author: FANNING, Justice.

text:
    Hearl WILLIAMS, Appellant, v. H. M. MARTIN et al., Appellees.
    No. 7689.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 19, 1965.
    Rehearing Denied Nov. 9, 1965.

      J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellant.
    Joyce Cox, James A. Pakenham, Fountain, Cox & Gaines, Houston, for appellees.
   FANNING, Justice.

Plaintiffs-appellees H. M. Martin, Cleveland Davis, Floyd Enlow, J. E. Carradine and H. P. Melton, brought an action in trespass to try title against appellant Hearl Williams, to recover title and possession of 300 acres of land in Brazoria County, Texas. Plaintiffs-appellees claimed to be the record owners of the lands here involved in a 1941 agreed judgment entered by Brazoria County District Court involving plaintiffs-appellees’ predecessors in title and this same defendant-appellant Hearl Williams. Defendant-appellant Hearl Williams in the suit at bar plead not guilty and the three and ten year Statutes of Limitations. The land here in controversy is a portion of the same lands awarded to plaintiffs-appellees’ predecessors in title by such agreed judgment of 1941. It is uncontroverted that defendant-appellant Hearl Williams remained in possession of a small portion of the said 300 acres after said 1941 judgment.

Trial was to the court with the aid of a jury. Defendant’s motion for instructed verdict was overruled by the trial court. Special issues 1, 2 and 3 and the jury’s responses thereto were as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that in the year 1943 the defendant, Hearl Williams, gave oral notice to plaintiff H. M. Martin that he was repudiating his tenancy and claiming the land in question as his own?
“ANSWER: We do’ or ‘We do not.’
ANSWER: We do not.
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that the defendant, Hearl Williams, asserted adverse possession, if any, between the year 1943 and August 17, 1956, to the property in controversy against the plaintiffs such as was and is of such unequivocal notoriety that plaintiffs would be presumed to have notice of such adverse possession ?
“ANSWER ‘WE DO’ OR ‘WE DO NOT’
ANSWER: We do.
“If you have answered either Special Issue No. 1 or Special Issue No. 2 ‘We do,’ and only in such event, then answer:
“SPECIAL ISSUE NO. 3
“Do you find from a preponderance of the evidence that Hearl Williams held exclusive, peaceable and adverse possession of the land in controversy in this suit, cultivating, using or enjoying the same for any consecutive period of ten years between 1942 and August 27th, 1956?
“ANSWER ‘WE DO’ OR ‘WE DO NOT’
ANSWER: We do not.”

Based upon the verdict of the jury the trial court entered judgment that plaintiffs recover the land sued for. Defendant’s motion for judgment n. o. v. was overruled by the trial court. Defendant’s amended motion for new trial was overruled by operation of law. The defendant-appellant Hearl Williams has appealed.

Appellant presents 20 points on appeal. Appellant contends to the effect, among other things, that the trial court erred in rendering judgment because of an irrecon cilable conflict in the answers of the jury to special issues 2 and 3 that the trial court further erred in overruling defendant’s motion for instructed verdict, in submitting special issues to the jury, in admitting various plaintiffs’ exhibits into evidence, and appellant makes other contentions.

In 1941, plaintiffs-appellees’ predecessors in title were involved in litigation over a tract of some 552.5 acres of land. Defendants in that suit were Hearl Williams (defendant-appellant in the suit at bar) and other named defendants. Agreed judgment was entered in that cause (cause No. 20,-469) in the District Court of Brazoria County, Texas, on March 1, 1941. Said judgment was introduced in evidence as plaintiffs’ exhibit 1 and plaintiffs’ exhibit 2 is a certified and recorded copy of the said same judgment. Such 1941 judgment awarded the plaintiffs therein all of the land involved except 175 acres off of the western side thereof. The 175 acre tract was awarded in said agreed judgment to Hearl Williams and other named defendants and this 175 acre tract is not involved in the present suit at bar. Of the 377Yz acres thus awarded to the plaintiffs in said 1941 judgment, 77^4 acres were thereafter conveyed to parties not involved in the present suit. The residue tract of 300 acres is the land here involved. It is uncontroverted that at the time of the said 1941 judgment the said appellant herein, Hearl Williams, was in possession of a small portion of such tract.

Upon the entry of the 1941 agreed judgment above referred to, the defendant Hearl Williams, having been in possession of a portion of the 300 acre tract and remaining so, became the permissive tenant or tenant at sufferance of the plaintiffs’ predecessors in title. Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794 (1955), affirming Park v. Sweeten, Tex.Civ.App., 270 S.W.2d 687 (1954); Green v. Vance, Tex.Civ.App., 311 S.W.2d 738 (1958), opinion approved in this respect by the Supreme Court in Green v. Vance, 158 Tex. 550, 314 S.W.2d 794 (1958).

By a regular chain of conveyances subsequent to the above referred to 1941 judgment, the plaintiffs-appellees in the suit at bar succeeded in interest and are the present record owners of the land involved herein. As such successors in interest they became in law, the landlord of Hearl Williams, their permissive tenant or tenant at: sufferance. Sweeten v. Park, supra and Green v. Vance, supra.

As a general rule (with certain exceptions hereinafter stated), a tenant is not permitted to dispute the title of his landlord. This is a rule of estoppel. In Tyler v. Davis, 61 Tex. 674 (1884) it is stated in part as follows:

“That, as a general rule, a tenant cannot dispute his landlord’s title, is well established and universally admitted, and neither citation of authority, nor discussion of the principle upon which it rests, is at all necessary; since it has been recognized at law for so great a length of time. It is applied as well in suits for rent as in those for the recovery of possession. In the action of ejectment it has always been held sufficient for a landlord who is suing his tenant to produce his lease, and that estoppel closes the mouth of the defendant to call his title in question. Jackson v. McLeod, 12 Johns. (N.Y.) 182. Our action of trespass to try title, whilst it abolishes the forms and fictions of ejectment, preserves most of its substantial principles, and this amongst others. Whilst the plaintiff must go hack to the government or to a common source in other cases, yet, as to one estopped to deny his title, it is enough that he establishes the facts upon which the estoppel is supported." Emphasis added.

There are exceptions to the general rule above stated, one of which is that a tenant of one who has no title may acquire the superior title and show title in himself in defense of a suit of trespass brought against him by his lessor. Another exception is that one who by mistake or through fraud is induced to become the tenant of another is not estopped to deny the title of his landlord. Richardson v. Houston Oil Co. of Texas, Tex.Civ.App., 176 S.W. 628, writ refused (1915). However none of the exceptions to the general rule are shown by the facts in the case at bar.

Under the facts in the case at bar the defendant-appellant Hearl Williams was a permissive tenant or tenant at sufferance of plaintiffs, he had no record title to the property in litigation, he acquired no superior title (if there was any), but wholly depended upon the 10 year Statute of Limitation for his claim. It is stated in Green v. Vance, 158 Tex. 550, 314 S.W.2d 794 (1958) that “ * * * the continued possession of land after the rendition of a judgment divesting the one in possession of title and vesting it in another is not adverse until notice of a hostile claim is brought to the prevailing party as required by law.”

