellant and others from disputing this work order and similar ones in the fixture.” The fallacy of that argument is that when called this name Fields’ reply according to plaintiff’s own testimony was, “I’m getting tired of you telling me that” and only upon plaintiff stating “Well, you are, if you didn’t say that to the man” did Fields strike plaintiff. Fields’ very language and the plaintiff’s reply clearly show the personal nature of this occurrence and negates any desire or intent at discipline. Certainly there is no issue presented here as to discipline for disobedience to a work order for plaintiff’s own contention is that the order was given and obeyed. There is no evidence upon which the jury could reasonably make the finding required of it by plaintiff’s verdict-directing instruction that the act of Fields in striking the plaintiff was in furtherance of the defendant’s business. The trial court should have sustained the defendant’s motion for a directed verdict and correctly sustained the defendant’s later motion for judgment in accordance with that motion for a directed verdict. The judgment should be affirmed and the Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

RUDDY, Acting P. J., and PHIL H. COOK and SAM C. BLAIR, Special Judges, concur.


author: RUDDY, Presiding Judge.

text:
    Isabelle K. TAYLOR, Plaintiff (Appellant), v. Hal J. TAYLOR and Charles W. Taylor, Defendants (Respondents).
    No. 31169.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.

      Lashly & Neun, Paul W. Lashly, Hugh C. Roberts, Jr., St. Louis, for plaintiff-appellant.
    Gerwitz & Seegers, G. L. Seegers, St. Louis, for defendants-respondents.
   RUDDY, Presiding Judge.

This is an appeal by plaintiff from an order dismissing her petition.

The petition is in two counts. In Count I of her petition plaintiff, Isabelle K. Taylor, alleges that she was granted a decree of divorce from defendant, Hal J. Taylor, on ■her cross-bill in a divorce action brought by her husband, in the circuit court of the City of St. Louis. In the decree, among other things, the court entered the following order:

“Plaintiff ordered to pay to defendant as alimony the sum of $50 per month on the first day of each month commencing July 1, 1950 and ending February 1, 1952 and thereafter to pay to defendant 25% of plaintiff’s net income in each year from whatever source derived, payable on March 15, 1952 for the calendar year 1951, and on the same day each year thereafter for each preceding calendar year until plaintiff’s death or defendant’s marriage. Said net income to be computed without deduction of any payments to be made to defendant by plaintiff under the terms of this decree. Plaintiff ordered to submit to defendant each year together with his payment to defendant of 25% of his net income, a verified copy of his federal income tax return for such year. Indemnity agreement to secure such payments filed.”

In her petition plaintiff further alleged that defendant, Hal J. Taylor, paid all of his alimony obligations up to and including February 1, 1952, but that he has failed to pay any alimony to the plaintiff since that date. Plaintiff further alleged that defendant, Hal J. Taylor, has had a net income for the years 1951 through 1960 and that she is entitled to receive alimony payments in accordance with the provisions of the decree entered by the court in the divorce action. She further alleged in said petition that defendant, Hal J. Taylor, in violation of the divorce decree and the order contained therein has wrongfully furnished her with copies of his Federal Income Tax Returns for the years 1951, 1952, 1953 and 1954, “which purported copies do not reveal all of the income of defendant Hal J. Taylor for said years, thereby intending to deprive plaintiff of the moneys rightfully due her.” Plaintiff further alleged that said defendant, Hal J. Taylor, in violation of said decree has wrongfully failed and refused to furnish her with verified copies of his income tax returns for the years subsequent to 1954 and in violation of the decree of alimony has wrongfully failed and refused to pay to plaintiff the moneys due her under the aforesaid alimony order.

Plaintiff further alleged the following:

“Plaintiff does not know and cannot ascertain without the aid of an accounting the amount of net income of defendant Hal J. Taylor for said years and the consequent amount of money due her for said years. Without an accounting of the net income of Hal J. Taylor from February 1, 1952 plaintiff is unable to determine the amount that is due from defendant Hal J. Taylor.”

Plaintiff further alleged the following:

“Plaintiff is entitled to an accounting and thereafter to have recovery against defendant Hal J. Taylor for the amount of alimony that is due by the specific performance of the order of the St. Louis Circuit Court set out above.”

She concludes her petition with a prayer asking for an accounting of the net income of the defendant, Hal J. Taylor, for the years mentioned above and “ * * * for a judgment for the specific performance of the order of the Circuit Court of the City of St. Louis for the money due said plaintiff for alimony together with interest thereon * * *.”

In Count II of her petition plaintiff restated the allegations contained in Count I and then alleged that defendant, Charles W. Taylor, entered into an agreement to indemnify her for all payments due or to become due from defendant, Hal J. Taylor, under the alimony order. She sets out in toto the alleged indemnity agreement. She concludes her allegations in Count II with a prayer for an order of specific performance of the indemnification agreement “ * * * upon the determination of the money due the plaintiff for alimony for the years * * * ” in question.