One holding over after divesting himself of title to real property is considered to be a tenant at sufferance of the prevailing party, and his possession is presumed to be in subordination to the true owner and does not become adverse until notice of the hostile claim is brought home to the owner as required by law. Park v. Sweeten, supra. And where the occupier of land who has been a permissive tenant seeks to claim title by adverse possession, the burden is on him to show the repudiation of the permissive tenancy. Park v. Sweeten, supra.

In answer to special issue No. 3 the jury found that the defendant-appellant Hearl Williams did not have adverse possession of the land in question for any period of 10 consecutive years from 1943 to 1956. The defendant-appellant thus failed to sustain the burden cast upon him to prove his limitation title and he attempted to show no other character of title. We have carefully examined the Statement of Facts and find that the evidence certainly does not establish a limitation title as a matter of law for defendant-appellant but instead the evidence is amply sufficient to support a conclusion to the contrary. The trial court correctly overruled defendant’s motion for instructed verdict and correctly submitted the special issues to the jury. Appellant’s 9th and 12th points are overruled.

The trial court did not err in admitting into evidence plaintiffs’ exhibits 1 and 2 (original and recorded copy of the 1941 judgment.) Also the abstract of title filed by appellees covering from the 1941 judgment to title in them was sufficient to show a prima facie title in them which their permissive tenant, the defendant-appellant, was estopped to successfully dispute under the record in this case as hereinbefore shown. Appellant’s various contentions under his 2nd point are overruled.

Appellant by his first point contends that “the court erred in rendering judgment on the jury verdict as the answers to the special issues Nos. 2 and 3 were in irreconcilable conflict.” The special issues and the answers thereto have been heretofore set out. Defendant-appellant testified that in 1943 he told plaintiff Martin that he was claiming the land in question as his own. Mr. Martin testified that this was not true. The jury evidently believed Mr. Martin’s testimony in this respect and rejected that of defendant-appellant in this respect for, in answer to special issue No. 1, the jury found that the defendant-appellant did not, in 1943, give oral notice to Mr. Martin that he was repudiating his tenancy and claiming the land in question as his own. In answer to issue No. 2 the jury merely found to the effect that the defendant had adverse possession of the land at some time during the period mentioned and that it was sufficient to presume that plaintiffs had notice. However, the issue did not inquire, and the jury necessarily could not answer, as to when the defendant had or began such adverse possession. In answer to Issue No. 3, the jury found to the effect that the defendant did not have adverse possession for any period of ten consecutive years within the period stated in the issue.

It is our view that the answers of the jury to issues 2 and 3 are in harmony, and can lead only to the conclusion that the jury found the defendant’s adverse possession began at some time less than ten years prior to August 27th, 19S6.

In Angelina County Lumber Company v. Reinhardt et ux., Tex.Civ.App., 285 S.W.2d 446, wr. ref., n. r. e. (1956), a somewhat similar situation was involved. There, as in the case at bar, a tenancy relationship existed and the tenants sought to claim the land by adverse possession. In that case, the tenant plaintiffs, to show repudiation, had some testimony to the effect that they had cut and removed timber in October, 1932, and that defendant’s agent had knowledge of the same at that time. In answer to special issues, the jury found: (1) That Plaintiffs repudiated their status as tenants. (2) That they did so in October of 1932. (3) That such repudiation was made known to the owner of the land. (4) That this occurred in October of 1936. (5) That plaintiffs “had exclusive, peaceable and adverse possession of the land” for ten consecutive years between November 11, 1918, and January 1, 1946. (6) That “such adverse possession” commenced in October, 1932, and continued to January, 1946.

In the jury verdict in the Angelina County Lumber Company v. Reinhardt case above referred to, it was found that “adverse possession” had begun in October, 1932, but that notice of repudiation had not been given until October, 1936. Of course, as held in Park v. Sweeten, supra, for a permissive tenant to start the Statute of Limitation running he must repudiate the tenancy and give notice or presumption of notice to the owner. In resolving the question as to alleged conflict in the jury findings, the court in Angelina County Lumber Company v. Reinhardt, supra (285 S.W.2d 446), at p. 452, stated:

“The issues must be construed together and in the light of the record as a whole; and when they are so construed, we think the supposed conflict is more apparent than real. The jury was not instructed as to the meaning of repudiation, and was not told that there could be no repudiation or adverse claim without notice. Furthermore, whether rightly so or not, the charge of the court, to which no objection was urged, treated repudiation and notice of repudiation as two distinct elements, and we think the jury was authorized to so consider them. From the jury’s viewpoint, therefore, there could have been no inconsistency between their conclusion that the cutting and removal of the timber amounted in law to an act of repudiation and their finding that knowledge of such act was not visited on the owner of the land until four years later. We are further of the opinion that from the jury’s viewpoint there was no inconsistency between their finding that plaintiffs’ possession became adverse in October of 1932 and their finding that notice of repudiation of the tenancy relationship was not given until four years later. They evidently attached significance to the timber cutting, but they had not been instructed that notice of repudiation was a prerequisite to plaintiffs’ possession becoming adverse; and their finding of adverse possession was otherwise consistent with the evidence and the court’s charge. We are of the opinion, therefore, that when the findings are appraised in the light of the manner in which the case was submitted to the jury and in the light of the record as a whole they are not in irreconcilable conflict.”

We are of the opinion, that when the findings of the jury are appraised in the light of the manner in which the ease was submitted to the jury and the light of the record as a whole, the answers of the jury to special issues 2 and 3 are not in irreconcilable conflict. Appellant’s first point is overruled.

We also hold that plaintiffs-appellees sufficiently proved up their title by introducing in evidence the 1941 agreed judgment in question and the chain of subsequent conveyances to them by their predecessors in title, as shown by the record, and that appellant as permissive or tenant at sufferance of appellees, by virtue of the 1941 agreed judgment, was estopped to contend that his landlord, appellees herein did not have title. Also the appellant failed to show any record title or superior title from any source, relied on a claim of limitation title alone, and under the record in this case failed to sustain the burden of proving a limitation title. Appellant’s various contentions raising these questions are overruled.

Appellant’s remaining points and contentions have been carefully considered, none of them are deemed as presenting reversible error, and the same are overruled.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Johnny CLAUNCH, Appellant, v. Benny BENNETT, by and through his next friend, Louis Ray Bennett, Appellee.
    No. 7515.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 20, 1965.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Gordon, Gordon & Buzzard, Pampa, Cui-ten, Morgan, Britain & White, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal by Johnny Claunch from a judgment based upon a jury verdict for Benny Bennett, a minor, by and through his next friend, Louis Ray Bennett, in which both ordinary and exemplary damages were awarded as a result of an automobile collision between the automobiles being driven by Claunch and Benny Bennett.

Johnny Claunch, with leave of the court, sought contribution and indemnity from John T. House, the driver of a third automobile Claunch collided with prior to the collision with appellee, Bennett.

Summary judgment was granted in favor of House for the reason that he had there-tofor obtained a written release from Claunch.

Contention is made by appellant Claunch that the release is limited to only personal injuries or property damage incurred by him and does not release House for any suits for contribution or indemnity arising out of third party claims. We do not agree.

The release is very broad in scope and is titled, “Release of All Claims.” The instrument is included on the last page in verbatim form of Mr. House’s brief. It provides in part that John T. House is released “ * * * from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever which the undersigned has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event.” Then typed in at the bottom of the release was a provision that: “This instrument does not release any subrogation claim with my collision carrier.” A study of the release from its four corners convinces us that both the wording of the instrument and the intention of the parties shows a release by Johnny Claunch of all claims of any nature whatsoever which the latter might then have or which, might accrue thereafter against Mr. House, including any cause he might have for contribution or indemnity.

We hold the summary judgment for John T. House was properly granted.

The other seven points of error complain of the trial court’s action in entering judgment for appellee for the reasons that there was no evidence, or alternatively, insufficient evidence, to support a finding of gross negligence in the sum of $1,000; that a judgment of $5,000 actual damages was against the great weight and preponderance of the evidence and that counsel for ap-pellee committed reversible error in his jury argument. The points are all argued together and we shall attempt to so discuss them.

Appellant’s principal contention that gross negligence was not raised is based upon his theory that the speed race he entered into with a second party within the city limits of Pampa upon a busy street, which was also Highway 70, was without premeditation; was purely upon the spur of the moment ; took place within a matter of a few seconds; and the sole act of negligence committed by him was excessive speed.

Appellant shows from the record to have been shortly under thirty years of age at the time of the collision and divorced. He had been to the Coronado Inn in Pampa during the evening and just before the collision had picked up Donna Hyland, wlm maintained a room there, and a fellow by the name of Glenn, whom he invited to go to the bowling alley with them. Though not intoxicated, he had partaken of a mixed drink at his evening meal and later a beer by his own admission. The record does not show when he finished his evening meal nor what period had elapsed from the time he drank the beer until the collision, which Claunch testified occurred “ * * * between ten and eleven, nine and eleven, somewhere in that vicinity.” He was driving a comparatively new Sports Fury Plymouth capable of high speed * * * that Plymouth would run between 90 and 100 in a quarter of a mile.”

After leaving the Coronado Inn he stopped at a stop sign at the intersection of Hobart and Frederic Streets, then turned onto Hobart, which is also Highway 70. At this time an acquaintance pulled up beside him and the two men engaged in a •race with their machines. During the race John T. House backed his car out onto Hobart Street from his private driveway approximately one-half of a mile away from where the race began. Claunch noticed the House car backing out but continued his excessive speed until it backed into his lane, the left lane going south on a four-lane street and highway. At the time he saw Mr. House backing out he had reached his maximum speed but kept speeding until Mr. House backed into his lane.

At approximately the same time appellee, Benny Bennett, then a sixteen-year old high school boy, had turned off McCullough Street onto Hobart after taking his girl friend home and was driving on his proper side of the highway between twenty and twenty-five miles per hour. He testified after about a block “ * * * all of a sudden it (the Claunch car) was upon me; I didn’t know what to do or nothing; I don’t remember what I did. The next thing I remember I was home in bed. That is when I woke up the next morning.” All parenthetical statements herein are ours.

The ambulance had taken Benny to the hospital but according to his treating physician he was under shock. The doctor had given him treatment and let his mother take him home.

Claunch was not present at the trial but testified by deposition that his car “ * * * would run between 90 and 100 in a quarter of a mile.” He also testified that if he didn’t reach 90, it was because he didn’t travel enough space.

The investigating police officer’s estimate of the distance travelled from the intersection of Frederic and Hobart was one-half mile before the collision. Therefore, we believe under the record we would have to assume he reached approximately his maximum potential speed, which would have been more than 90 miles per hour because Claunch testified “ * * * that Plymouth would run between 90 and 100 in a quarter of a mile,” and that when the race started “ * * * I stomped mine.” The competing car gave up in about a block and a half but even after it pulled off to the right Claunch continued to accelerate. “I’d say I was still accelerating.”

A considerable amount of law concerning gross negligence has been written in this state in cases involving the Guest Statute, Article 6701b, V.T.C.S. In some of these cases language has been used indicating that negligent acts relied on to constitute gross negligence must show a continuous course of action to constitute gross negligence.

It is from some of this language that appellant seeks relief from the gross negligence judgment against him, on the theory that the act of speeding which caused the collision was a spontaneous short-time burst of speed which did not represent a deliberate course of action. It is true that in Rogers v. Blake, supra, and in Adams v. McHam, supra, those opinions in quoting from other cases said: “[T]here must be something in the nature of a continued or persistent course of action.” However, the court in Rogers v. Blake said “* * * [T]he law is that there must be a ‘heedlessness and reckless disregard of the rights of others’, which a conscious failure to stop, standing alone, does not show.”

Justice Garwood in dissenting from the majority in the case just discussed stated:

“Now it is difficult for me to conceive of anything more ‘persistent’ than the act of a driver who approaches a thoroughfare guarded by stop signs, knowing it in advance to be so guarded, and then (as there was ample reason to believe) deliberately crosses without stopping at such speed that the resulting collision with a car on the thoroughfare violently throws his three guests out of his closed car, as well as throwing one passenger out of the other closed car. If that is not ‘persistent’, then it is also not persistent deliberately to aim a pistol at another and pull the trigger. But be that as it may, we have never clearly held and should not hold it to be a necessary condition of gross negligence, that at some time or other prior to the accident the defendant must have been doing the same kind of negligent acts that caused the collision — or perhaps similar kinds of negligent acts.”
“A single act of deliberate misconduct might well come within the phrase "something in the nature of a continued or persistent course of action’ and is clearly distinguishable from inadvertence, which means the absence of intent.”

A more recent case by our Supreme Court since Rogers v. Blake would seem to foreclose appellant’s contention against him under the facts of the instant case even if he could find comfort in the case just mentioned. That case is Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820. Here both the trial court and Court of Civil Appeals held gross negligence did not exist, apparently because the gross conduct was not of sufficient duration. The Supreme Court reversed and rendered.

In refuting the “continuous course of action” theory before one could be found to have been guilty of gross negligence the court in Fancher v. Cadwell, said:

“Apparently it was the trial court’s theory that gross negligence, which was found by the jury to exist, cannot be the basis for the recovery of damages for the reason that the evidence fails to go further and show that the gross conduct was of sufficient duration from the standpoint of time. The findings and conclusions specifically referred to herein seem to indicate that this matter of only a few minutes time elapsing between the moment of petitioner’s entry into respondent’s automobile and the time of the collision was the determining factor in the trial court’s mind in entering the judgment non obstante veredicto. The judgment of the Court of Civil Appeals affirming that of the trial court has for its basis the conclusion as was reached in Rogers v. Blake, supra, that the acts which the jury found as being gross negligence were mere acts of inadvertence and of mistaken judgment, and that there were no facts or circumstances which would justify the inference that the respondent’s conduct was grossly negligent. With this conclusion we cannot agree. * * * the courts have been primarily concerned with the quality or kind of conduct established by the evidence in each given case and have adhered to the rule that whether conduct is so far negligent or wanton, reckless or willfully improper as to render one liable under-the guest statute depends upon the combination of circumstances present at the particular time and place. In none of the decisions has it been held that the period of time during ivhich negligent conduct existed was the sole criterion for gross negligence (Emphases ours.)

These quotes from Fancher v. Cadwell, supra, some of the latest supreme judicial expressions in Texas, appear to us to convict appellant from the facts in this case.

The reason for the spontaneity of the extremely excessive speed ceased when the adversary speeding driver abandoned the race. Yet, Claunch admitted: “I’d say I was still accelerating.”