Defendants filed a motion to dismiss both counts of plaintiff’s petition. Among the grounds alleged in support of their motion to dismiss plaintiff’s petition and directed to Count I of said petition were the following:

“The prayer seeks ‘an accounting’ which is merely an ancillary discovery procedure in aid of a cause of action well grounded in equity and is not a cause of action in itself.
* * * * * *
“That the prayer in Count I requests a Circuit Court of St. Louis County to enforce by equitable decree, and the rendition of a money judgment, a judgment previously rendered by the Circuit Court of the City of St. Louis, a power neither this court nor any other court possesses.
“That a fiduciary relationship between plaintiff and defendant is essential to the ordering of an accounting, even in a proper case, and Count I not only fails to disclose such a relationship, but affirmatively reveals the absence of such a relationship.
“That Count I of the Amended Petition does not state facts upon which relief can be granted at law or in equity.”

That part of defendants’ motion to dismiss plaintiff’s petition directed against Count II of said petition, among other grounds, alleged the following:

“Count II, embodying, as it does, the agreement upon which the relief is sought, shows on its face, it does not state facts upon which relief can be granted.”

The trial court sustained the defendants’ motion to dismiss plaintiff’s petition in all respects but in its order did not set out the ground upon which it sustained the said motion. In her brief plaintiff denominates her petition as a suit instituted in equity for the enforcement of a decree and judgment of the Circuit Court of the City of St. Louis.

Plaintiff contends that she may properly invoke the powers of a court of equity to enforce a judgment where the legal remedy is unavailing and cites 49 C.J.S. Judgments § 587, p. 1074. The authority relied on by plaintiff deals with the power of a court to reach equitable interests in land not subject to execution “or other property of defendant which cannot be made available in the ordinary way * * but the authority does not cite any instances analogous to the one related in plaintiff’s petition. In this connection plaintiff readily acknowledges that Missouri courts have not been confronted with the precise problem involved in this present action. Plaintiff does cite two authorities, McDougal v. McDougal, Mo.App., 279 S.W.2d 731 and McElroy v. Ford, 81 Mo.App. 500, but an examination of these authorities discloses that both of them involve foreign judgments obtained in other states.

Plaintiff in her petition prays “ * * * for a judgment for the specific performance of the order of the Circuit Court of the City of St. Louis for the money due said plaintiff for alimony * * In addition, plaintiff prays for an accounting of the net income of the defendant, Hal J. Taylor, for the years in question. The equitable remedy of specific performance presupposes the existence of a valid contract between the parties to a controversy, the contract being generally required to have the essentials of a contract valid and binding at law in order to be enforceable in equity. 81 C.J.S. Specific Performance § 3, p. 412.

Again, in 81 C.J.S. Specific Performance § 1, p. 408, it is said:

“In its remedial aspect, specific performance is an equitable remedy which compels the performance of a contract in the precise terms agreed on, or such a substantial performance as will do justice between the parties under the circumstances. * * * ”
“ * * * It is a substitute for the legal remedy of compensation whenever the remedy at law is inadequate or impractical.”

At page 410 of the same authority is the following :

“ * * * Whether or not a suit is one for specific performance depends on the nature of the relief asked, and whether or not there is involved the enforcement of a contract. * * * ”

Therefore, it is quite clear from the above authority that before the equitable remedy of specific performance is available, there must be a valid subsisting contract between the parties.

In a case closely analagous to the facts in this case, Ives v. Ives, 247 Ala. 689, 26 So.2d 92, the court said,

“A court of equity has no more power under such circumstances than a court of law to render a personal decree for money except of course the court of equity which rendered the decree in the first instance. * * * ”

In 30A, Amer.Jur., Judgments, Sec. 916, pp. 815-816, it is said:

“A court of chancery does not, as a matter of course, enforce a judgment rendered by a court of law. * * * Indeed, there is authority for the rule that there may be no resort to a court of equity to collect a judgment debt except where special equitable relief beyond mere collection is sought. * * ”

In discussing plaintiff’s petition it should be pointed out that it is not a suit for the revival of a judgment or a suit to reduce to judgment in this state a judgment obtained in another state.

Plaintiff prays for an accounting. It is a fundamental rule in equity that an action for an accounting will not lie unless it is founded on some recognized ground for equitable relief. Johnston v. McCluney, Mo.App., 80 S.W.2d 898. The equitable ground on which plaintiff relies is that a fiduciary relationship existed between the parties to this suit. In support of her contention she cites Liddell v. Lee, Mo., 159 S.W.2d 769, where the court said at page 772:

“ * * * A fiduciary relation ‘exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith, and with due regard to the interests of the one reposing the confidence. * * *

We fail to see any fiduciary relationship between plaintiff and her divorced husband and between plaintiff and Charles W. Taylor, surety on the instrument sued on.