Being a resident of Pampa he would have to have been conscious of the fact that he was speeding on not only a state highway but on an extensively travelled city street which the testimony shows was intersected by many other city streets and along an area where residences existed from which automobiles would have backed out of their driveways. Since he testified the sports car would run “ * * * between 90 and 100” in a quarter of a mile; that he “stomped” (his accelerator) ; that if he did not reach 90 miles per hour it was because he didn’t travel enough space; and since the record shows he travelled approximately one-half mile, still accelerating while he saw a car backing out of a driveway down the street he was travelling until the car had backed into his lane of traffic without using his brakes until he was 105 feet from such car, it is difficult for us to conceive of a more conscious indifference to the rights or welfare of the persons to be affected by such acts.

When he did finally apply his brakes he was travelling at such speed his car started to spin; collided with the House car; went into a skid down the wrong side of the road and continued to skid for 53 additional feet before striking the Bennett car. Even then the car was still skidding so out of control from the excessive speed that Claunch testified he would have turned over had he not struck appellee’s car.

We believe that the inference properly to be drawn “from what the actor (Claunch) did and the physical facts that existed at the time and that contributed to the accident” must be found to have constituted gross negligence, which was defined by the court to be “ * * * that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it.” Fancher v. Cadwell, supra.

Since we are of the firm conviction that the conduct of appellant constituted gross negligence, the jury argument in connection therewith does not in our opinion show reversible error.

In connection with submitted issues on gross negligence, the court told the jury they might in their discretion award, in addition to any actual damages they might have found, an amount which they might decide as a matter of punishment and as an example to others. The argument of counsel complained about was not improper, therefore, in telling the jury, in effect, that exemplary damages could be awarded as a matter of punishment and as an example to others. Our Supreme Court has said that such type damages are “ * * * punishment for the gross negligence alleged as the basis of the suit.” Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709. In any event, under Rule 434, V.A.T.R., such argument was harmless error.

The next contention urged by appellant is that an award of $5,000 actual damages was excessive.

The medical testimony shows Benny Bennett had discomfort of the left knee following the collision, with considerable swelling, and apparently fluid in the joint. He was on crutches for several weeks and his knee was later diagnosed by Dr. Elias Margo of Oklahoma City, whom the testimony shows was a highly trained specialist in the field of orthopedic surgery and an author of several books on the subject. He stated: “My impression was that this young man had an internal derangement of the left knee involving the medial meniscus and a tear in the capsule of the joint.” The condition would require surgery to correct and he still would have some degree of weakness. The cost estimated by the doctor would be from $350 to $450 for surgery and hospitalization. The doctor stated that occasionally, on getting inside the knee with surgery, it is discovered that there is damage to the lateral ligaments and that if such should be found in Benny’s knee there would be greater disability.

Benny was not a good student, his time out of school due to the collision caused him to get so far behind with his school work that he quit school and the record indicates he is one of the unfortunate school “dropouts.” At the time of trial he had been working in a filling station and his testimony shows that even while walking his knee would have a popping or locking sensation at times with a resulting sharp pain as if * * * Here’s a bone and there’s another bone just popping off the end of it.”

In determining whether an award of damages by a jury is excessive, we believe each case must stand on its own facts and that the same loss occurring to different individuals obviously differ in effect as to the amount of damages, dependent upon each individual’s mental aptitude and the effect his injuries would probably have upon his future earning capacity.

A study of this case does not, in our opinion, indicate any passion or prejudice on the part of the jury in awarding $5,000 actual damages for this boy with a life expectancy of 48.44 years when we consider, as we must from the record, he is destined to earn his living by physical effort, which the jury could and probably did believe would be impaired by his knee injury.

The case appears to have been fairly and properly tried as to all parties and the judgment is accordingly affirmed.

      . Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022 (Com.App. opinion adopted); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Kirkpatrick v. Neal, Tex.Civ.App., 153 S.W.2d 519 (writ refused); Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520; Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001.

      . Rogers v. Blake, supra; Adams v. McHam, Tex.Civ.App., 310 S.W.2d 145 (N.R.E.).


author: PER CURIAM.

text:
    Ronald SHARP, Relator, v. Honorable Charles L. REYNOLDS, District Judge, et al., Respondents.
    No. 7545.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 20, 1965.
    Culton, Morgan, Britain & White, Amarillo, for relator.
    Paul Spillman, Wellington, for respondents.
   PER CURIAM.

This is a mandamus suit in which Ronald Sharp, Relator, seeks to compel Honorable Charles L. Reynolds, District Judge of the 100th District Court of Collingsworth County, to enter judgment for the Relator. The facts in this case are set out in an agreed statement as follows:

“Some three hours after the jury was retired to consider of its verdict, the court received a request from the jury, asking if they could have made available the pertinent testimony concerning the signal lights. The court instructed the jury that if the jury was in dispute regarding some portion of a witness’s testimony and would certify that fact in writing over the signature of the foreman and point out the portion of the testimony in dispute, such portion of the testimony would be read to the jury, but approximately forty-five minutes later the foreman of the jury sent a note to the court stating that the jury was unable to agree on an unanimous verdict.
■ “After reading the jury’s note to counsel, the court advised counsel that the court proposed to bring the jury into the courtroom, inquire if the jury felt if it were recessed until the following morning a unanimous verdict could be reached after further deliberation, and, if the jury so indicated it might, the jury would be recessed, but if the court was convinced the jury could not reach a unanimous verdict, the court proposed to ask the foreman whether any special issues had been answered and, if so, direct the foreman to sign the verdict, which would be accepted by the court, and the court would enter whatever judgment the verdict would support.
“Whereupon, the counsel for plaintiff stated he felt the jury should be discharged and a mistrial declared, and counsel for defendant stated he could not agree to the court’s proposal to accept a partial verdict, because in view of the jury’s request for the testimony concerning the signal lights, it was apparent the jury had not answered the special issues pertaining thereto, and such issues were the very crux of the defense. Counsel for defendant asked for time to confer with a third party, which was granted, and after the conference, stated to the court that he could not agree to the court’s proposal to accept a partial verdict, but would abide by the ruling of the court. Counsel for the plaintiff then moved the court to discharge the jury and declare a mistrial. Counsel for the defendant then moved the court to give the jury the ‘third degree’ instructions and send them back either that night or the following day. The court remarked to the counsel for both parties that since this was their lawsuit, the court would follow their wishes and declare a mistrial if the court was satisfied the jury could not reach a unanimous verdict.
“No protest was made to the court’s decision, and thereupon, the jury was returned to the courtroom. The court advised the jury the court had received the note advising the jury was unable to reach a unanimous verdict, and inquired of the foreman if he felt the jury could reach a verdict after further deliberation. The foreman replied, ‘No, sir’. The court then asked the foreman if the jury was recessed until the following morning and then reconvened for further deliberation did he feel the jury could reach a unanimous verdict. The foreman again replied, ‘No, sir’. The court then asked each of the remaining eleven members of the jury the same question and each replied in the negative. Thereupon the court discharged the jury. At no time did the court inquire as to whether any questions had been answered by the jury as submitted in the form of special issues.
“As the jury was leaving the jury box, the foreman handed the charge of the court to the bailiff, who gave it to the court. After the jury left the courtroom, the court looked at the charge and made known to both counsel that the jury had apparently answered some of the special issues because some answers were written in the blanks following some special issues. These answers indicated the plaintiff was guilty of contributory negligence. Neither the signature of the foreman nor any other member of the jury appears on the instrument,
“The court noted the docket sheet to the effect that the jury was unable to agree on a verdict, the jury was discharged, and a mistrial declared.”