However, a more cogent reason exists for holding that plaintiff’s petition fails to state a cause of action. The decree of divorce of which the alimony order is a part was entered June 6, 1950. Section 452.070 RSMo 1959, V.A.M.S., is similar to the statute in force when the decree was entered. This statute provides that when a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife as from the circumstances of the parties and the nature of the case shall be reasonable. Section 452.080 RSMo 1959, V.A.M.S., in effect when the decree was entered, provides, that when a decree of divorce is granted in favor of the wife the court may decree alimony in gross or from year to year. Alimony is awarded in a fixed sum or sums and is not left to future determination by further hearings. Bishop v. Bishop, Mo.App., 151 S.W.2d 553, l. c. 556. We said in the case of Pflanz v. Pflanz, 237 Mo.App. 873, 177 S.W.2d 631, l. c. 634:

“ * * * It is well established that, under Missouri practice, a judgment for alimony or maintenance in a divorce suit is treated the same and is subject to the same incidents as other judgments rendered in actions at law, and that under Section 1519, supra, (now 452.070, RSMo 1959) an execution may issue on failure of defendant to pay such a judgment.”

To the same effect see State ex rel. George v. Mitchell et al., Mo.App., 230 S.W.2d 116, l. c. 121; Hansen v. Hansen, 240 Mo.App. 245, 203 S.W.2d 86, l. c. 88; In re Kinsolving, 135 Mo.App. 631, l. c. 642, 643, 116 S.W. 1068.

The judgment for alimony should be definite in amount and must be so in order to be responsive to an execution and as said in Goldstein v. Goldstein, 237 Mo.App. 274, 165 S.W.2d 876, l. c. 879:

“The reason for a judgment definite in amount and responsive to execution in judgment for care and support of a minor child is to the end that means of support be available for present need.”

And as we said in the case of Kelly v. City of Cape Girardeau et al., 230 Mo.App. 137, 89 S.W.2d 693, l. c. 698, “ * * * and, of course, for a judgment or a decree to create a lien, it must be for a definite and certain sum of money, capable of collection by execution levied upon the property of the judgment debtor. * * * ”

It is a well established rule of law for which support can be found in the cases and textbooks that a judgment must be sufficiently certain in its terms to be susceptible of enforcement in the manner provided by law. It must be in such form that the clerk is able to issue an execution upon it which an officer will be able to execute. Bishop v. Bishop, supra; 49 C.J.S. Judgments § 72, pp. 191-192; 30A Amer. Jur., Judgments, Sec. 57, p. 205; 55 A.L.R. 2d pp. 725-726. If it is a judgment for money, it must specify with definiteness and certainty the amount for which it is rendered. 49 C.J.S. Judgments § 76, pp. 198, 199; 33 C.J.S. Executions § 6, p. 139; 30A Amer.Jur., Judgments, Sec. 61, p. 207; 55 A.L.R.2d 727-729 and 59 A.L.R. 2d p. 690 and Freeman on Judgments, 5th Ed., p. 748.

In the case of State ex rel. Whatley v. Mueller, Mo.App., 288 S.W.2d 405, we said, at l. c. 410:

“Reverting to the proceedings in the divorce action, it is readily apparent that the judgment of the Florida court is not complete within itself in that the money judgment imposed upon relator is not spelled out. * * *
“It is elementary that the judgment and its enforcement is the end of litigation, and therefore it is essential that the judgment dispose of the matters at issue so that the parties may be able to ascertain with reasonable certainty the extent to which their rights may be fixed.”

In Re Phillips’ Estate, 240 Mo.App. 9, 202 S.W.2d 107, l. c. 111, the court quoting from 33 C.J., p. 1064, see also 49 C.J.S. Judgments § 13, said:

“It is essential to the very existence of a judgment that the sentence, order, or adjudication in question shall be that of a judicial tribunal, determining the rights of parties, in formal proceedings for that purpose, in a final and definite manner.”

The rule that a judgment for money must specify with definiteness and certainty the amount for which it is rendered finds support in the decisions of the courts of other states. In the case of French et al. v. Goetz Brewing Co. et al., 3 Wash.2d 554, 101 P.2d 354 at l. c. 356, the court said:

“It may be stated as an established rule that, to sustain an action upon a judgment or decree, plaintiff must show defendant to have become bound by a personal judgment for the unconditional payment of a definite sum of money, final in its character and not merely interlocutory, remaining unsatisfied, and capable of immediate enforcement. (Citing cases.)
* * * * * *
“The decree upon which appellants claim they are entitled to maintain this action does not meet the requirements of the stated rule. There is no provision for the payment of a certain sum of money, nor is the decree capable of immediate enforcement. * * * ”

In the cases of McKay v. Coca Cola Bottling Co. of Santa Barbara, California, 110 Cal.App.2d 672, 243 P.2d 35 and Arbitration: Los Angeles, etc. and Stan’s Drive-Ins, California, 136 Cal.App.2d 95, 288 P.2d 291, the courts held that the judgment must be for money, and the amount due and the identity of the person to whom payable must be fixed with exactness. Of particular applicability to the facts of the instant case is the language of the Supreme Court of California in the case of Bank of America Nat. T. & Sav. Ass’n v. Standard Oil Co., 10 Cal.2d 90, 73 P.2d 903, where it said at l. c. 905:

“Neither the findings of fact, conclusions of law, nor the judgment specify the amount of money actually held by the trustee. * * *
“This judgment is not a complete determination of the rights of the trustee and the claimants to the fund. As between the trustee and the ranch company, it is an adjudication that the latter is entitled to a specified percentage of the net proceeds of the trust fund as against the claims of the defendants who have not appealed from it. But it is not a judgment upon which execution may issue. An execution must refer to the judgment, and state, ‘if it be for money, the amount thereof, and the amount actually due thereon.’ ”

The case of Ives v. Ives, supra, was a bill in equity filed in an Alabama court which sought a personal judgment for past due amounts decreed by a court of equity in Florida as alimony on granting a divorce. The decree provided, “ ‘that one-half of defendant’s salary up to and including $20.00 per week be and the same is hereby fixed and allowed to the plaintiff as alimony to be paid by defendant to the plaintiff only when defendant is gainfully employed, * * *.’ ” The Alabama court in denying plaintiff a personal judgment said:

“The decree in question is not for a fixed and definite sum. Its amount is dependent upon whether defendant is gainfully employed and what his salary is and when payable. A decree which does not definitely ascertain and fix the amount to be paid, and time of payment, and which attaches any contingency to its payment will not support an action at law until the court rendering the decree has ascertained the amount and removed the contingency. * * * ”

The court further said:

“A court of equity has no more power under such circumstances than a court of law to render a personal decree for money except of course the court of equity which rendered the decree in the first instance. Neither court in this State has jurisdiction to render a personal judgment on a decree such as is here declared on until the Florida court ascertains and decrees the existence of the matters there left open on the basis of which the amount is to be fixed. * * * ”

In the case of Bishop v. Bishop, supra, the court awarded plaintiff a decree of divorce and in its decree said, “ * * * Stipulation as to support and maintenance filed and approved by the Court.” The stipulation referred to in the judgment was filed in the court on the day the judgment was rendered. Among its numerous provisions was the following:

“That defendant shall pay the plaintiff, from and after the date of the decree of divorce herein, one-third of his total gross income, from whatever source derived, provided, however, that defendant shall not be obligated at any time to pay on account of this item a sum greater than One Hundred Dollars ($100.00) per week.”

This court in determining whether or not the stipulation could form the basis of a judgment and having in mind the paragraph quoted above, said, at l. c. 557:

“Furthermore, we do not see how a valid judgment could be entered on the stipulation filed in this case. It is elementary that a judgment must be sufficiently certain in its terms to be susceptible of enforcement in the manner provided by law. It must be in such form that the clerk is able to issue an execution upon it which an officer will be able to execute. 1 Freeman on Judgments, secs. 72 and 84; 1 Black on Judgments, sec. 118. No execution could be issued upon a judgment rendered in conformity with the stipulation in question here without a further trial to determine the amount for which the execution should issue.”

We are aware that if the judgment is indefinite and uncertain or is ambiguous, resort may be had to the pleadings, the verdict, the findings and other parts of the record and the judgment will be presumed to be in accordance with what is shown in the record. This rule is equally applicable as to the amount of recovery and reference may be had to the pleadings and other parts of the record and the judgment will be presumed to be in the amount therein shown. State v. Haney, Mo., 277 S.W.2d 632, 55 A.L.R.2d 717; State v. Mueller, supra; 49 C.J.S. Judgments § 442, p. 873. However, this rule of law is clearly inapplicable to the instant case. It is clear from a reading of the portion of the decree in the judgment awarding alimony at the time of the divorce hearing, that no part of the pleadings or record would be available to ascertain with definiteness and certainty the amount due under the alimony judgment.

The right to execution follows upon the rendition of a judgment. State v. Haney, supra. An execution must be supported by a valid decree or judgment. Woods v. Woods, 236 Mo.App. 855, 159 S.W.2d 320, and as we said before, the judgment must be sufficiently certain in its terms to be susceptible of enforcement and must be in such form that the clerk is able to issue an execution upon it which an officer will be able to execute. The circuit clerk before delivering an execution issued by him on the alimony judgment in the instant case must endorse on said execution the debt, damages and costs to be recovered, Section 513.045 RSMo 1959, V.A.M.S., Civil Rule 76.07, V.A.M.R. Obviously, the sheriff or other executing officer must know how much money or property to seize in order to satisfy the debt due under the execution.

There is little authority in this state on the question whether a purported money judgment for alimony or for any other purpose, indefinite and uncertain as to amount, and incapable of enforcement by execution renders it void. We think such a judgment is void because it lacks the certainty, definiteness and exactness necessary to a good judgment that can be enforced in a manner provided by law. Such is the purported judgment before us in the instant case. Furthermore, the alimony judgment in the instant case cannot be aided by anything in the record.

In the case of Rumsey v. People’s Ry. Co., 144 Mo. 175, 46 S.W. 144, the Supreme Court held a decree fatally defective because it failed to find the amount due on each account. The court said at 46 S.W. l. c. 147.