After learning some of the questions showed to have been answered that the plaintiff was negligent and was a proximate cause of the accident, the defendant filed his motion for judgment but the motion was denied by the trial court. In connection with his motion for judgment defendant placed one of the jurymen on the witness stand and asked him if it was his testimony that the jury unanimously agreed that the plaintiff failed to keep a proper lookout. The juror answered, “To the best of my knowledge, yes, sir.” As to proximate cause the juror was asked, “Do you recall what the unanimous decision of the jury was in response to that question, if any?” The juror answered, “I believe it was answered as, it was.”

We do not believe under this record any verdict was ever received. The parties did not agree to accept a partial verdict. The defendant refused to accept a partial verdict. The court asked each of the members of the jury if they felt the jury could reach a unanimous verdict and they all said they could not. Thereupon the court discharged the jury and declared a mistrial. The court noted the docket sheet to the effect that the jury was unable to agree on a verdict and the jury was discharged and a mistrial .declared. The verdict was never signed by the foreman nor any of the jurymen. As the jury was leaving the jury box after they had been discharged, the foreman handed the charge to the court bailiff. The jurymen were not interrogated by the court to determine if the answers given were their verdict. It is stated in Wheeler v. Oxford, Tex.Civ.App., 321 S.W.2d 188, as follows:

“If this jury had been interrogated about the answers to the special issues and one of their number had dissented, the judge could not have accepted the verdict and rendered a judgment there-
on. It is the right of a party to have the jury interrogated by the court to determine, not whether it was their verdict when they were in the jury room deliberating, but whether it is their verdict and the verdict of all of them when it is published by them in open court. ‘Ordinarily a verdict must be affirmed by the jury in open court and their finding is not a verdict until so affirmed.’ 89 C.J.S. Trial § 487, p. 144. ‘The rule of law is well established that a verdict is of no force and effect unless it is affirmed by the jury in open court.’ Bryan v. Manchester, 111 Neb. 748, 197 N.W. 425, 426. The relator relies upon Barker v. Weingarten Riverside Co., Tex.Civ.App., 232 S.W.2d 692, as his principal authority in support of his application for mandamus. The Barker case is clearly distinguishable from the present case in that the facts in the Barker case show that the members of the jury were in complete agreement as to the answers which they had made and so stated to the court in the court room.
“If this court compelled the district judge to enter judgment for the relator upon this ‘verdict’, it would be depriving the plaintiff of the right to poll the jury. Watchtower Mut. Life Ins. Co. v. Davis, Tex.Civ.App., 99 S.W.2d 693.
“A writ of mandamus will not lie to control judicial or discretionary actions. First National Bank of Rule v. Chapman, Tex.Civ.App., 255 S.W. 887; Houston Fire & Cas. Ins. Co. v. Gerhardt, Tex.Civ.App., 281 S.W.2d 176. It has not been conclusively established that the verdict was unanimously agreed upon by the jury.”

See also Lee v. Galbreath, Tex.Civ.App., 234 S.W.2d 91; De Busk v. Cadenhead, Tex.Civ.App., 346 S.W.2d 145 (N.R.E.).

It is stated in State v. Finch, Tex.Civ.App., 349 S.W.2d 780 as follows:

“Rule 294, T.R.C.P., declares that either party shall have the right to have the jury polled. It prescribes the method for the poll and states the question which the judge must ask. That question is the simple one: ‘Is this your verdict?’ When the court propounded that question to Mrs. Stannus, she responded that it was her verdict. The question is clear and simple, and is easily understood by any person qualified to serve on a jury. It is capable of an affirmative or negative answer, and that is all the judge needs to determine. Rule 294 does not authorize a poll to determine whether a juror is hesitant or enthusiastic about the verdict. The question seeks to determine whether the verdict is the juror’s at the time the court asks the question. Wheeler v. Oxford, Tex.Civ.App., 321 S.W.2d 188; Wells v. Lone Star S. S. Co,, Tex.Civ.App., 1 S.W.2d 925; Leverett v. St. Louis, S. F. & T. R. Co., Tex.Civ.App., 266 S.W. 589; 71 A.L.R.2d 643. At that time, and up to the time the court announced that it received the verdict, any juror may withdraw his verdict. Republic Ins. Co. v. Hale, Tex.Com.App., 128 Tex. 616, 99 S.W.2d 989; Lee v. Galbreath, Tex.Civ.App., 234 S.W.2d 91.”

In this case at bar the jury had in open court informed the court they could not agree and so stated that they could not agree and were discharged without the court having received any verdict of any kind or knowing that any of the issues had been answered’. Neither the plaintiff nor the defendant requested the court to permit them to ask the jurors any questions but sat silently and permitted the court to discharge the jury. The Relator’s application for writ of mandamus is refused.


author: RUARK, Presiding Judge.

text:
    Henry J. KELLER, Administrator With Will Annexed of the Estate of Mary J. Smith, Deceased, Plaintiff-Respondent, v. Nell M. COLLISON, Defendant-Appellant, and The Southern Missouri Trust Company, a Corporation, Defendant.
    No. 8449.
    Springfield Court of Appeals. Missouri.
    Oct. 20, 1965.

      Edmund C. Forehand, Horace S. Hasel-tine, Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for defendant-appellant.
    Richard Farrington, Farrington & Curtis, Springfield, for plaintiff-respondent.
    Glenn A. Burkart, Mann, Walter, Powell, Burkart & Weathers, Springfield, for defendant Southern Mo. Trust Co.
   RUARK, Presiding Judge.

This is a suit by Keller, (public) administrator of the estate of Mary J. Smith, deceased, against Nell M. Collison, the principal defendant, and the Southern Missouri Trust Company, a technical defendant, in which the plaintiff sought to determine title to certain bank accounts, an injunction against withdrawal of certain accounts, an accounting, and such other and further relief as the court should deem meet and proper. Defendant Collison has appealed from an adverse judgment.

The petition charged that deceased, Mary J. Smith, was the sole owner of a savings account of the value and amount of $10,-123.85 and a checking account of $371.75; that on December 15, 1961, such accounts were transferred so as to make them held jointly and as surviving tenant with defendant Collison. That the accounts were transferred merely for convenience so that withdrawals could be made as necessity and circumstances might require “relative to the condition of Mary J. Smith”; that Mrs. Smith never intended to create an account with the right of survivorship; that Mrs. Smith was physically incapable of taking care of her affairs and that Collison “looked after Mrs. Smith,” took her places, paid her bills, ran her errands, and that a confidential relationship existed between Collison and Smith. A temporary injunction was prayed and issued to prevent withdrawals from the accounts.

Defendant Collison’s answer asserted that she was a practical nurse, that she had cared for Mrs. Smith on prior occasions; that on December 7, 1961, Mrs. Collison began stopping at Mrs. Smith’s apartment to assist her and do necessary tasks which Mrs. Smith was unable to do; that on December 26, 1961, defendant arranged for Mrs. Smith to enter a rest home where she was thereafter in the exclusive care and control of other persons; that on December 15, 1961, (the day the accounts were transferred) Mrs. Smith was mentally alert and capable of handling her own affairs but was physically weak; that the transfer of the two accounts was a free and voluntary act of Mrs. Smith without action or influence of defendant, but that Mrs. Smith did place confidence in defendant because of the aid and assistance which she had rendered. The answer denied all else in respect to the transfers. It did not specifically claim that the transfers were for a consideration or by way of gift.