“It is also conceded that the decree is fatally defective on appeal or writ of error, because it does not find the amount due on each account, so that the defendant may know just what it must pay to avoid a sale of its property. It is clearly the duty of the court to specify the amount due the plaintiff, and where, as in this case, there are intervening plaintiffs with separate claims, the exact amount due each should be settled by the decree, and not leave it to be found or computed by others.”

In the case of Goldstein v. Goldstein, supra, the divorce decree provided that the father “maintain” the minor child of the parties “ * * * in clothing and furnish whatever monies are necessary for school and other purposes for said child.” The court found that this provision was so ambiguous so as not to support issuance of an execution.

Again, referring to our case of Bishop v. Bishop, supra, wherein we were faced with a stipulation that contained a provision similar to the alimony order entered in this case, we expressed a doubt that a valid judgment could be entered on the stipulation because a judgment thereon would not be sufficiently certain in its terms to be susceptible of enforcement in the manner provided by law.

We think that part of the divorce decree in the instant case that ordered the payment of alimony in the manner set out in said decree is indefinite and uncertain and is incapable of enforcement. For these reasons it is fatally defective and therefore, void. For the reasons stated, the judgment of the trial court is affirmed.

SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.


author: WALTER, Justice.

text:
    W. E. McCOOK, Appellant, v. FIRST STATE BANK OF ABILENE, Appellee.
    No. 3764.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 15, 1963.
    Rehearing Denied May 3, 1963.
    McMahon, Smart, Sprain, Wilson & Camp, J. M. Lee, Abilene, for appellant.
    Smith & Erwin, Frank Smith, Abilene, for appellee.
   WALTER, Justice.

W. E. McCook filed suit against First State Bank of Abilene on a $2,000.00 check he had given to Stim-O-Stam, Inc. McCook alleged that Stim-O-Stam’s endorsement on the check was forged and the bank cashed it and he was entitled to recover under Section 23 of Article 5932 of V.A.T.C.S. The court withdrew the case from the jury and rendered judgment that the plaintiff take nothing.

McCook has appealed contending the court erred in overruling his motion for a summary judgment and in rendering judgment for the bank because the evidence conclusively shows that he was entitled to recover under said Article 5932.

The record conclusively reveals the following facts. On February 9,1961, McCook purchased five shares of Stim-O-Stam’s stock for $2,000.00. He paid for this stock by giving his check on the First State Bank of Abilene, made payable to Stim-O-Stam and mailing it to its office. McCook’s check was taken by two of Stim-O-Stam’s commission agents from its office and delivered to M. W. Nunn. Nunn was one of the incorporators, a director and sales manager for Stim-O-Stam. At the time he endorsed the check he was its acting secretary. Nunn endorsed the check by signing the corporation’s name, Bobby Morrow’s name as president and his name as secretary. He was not authorized to sign Morrow’s name. He then delivered the check to the Honorable Gene Worsham, an attorney in Arkansas, who cashed it at the First National Bank of Little Rock, Arkansas, and in the ordinary course of banking business it was presented to and paid by the First State Bank of Abilene. McCook received and sold the stock that he purchased.

The facts in the case of Strickland Transportation Company v. First State Bank of Memphis, 147 Tex. 193, 214 S.W.2d 934, (Supreme Court), revealed the following: John W. Akard was a commission agent for Strickland at Memphis, Texas. Akard was authorized to accept checks from customers but was not authorized to endorse them. Akard received six checks payable to Strickland from White Auto Store for freight charges. Akard endorsed these checks and cashed them at the Memphis bank. Akard appropriated the money to his own use and benefit and absconded. After learning about Akard’s misconduct, Strickland took an assignment from White Auto Stores of all its rights against the bank.

After deciding that Strickland could not recover from the bank as payee of the checks, the court held that the payee Strickland had no cause of action against the bank as assignee of White Auto Stores because White’s liability to Strickland was discharged by delivery of the checks to Akard and their subsequent payment by the bank to Akard. The court said: “The unfortunate position in which petitioner finds itself is not due to any act or omission of White Auto Store but arises solely from the unfaithfulness of petitioner’s own agent. Under those circumstances it would not be just to say that White Auto Store must pay its debt again, either on the theory that it has recourse against the bank or on the theory that petitioner may have no effective remedy against the bank. It should not have to suffer the annoyance and expense of litigation, merely because petitioner’s agent proved untrustworthy; those burdens justly belong to petitioner. We think White Auto Store’s liability was discharged by it's delivery of the checks to Akard and their subsequent payment by the bank to Akard, and that, therefore, White Auto Store had no cause of action against the bank to assign to petitioner. And we so hold.”

Morrow testified that the stock issued to McCook had not been cancelled on the books of the corporation and that it received none of the proceeds from McCook’s check. McCook testified, in effect, that he was still obligated to pay for the stock. Based on the authority of Strickland Transportation Company v. First State Bank of Memphis, supra, we have concluded that McCook’s liability for the stock was discharged by mailing his check to the corporation which was received by its agents and subsequently paid by the bank.

McCook relies upon Section 23 of Article 5932 of Vernon’s Annotated Texas Civil Statutes which is as follows:

“Sec. 23. When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority. Acts 1919, p. 190.”