The case was tried on June 8, 1964, and taken under advisement. On October 1, 1964, plaintiff was permitted to amend his petition to conform to proof so as to charge in substance that there was no consideration for the transfer of the funds from sole account to joint; that such transfer was made by way of gift and by reason of the relationship of trust and confidence and as a result of undue influence and control exercised by Collison and was “void and presumptively void.” So far as the record shows there was no objection to this amendment and no request for continuance or opportunity to offer further evidence on the part of defendants; nor does the appellant contend she had no notice of such amendment. On October 19,1964, judgment was given for plaintiff and, after unsuccessful after-trial motion, defendant has appealed.

Mary J. Smith was seventy-three years old at the time of her death. She was a childless widow. The record does not show when the husband died, but we gather from scraps of testimony that it had been within less than five years before. Her nearest kin were two nieces, who did not live in the community and with whom she apparently had little contact. She was obviously frail, suffering from arthritis with pain in her knees, and had difficulty in getting around. Because of this difficulty she had (September 1960) transferred her bank accounts from a bank uptown to another bank which had a branch within a short distance of her apartment. There is no contention that Mrs. Smith was not mentally capable and alert, but the evidence does indicate that she was burdened with her age and frailities and was somewhat dependent upon others. In the last few months of her life she was, on some occasions, forgetful to the extent that she would repeat herself. Her sole assets consisted of a savings account in the approximate principal amount of $10,123.85, a checking account in the approximate sum of $371.75, and a small amount of personal effects.

Plaintiff's witness, Mrs. Gillespie, said she had been a neighbor acquaintance-friend of Mrs. Smith since 1956. She saw her sometimes once a week, sometimes every two or three weeks, but they talked on the phone more often than that. She had assisted Mrs. Smith on various matters, including the transfer of funds from one bank to another; and on at least one occasion she had gone to the drugstore in the night to get medicine for Mrs. Smith. Mrs. Smith had discussed funeral arrangements with her, and indicated that she was dissatisfied with the service which had been conducted for her late husband. Mrs. Gillespie suggested that she call a Mr. Loh-meyer (another funeral director) and have him come out and make arrangements in advance with him concerning her own funeral. Mrs. Smith also talked to her about making a will, and Mrs. Gillespie assisted her in this by calling “an attorney or two” and finally made an appointment to go with her to an attorney’s office. At the appointed time, however, Mrs. Gillespie was unable to go, and Mrs. Smith went by cab. From her testimony, and that of others, it is not difficult to surmise that Mrs. Smith was conscious of her infirmities and the inevitability of her death in the not too distant future.

Another friend of Mrs. Smith was the defendant-appellant, Mrs. Collison, who worked for a living as a practical nurse. She worked, at least part-time (probably in the mornings), for a local hospital. Their acquaintanceship had begun some five or six years prior to the events with which we are now concerned, when at a market Mrs. Smith appealed to Mrs. Collison and her two young sons to carry some groceries for her. After that, Mrs. Collison did various things for Mrs. Smith. Plaintiff’s witness Mrs. Gillespie, who cannot be considered as friendly to defendant, testified that she knew that Mrs. Collison “came by occasionally” and took her (Mrs. Smith) to pick up groceries and “different things.” She, Mrs. Gillespie, did not know Mrs. Col-lison personally, but Mrs. Smith would comment to her that Mrs. Collison had taken care of Judge Gideon before he passed away, “and she was commenting that Mrs. Collison wanted to take care of her because she was working to the Baptist Hospital and she could give her shots and take care of her as good as a doctor, and there was no use in having a doctor.” The record does not establish when this conversation took place; and there is a dearth of direct evidence as to just what Mrs. Col-lison did for Mrs. Smith prior to December 7, 1961. There is evidence that for a considerable period of time prior to Mrs. Smith’s fall and injury (to be hereinafter mentioned), Mrs. Collison was at the Smith apartment “almost every week,” and her son testified that he himself sometimes ran errands for her, such as carrying groceries, taking soiled clothes to the laundromat, and cleaning up the apartment when the Smiths moved (this must have been while Mr. Smith was yet alive). For these errands and odd jobs he was paid in “small change.” This is as nearly as we can present the situation prior to the matters here involved. A chronological statement of events follows.

Sometime after Mrs. Gillespie had suggested that Mrs. Smith should see Loh-meyer, the undertaker, Mrs. Smith, accompanied by Mrs. Collison, went to see Loh-meyer about arranging her funeral. Loh-meyer was a friend of Collison, “having been in her family four or five times.” Mrs. Smith informed Lohmeyer that she was not satisfied with the service which had been given at her husband’s death and expressed a preference for a private funeral or burial service, with no display. No contract was entered into at that time; but later, on July 14, 1961, Mrs. Smith returned. There is no evidence that Mrs. Collison or any other person accompanied her at that time. She then and there entered into a written contract providing for a “private service” to cost $885.25. Lohmeyer said that Mrs. Smith told him that Mrs. Collison was about her only friend. He also said that at this time Mrs. Smith was mentally alert, but she was frail and had arthritis.

On November 2, 1961, Mrs. Smith went to the office of the attorney whom she had discussed with Mrs. Gillespie and had drawn, and executed, her last will and testament. By this will, Mrs. Smith cut off her two nieces, her nearest kin, with a bequest of one dollar each, and the entire estate was bequeathed to two young men, apparently not of kin and not otherwise mentioned in the evidence. In this will she requested that Mrs. Collison be appointed executrix.

On December 7, 1961, Mrs. Smith fell and injured herself. The injury was apparently to her back. There seems to be no question that, after this occurrence, Mrs. Smith was in need of care and that Mrs. Collison was at the Smith apartment for a portion of every day. The undisputed evidence was she got (at least) some meals, and cared for her generally. Her son accompanied her on some of these occasions. Plaintiff’s witness, Mrs. Gillespie, testified that during this period she went to the Smith apartment, knocked, got no response and found the door locked. She phoned the Smith apartment and “a party” answering told her, “Well, she [Mrs. Smith] wasn’t supposed to have any company.”

On December 12, 1961, a letter was written to the attorney who had prepared and had apparently retained possession of the will of Mrs. Smith, which had been executed on the previous November 2, 196L This letter stated:

“This is to notify you on November 2nd, 1961, you made my last will and testament of which I am hereby revoking this said will or any codicils that are on file.
“I request you to send me the will that you have on file.”

This writing of the actual body of the letter was done by Mrs. Collison, as she readily stated to witness Woodruff (see hereafter), but it was signed in ink by Mary J. Smith herself. It is not for this court, on the issues here involved, to decide whether or not this constituted a revocation of that will.

On December 15, 1961, Mrs. Collison went to the branch office of the bank and told the teller that Mrs. Smith was indisposed and wanted to make her accounts joint; that she had asked her (Mrs. Colli-son) to bring her the necessary signature cards. Mrs. Collison took the blank cards necessary to accomplish this purpose and returned the same afternoon with them properly signed showing transfer to Mrs. Smith and Mrs. Collison, joint and survivor. Both of those cards contained (on the back) the fine print “Depositor’s Contract” customarily used by banks in such instances.

On December 26, 1961, Mrs. Smith was admitted to Mercy Villa, a rest home and hospital for the elderly. Mrs. Collison took her there and made arrangements for her entrance. She, Mrs. Collison, gave her name as “responsible party.” She gave her address and phone number with the notation “call afternoon.” No other friends or relatives were named. The nurse testified that Mrs. Collison directed that Mrs. Smith should have no visitors, although we do not find that direction on the hospital record. The doctor’s findings of December 27, 1961, listed Mrs. Smith’s mentality as “generally fair but-[an abbreviation we cannot decipher] confused at times.” One knee was larger than the other, and there was a foot drop. Tentative diagnosis was “Old C.V.A. and arteriosclerosis.” The nurses’ record shows that Mrs. Smith was complaining of back pain and that she was unable to feed herself. Continued records show that, until January 5, 1962, when she died, medicines were given for pain. The patient was frequently nauseated and vomiting. From December 28, 1961, to January 2, 1962, she was conscious and most cooperative. Afterwards she was usually lethargic or in deep sleep, although during a period on January 3, 1962, she was awake and “more alert” and said she felt fine. Mrs. Gillespie testified that she went to see Mrs. Smith at the hospital once, and she “had her back turned to us and she was just laying in bed there.” A woman with her informed Mrs. Gillespie that Mrs. Smith could not have visitors.

Graveside services were held for Mrs. Smith. Present were the minister, the pallbearers, Mrs. Collison and her son, and a Mr. and Mrs. Holland. No one else appeared, and no one was turned away. Mrs. Gillespie testified she called Mrs. Collison about it and Mrs. Collison told her it was a private funeral and just she and the undertaker were supposed to be there. Mrs. Gillespie may have been incensed about this. She said she was coming anyway; but she did not go because of the weather. She called a Mr. Stinson in Kansas City.

Principal witness for plaintiff-respondent was a Mr. Woodruff, county juvenile officer and an attorney for the plaintiff. In the month of February, 1962, at the request of a niece (of Mrs. Smith) in Kansas City, he made an investigation. He, in company with another attorney, and Mr. Keller, the public administrator, went to Mrs. Colli-son’s home and talked with Mrs. Collison for an hour or so. She seems to have talked freely, frankly, and willingly. She told the inquiring gentlemen that, at Mrs. Smith’s request, she had procured and returned the cards effecting the transfer of the accounts as we have heretofore related. He said that Mrs. Collison spoke warmly of her relationship with Mrs. Smith; she was her confidant, looked after her, did her business and paid her bills. He testified that she (Mrs. Collison) repeatedly said Mrs. Smith could not trust other people but did trust her, and had confidence in her, and she advised Mrs. Smith; that after Mrs. Smith entered Mercy Villa she cleaned Mrs. Smith’s apartment, to which she had a key, disposed of things, and closed the apartment. She pointed out a television set and a rocking chair in her home which had been the property of Mrs. Smith. He said Mrs. Collison explained that Mrs. Smith wanted her to have the television set. He did not recall any mention of the chair. She readily produced and gave to the gentlemen the will which had evidently been returned by the lawyer in response to the letter we have heretofore mentioned. The will which Mrs. Collison produced and gave to the visiting gentlemen did not bear any marks indicating its revocation.

Defendant-appellant Collison’s testimony was of course circumscribed and limited by the dead man’s statute. She related how she became acquainted with Mrs. Smith some five or six years previously but was not permitted to repeat any conversation. She said she wrote the letter to the attorney, recalling the will, and Mrs. Smith signed it in ink. She said that she gave an order at the hospital for her not to have visitors. She attempted to testify that this was at Mrs. Smith’s request, but objection was sustained. She said she was at Mercy every afternoon and “part evenings” during the period of her confinement. She never saw Mrs. Gillespie there. She denied that she told Mrs. Gillespie she could not come to the funeral. When the men (Woodruff and company) went to see her, she had no counsel, but she did try to tell them of the circumstances and tried to be honest with them. She did not know the will had to be probated, and she gave it to the men because they requested it. She voluntarily showed them the television set and rocking chair, and told Mr. Woodruff that these things had been removed to her house after Mrs. Smith’s death. She said she also had a broken table of Mrs. Smith’s stored in her attic. She did not close the apartment until after Mrs. Smith’s death. She produced a cancelled check (presumably for rent) dated January 2, 1962, and signed by Mary J. Smith, which she had given the apartment manager. She said after Mrs. Smith’s death and the closing of the apartment, she was in bed with the flu. The apartment manager got impatient concerning her moving the “things” out, and he stored them in the basement. Some personal articles were given to the Salvation Army. She understood that a man from Kansas City was to get the three pictures, and they were left in the basement. No one bothered to call the apartment manager as a witness.

James Collison, son of plaintiff, testified as to the first acquaintance with Mrs. Smith, as related heretofore. He said Mr. Smith was living at the time. After that first encounter, he sometimes ran errands for them, such as carrying groceries and taking laundry to the laundromat, and once he helped clean the house when Mrs. Smith moved.

He said his mother was at the Smith apartment regularly a couple times a week over the last five or six years. He sometimes went with her. His mother helped Mrs. Smith with her groceries and clothes. After Mrs. Smith fell and hurt her back, his mother was there almost every day, sometimes twice a day. She fixed Mrs. Smith’s meals, cleaned her up, and bathed her.

He had no discussion with Mrs. Smith about finances, but said Mrs. Smith said she was going to make sure “my mom got all she had after she died because she [his mother] could buy her a car and other things she needed.” She offered to buy his mother a car but his mother refused because she didn’t think Mrs. Smith could afford it. Mr. and Mrs. Smith had offered to pay Mrs. Collison for cooking, washing, and cleaning up, but she never accepted it. He said that Mrs. Smith had made the remark about wanting his mother to have everything she had when she died on the average of about once a week over the last two years. The trial court found this testimony “incredible and not worthy of belief.”

On January 23, 1962, Mrs. Collison paid the funeral bill, in accordance with the contract made by Mrs. Smith (plus the cost of some flowers and the honorarium to the minister), by check on the account in the amount of $827.05, and by delivery of a “social security check” in the amount of $77.00. On the same day, Mrs. Collison transferred the account to her own name.

The trial court made extensive findings of fact, too lengthy to be set forth here. Included were the findings that (a) the transfer was a gift, (b) a confidential relationship existed, (c) Mrs. Collison was active in procuring it, (d) the transfer was procured by means of undue influence. Judgment was rendered in favor of plaintiff for $10,485.69, which the court found to be the amount of the accounts at date of death of Mrs. Smith, plus an additional $175.15, representing a refund from Mercy Villa. The judgment also directed that the television set, rocking chair, end table, and three paintings be delivered to plaintiff.

We accord deference or “due regard” to those findings of fact of the trial court which are based upon sufficient evidence supplied by the spoken word of witnesses. Cooper v. Freer, Mo.App., 385 S.W.2d 340(8); Norman v. Durham, Mo., 380 S.W.2d 296(2).