A recovery under this article presupposes that a party has suffered a loss. But what loss has McCook sustained? McCook testified that the only interest he had in this law suit was to see that Stim-O-Stam received its money. McCook was giving this testimony about facts peculiarly within his own knowledge. The corporation will not be permitted to recover indirectly through McCook that which it manifestly could not recover directly in its own name.

In Dycus v. Commonwealth National Bank of Dallas, Tex.Civ.App., 148 S.W. 1127, the court said: “Equity will prevent his recovering from the bank any more than the loss he has sustained. He is not entitled to recover from the hank, and also from the collaterals received by virtue of the transaction with Weil. He, however, is seeking to do both. He is holding on to the securities, and also seeking to recover from the bank.” McCook received the stock that he purchased and sold it after this suit was filed. Having received the benefit of his check, he cannot recover against the bank.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: BARROW, Justice.

text:
    Alice A. FETTY, Appellant, v. H. L. (Brownie) CHOATE and Hiram Thurman Tipton, Appellees.
    No. 14081.
    Court of Civil Appeals of Texas. San Antonio.
    April 3, 1963.
    Rehearing Denied May 1, 1963.

      James E. Klager, of Utter & Chase, Corpus Christi, for appellant.
    Lewright, Dyer & Redford, James W. Wray, Jr., Corpus Christi, for appellees.
   BARROW, Justice.

This is a venue action involving the negligence exception. Suit was filed by Alice A. Fetty, a feme sole, to recover damages for the wrongful death of her eight-year-old son, Audie Wayne Fetty, in a collision in Duval County, Texas, between a bicycle operated by Audie Wayne and a tractor trailer owned by H. L. (Brownie) Choate and operated by Hiram Thurman Tipton. The trial court granted defendants’ motion for instructed verdict, after plaintiff rested, and ordered the cause transferred to Jim Wells County.

Under Subd. 9a of Art. 1995, Vernon’s Ann.Civ.Stats., it is necessary for plaintiff to establish three facts by a preponderance of the evidence in order to maintain venue in Duval County: (1) that an act of negligence occurred in Duval County; (2) that such act or omission was committed by Tipton while acting within the scope of his employment for Choate ; and (3) that such negligence was a proximate cause of the death of Audie Wayne. It is conceded, for this appeal, that Tipton was acting in the scope of his employment at the time of the accident, so the issue is whether or not a fact issue was raised that Tipton committed an act of negligence proximately causing the death of Audie Wayne. We must examine the record, and if, after discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn by the facts proved, a jury might have found these venue facts favorably to the plaintiff, an instructed verdict was improper. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97.

Plaintiff asserts that Tipton failed to keep a proper lookout, was operating his vehicle at an excessive rate of speed under the circumstances, and, in any event, is liable under discovered peril issues. The accident occurred at the intersection of State Highway 359 and St. Joseph Street, just within the city limits of San Diego, Texas, on Saturday, July 22, 1961, at about noon. Tipton, accompanied by his swamper, James Harris, was proceeding north on Highway 359, and Audie Wayne was operating his bicycle west on St. Joseph Street. This intersection is controlled by a flashing red light for traffic proceeding on St. Joseph Street and a flashing yellow light for traffic proceeding on Highway 359. Both streets are thirty-one feet wide.

Tipton was the only eye-witness to the accident who testified at the hearing. He testified that prior to the accident he was very familiar with the intersection. The visibility was clear to his left, but the visibility to his right was partially obstructed by a filling station located on the southeast corner of the intersection, about thirty feet east of Highway 359 and about fifteen feet south of St. Joseph Street. Tipton testified that his speedometer was broken, but that he estimated his speed from 22 to 28 miles per hour at the time of the accident. As he approached the intersection, Tipton looked to the left and right, when about eighty feet from the intersection and again when about thirty to forty feet from same. He did not see anything in either direction, and there was no other traffic in the vicinity. When he was in about the center of the intersection, he saw the boy on a bicycle for the first time. Audie Wayne was then proceeding west in the north lane of St. Joseph Street and was about thirty to forty feet from the intersection. Tipton only saw the boy from his waist up and did not notice anything unusual. The first he knew of an accident was when his swamper stated that the boy had hit them. Tipton testified that he could bring his unit to a stop in approximately thirty to thirty-five feet at twenty-five miles per hour.

The accident was investigated by a highway patrolman who found gouge marks in the pavement which he identified as the point of impact. They were three feet, seven inches, south of the north curb line and nine feet, three inches west of the east curb line of the intersection. He expressed the opinion that the bicycle hit the saddle tank on the tractor. The patrolman measured sixty-six feet of the skid marks laid down by the tractor, which began eighteen feet, seven inches north of the gouge marks.

Tipton had the right of way at this intersection under Art. 6701d, § 35, Vernon’s Ann.Civ.Stats., but was required to proceed through the intersection with caution. We are not concerned in this venue action with the negligence of Audie Wayne Fetty, or any other defensive matter. The applicable rule here is that even though one is not required to anticipate negligent conduct, he can not close his eyes to that which is plainly visible and which would have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, writ ref., n. r. e. It is set forth in Lynch v. Ricketts, supra, that in a case of this character, standards of ordinary care such as the direction and extent of the observation which should be made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of facts.

It is our opinion that when these rules are applied to the physical facts and other evidence in this case a fact issue is raised as to whether Tipton kept a proper lookout. He knew that the visibility to his right was partially obscured and that he was required to proceed with caution through this intersection. The physical facts demonstrate that the bicycle could have been seen sooner than testified to by Tipton. It was for the jury to determine whether Tipton kept a proper lookout under the circumstances and if he did not, whether this was a proximate cause of the accident. The trial court improperly instructed a verdict for defendants.

The judgment is reversed and the cause remanded.


author: BATEMAN, Justice.

text:
    Edgar M. DILLON, Appellant, v. James Darrell MOORE, Appellee.
    No. 16159.
    Court of Civil Appeals of Texas. Dallas.
    April 5, 1963.
    Rehearing Denied May 3, 1963.

      Geo. W. Hutchison, Fowler Roberts and Stanley S. Crooks, Dallas, for appellant.
    Harris, Anderson, Henley & Rhodes and L. W. Anderson, Dallas, for appellee.
   BATEMAN, Justice.

This appeal is from a take-nothing judgment in a suit for damages for bodily injuries and property damage arising out of an automobile collision in which appellant’s passenger car was struck from the rear by appellee’s pick-up truck. The jury absolved both drivers of negligence and found that appellant’s injuries resulted from an unavoidable accident; also that he suffered no monetary loss. We have carefully considered the entire record, the briefs and the; oral arguments, and conclude that no reversible error is shown.

Appellant’s first point, that the trial court improperly sustained appellee’s objection to his jury argument, is overruled because the point was not preserved by a bill of exceptions. Pritchett v. Highway Ins. Underwriters, 158 Tex. 116, 309 S.W.2d 46, 50.

His second point is that the jury, finding that he sustained no damages is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule this point because of the well-settled rule that such an issue on damages, regardless of the. jury’s answer thereto, becomes wholly immaterial in the light of other findings requiring a take-nothing judgment. Southern Pine Lbr. Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334.

By his third, fourth and fifth points appellant contends that the jury findings that appellee did not fail to keep a proper, lookout and that the accident was unavoidable, and the failure of the jury to answer-affirmatively the special issue as to whether appellee’s failure to keep a proper lookout was a proximate cause of the collision, were all so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. He argues that, appellee having admitted that his attention was distracted by a tool box which he had placed on the floor of his pick-up truck, and which had slid forward behind appellee’s foot and prevented him from removing'his foot from the accelerator to the brake pedal, “the jury was clearly in error in their answers to the special issues in question.” This argument gains some plausibility by appellee’s testimony on cross-examination that if he had not been thus temporarily distracted the accident would not have happened and he would have been able to avoid it. Appellant directs our attention to Fisher v. Franke, Tex.Civ.App., 321 S.W.2d 903, no wr. hist., wherein the defendant admitted that he took his eyes off the road to reach for a box of cough drops to alleviate a violent spell of coughing and when he looked up again the plaintiff’s car had stopped in front of him. The jury found that defendant did not fail to keep a proper lookout, and the Texarkana Court held that this was so contrary to the overwhelming weight and preponderance of the evidence as to require a reversal of the defendant’s judgment. There was no showing that the coughing prevented him from applying his brakes. In the case before us, however, the so-called distraction was caused by an unexpected event which prevented the defendant from applying his brakes, and, evidently realizing that unless he eliminated the cause of this dangerous situation a violent collision would probably ensue, he looked down momentarily to ascertain what it was, removed the tool box, applied his brakes, and collided with the rear of appellant’s car, but probably with substantially less violence than if he had kept his eyes continuously on the road and not applied his brakes. The distinction between the cases is readily apparent. We are not concerned with questions as to whether appellee may have been negligent in placing the tool box on the floor of his vehicle without securing it against sliding up behind his feet while driving, or in driving with the unsecured tool box on the floor, or in following appellant’s car too closely. Appellee admitted that he had placed the tool box in the pick-up, but he was not charged with negligence in doing so. All we are here concerned with is the question of proper lookout. The jury’s failure to answer the proximate cause issue following the proper lookout issue was in obedience to the court’s instructions, as this issue was submitted conditionally upon an affirmative answer to the proper lookout issue. These three points are therefore overruled.

Since appellant’s failure to establish actionable negligence on the part of appellee requires affirmance of the judgment, we deem it unnecessary for us to consider or discuss appellant’s remaining points attacking the issues and findings in appellee’s favor on emergency.

Finding no reversible error in this record, and feeling that substantial justice has been achieved by the verdict and judgment, the judgment is affirmed.

Affirmed.


author: DIXON, Chief Justice.

text:
    H. R. STEWART, Appellant, v. Vance K. BREESE, Appellee.
    No. 16154.
    Court of Civil Appeals of Texas. Dallas.
    March 29, 1963.
    Rehearing Denied April 26, 1963.

      Robert E. White, Dallas, for appellant.
    Bradford, Pritchard & Ashley, Dallas, for appellee.
   DIXON, Chief Justice.

In a forcible entry and detainer suit ap-pellee Vance K. Breese was awarded judgment for possession of the property in question and for $150 rental damages during appeal to the County Court at Law and $150 attorney’s fees.

In his first point on appeal appellant H. R. Stewart says that the property was not sufficiently described to support a judgment. In his affidavit filed in the Justice Court, Guy Berry, agent for appel-lee Vance K. Breese, described the property as “Rt. 1, Box 496, Old Seagoville Road, Seagoville, Texas.” We think the description was sufficient. In any event appellant did not raise the issue until the case was on appeal. It was then too late. Granberry v. Storey, 61 Tex.Civ.App. 9, 127 S.W. 1122; 25 Tex.Jur. 484.

In his second point, appellant alleges error of the County Court in allowing appellee to amend his petition. The amendment alleged that appellant had failed to pay rent due for three months after appellant had appealed to the County Court. The amendment was proper. Evetts v. Johns, Tex.Civ.App., 76 S.W. 778; 25 Tex.Jur.2d 483.

In his third point appellant claims that no landlord-tenant relationship was shown— that a written agreement created an option: to buy.

Two written agreements are shown in the record. The first dated January 1, 1961 states that appellee has rented the premises to appellant at the rate of $75.00 per month, with an option to buy the property for $13,500. within twelve months upon payment to appellant of $500. as a down payment.

The second agreement, the basis of ap-pellee’s suit, signed November 15, 1961 by appellant and Mrs. Breese, wife of appellee Vance K. Breese, provides for the payment by appellant of rent at the rate of $75.00 per month on the 10th of each month. This document also provides for payment of $20.00 per month on $140.00 in arrears on the rent of a cafe which had burned. It is silent as to the option mentioned in the earlier writing dated January 1, 1961.

There is no merit in appellant’s third point. The agreement of November 15th, 1961, signed by appellant apparently superseded the earlier agreement. But whether it did or not, we think the earlier agreement established the relationship of landlord-tenant for two reasons:

(1) It expressly and plainly provides that the premises are being rented to appellant for the sum of $75.00 per month.

(2) The option agreement was not a contract of sale. Slaughter Cattle Co. v. Potter County, Tex.Civ.App., 235 S.W. 295, (aff. Tex.Com.App., 254 S.W. 775); 43A Tex.Jur. 76. Appellant did not exercise his option. The relationship of landlord and tenant continued in effect.

Appellant’s third point is overruled.

The substance of appellant’s fourth point is that the County Court at Law never obtained jurisdiction of the appeal from the Justice Court because the Justice of the Peace did not file the transcript and papers in the case with the County Clerk within six days from the date of filing the appeal bond, as provided by Rule 751, Texas Rules of Civil Procedure.

We do not agree. In our opinion the Rule 751, T.R.C.P. is directory, not mandatory. If there was any duty on the part of anyone other than the Justice of the Peace to see that the Rule was complied with, it was appellant, not appellee. The situation presented by this point on appeal is somewhat unusual in that here we have a case in which the appellant is attacking his own appeal. The fourth point is overruled.

Appellant’s fifth point is to the effect that the correct measure of damages during the time the case was on appeal in the County Court at Law is the market value of the property during the time possession is withheld from the landlord, not the rental provided in the lease. Appellant correctly states the law in regard to the measure of damages. Haginas v. Malbis Memorial Foundation, Tex.Civ.App., 349 S.W.2d 957 (aff. Tex.Civ.App., 354 S.W.2d 368); Snyder v. Tousinau, Tex.Civ.App., 177 S.W.2d 799; Jones v. Cleaver, Tex.Civ.App., 250 S.W. 251. But it will not avail him here. So far as the record shows he did not except to appellee’s amended petition in the County Court at Law on the grounds he here asserts, or object to the testimony which appellee offered as the measure of damages — the arrears in rent. By his failure to except or object he waived any complaint on appeal as to the measure of damages. Lloyds America v. Payne, Tex.Civ.App., 85 S.W.2d 794; Iowa Mfg. Co. v. Baldwin, Tex.Civ.App., 82 S.W.2d 994, 999; Parks v. Hines, Tex.Civ.App., 68 S.W.2d 364, 368. Appellant’s fifth point is overruled.

In his last point appellant claims that the rent had been paid therefore there was no basis for the suit. The record includes a duplicate deposit slip provided by appellee for $75.00 in the Grove State Bank of Dallas, Texas in appellee’s name. It is dated December 27, 1961. A payment on the rent was due December 10, 1961. Suit was filed December 19, 1961, eight days prior to the alleged bank deposit. Appellant says he tendered the copy of the bank deposit slip to Mr. Berry, the agent who had filed the suit for appellees. Mr. Berry refused to accept the slip. There was testimony that the payment due December 10, 1961 had not been paid, which testimony the trial judge obviously accepted as true. Appellant’s fifth point is overruled.

The judgment of the trial court is affirmed.