Various “presumptions” and rules in respect to “burden of proof” confront us. In the first place, plaintiff, having the affirmative at the outset, had the initial burden of proof. Secondly, the depositor’s contract signed by the parties made a prima facie transfer of a present interest. Because of the necessary requirements of the business world, it is presumed that the parties intended what the depositor’s contract provided until it is shown that such contract was entered into by virtue of fraud, mistake, incapacity, or other circumstances which would vitiate it. Sections 362.470, 363.740 V.A.M.S.; Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817; Connor v. Temm, Mo.App., 270 S.W.2d 541.

Perhaps because of the possible injustices worked by the dead man’s statute, the courts have created some “presumptions.” One of them is that, if services are performed by one not of the family and having no moral duty to perform them, such services are performed and received with expectation on both sides of payment of the reasonable value thereof. Steva v. Steva, Mo., 332 S.W.2d 924, and cases at 926, 927; Embry v. Martz’ Estate, Mo., 377 S.W.2d 367(1). However, with respect to this “presumption” we apprehend that the services so rendered must be of such character and duration as would, in the mind of the ordinary reasonable person, imply expectation of payment. Thus a single or occasional errand or kind act would not necessarily imply expectation of payment, whereas extraordinary, onerous, or continued acts of service might well do so.

Then there is the presumption, or rather legal inference of fact, that if a gift is made to one standing in a confidential relationship with the donor, and if the donee is active in procuring or bringing about the specific transfer, these facts are sufficient to justify a finding of undue influence. Flynn v. Union National Bank of Springfield, Mo.App., 378 S.W.2d 1(13), and cases cited.

As to the finding of a confidential relationship: We think the evidence as we have related it was sufficient to justify the finding by the trial court that such existed. The defendant got the cards and took them to Mrs. Smith, and the cards were signed by both parties and returned by defendant on the same day. Thus the finding of “activity” on the part of the defendant is well-supported. It is suggested that the Flynn case (378 S.W.2d 1) is to the contrary, but in that case there was no evidence that the donee had anything to do with the card until after the donor had signed it.

We have more trouble with the question of whether or not this was a transfer for a valid consideration instead of a gift. However, the finding of the trial court was that the transfer was a gift and without consideration, and to this finding of fact we defer.

But we think the court’s finding in respect to the transfer of the accounts is not necessarily inconsistent with any implied or presumed contract to pay the reasonable value of services performed or to be performed. The evidence is inadequate as to the extent and quantity of services rendered prior to the tíme Mrs. Smith fell and sustained injury, and we cannot and do not say from this record that such were of the character and sufficiency to raise any presumption of intention (implied contract) to pay therefor. But it is quite likely that the services performed after that time were of the character which normally would imply expectation of payment. Mrs. Smith was practically helpless and in need of considerable care, and Mrs. Collison supplied that care.

The evidence shows that Mrs. Collison, with, we think, Mrs. Smith’s consent and approval and in accordance with Mrs. Smith’s instructions, was paying the bills and debts for Mrs. Smith out of this account both before and after death — a situation not entirely unlike that in Weber v. Jones, 240 Mo.App. 914, 222 S.W.2d 957. As we have stated, Mrs. Smith was contemplating death and was making preparation for it. The depositor’s agreement created a contract, and Mrs. Collison took a present interest. In what capacity did she take? The same facts, in transaction of business and payment of bills, et cetera, which create the confidential relationship from which undue influence is to be inferred also create the relationship of principal-agent and, after transfer of funds, the relationship of trustee, as mentioned in Mathews v. Pratt, Mo., 367 S.W.2d 632. We think the evidence justifies the conclusion that the transfers were made to Mrs. Collison as agent and actual or implied trustee for the purpose of enabling Mrs. Collison to pay her (Mrs. Smith’s) expenses and her obligations as. they should arise, both before and after death.

It would therefore seem that Mrs. Colli-son is to be charged with the amount of the funds so transferred but should also be credited with such amounts withdrawn, paid out, or withheld as represent payments or disbursals to accomplish that end in performance of the trust. This would, of course, include the funeral bill, medical expense bills (less any rebate credit), and any other lawful expenses or obligations of Mrs. Smith’s, including any payment or withdrawals to pay for the value of services which were of such nature and character and period as would imply expectation of payment therefor, as has heretofore been mentioned.

The judgment of the trial court is based upon the amount of deposits as of date of death of Mrs. Smith and would therefore appear to exclude all credits for withdrawals or checks entered on the bank ledger accounts after that date. The judgment also charges Mrs. Collison with three paintings. We think the evidence is insufficient to show that she ever took such; but, since the case must be remanded in order to permit a determination of the credits to which Mrs. Collison is entitled, the question of who got the paintings is left open for the production of additional evidence in that respect.

The judgment is affirmed in part, but it is remanded for the purpose of determining what credits the defendant is entitled to, and for such other proceedings as are not inconsistent with the views herein expressed.

STONE and HOGAN, JJ., concur.

      . V.A.M.R. Civil Rule 55.53; Pender v. Poeste, Mo., 329 S.W.23 656(4); Simon v. S. S. Kresge Co., Mo.App., 103 S.W.2d 523(2); Rubbelke v. Aebli, Mo., 340 S.W.2d 747(6-8).

      . It may be that plaintiff was interested in showing it in order to establish confidential relationship but that defendant shied away from, it for the same reason.

      . While this presumption, is necessary, we have some doubts as to whether the average person, not familiar with banking, legal or business affairs, ever reads, or if so reading ever understands, the fine print depositor’s contract on the back of the card (see In re Patterson’s Estate, Mo., 383 S.W.2d 735, 739; Missouri Bar Journal [September 1965] p.394). Banks could help to avoid misunderstandings by bringing in bold-face type, immediately above the signature, words sucli as “When one of the owners die, this account will belong to the survivor,” or words of similar import.

      . See also State ex rel. Lee v. Sartorius, 344 Mo. 912, 130 S.W.2d 547; Brooker v. William H. Thompson Trust Co., 254 Mo. 125, 162 S.W. 187, 194; Kerber v. Rowe, 348 Mo. 1125, 156 S.W.2d 925, 927; Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 116; Swon v. Huddleston, Mo., 282 S.W.2d 18, 55 A.L.R.2d 205; Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8, 15-16.


author: HOGAN, Judge.

text:
    G. T. RICHARDS and Mary Richards, Plaintiffs-Respondents, v. C. B. CONTRACTING COMPANY, Inc., a corporation, Defendant-Appellant.
    No. 8391.
    Springfield Court of Appeals. Missouri.
    Oct. 20, 1965.
    Robert T. Donnelly, Donnelly & Don-nelly, Lebanon, Harry H. Kay, Robert J. Quigley, Kay & Quigley, Eldon, for defendant-appellant.
    Morgan M. Moulder, Camdenton, for plaintiffs-respondents.
   HOGAN, Judge.

This is an action for damages to the plaintiffs’ property caused by the defendant’s use of explosives in excavating for a sewer line in Camdenton, Missouri. The plaintiffs had a verdict in the sum of $770.00, and the defendant has appealed. Because of the circumscribed nature of the appeal, only a brief review of the facts is necessary.

At the time involved, the plaintiffs owned and lived in a house on Illinois Street in Camdenton. The house consisted of a living room, kitchen, two bedrooms, bathroom, enclosed porch and a small back porch. It was about four years old when the plaintiffs acquired it “the latter part of ’37 or the early part of ’38,” and was worth, according to Mr. Richards, “$10,000 or a little in excess probably,” and according to Mr. Welker, a building contractor, “$10,000 to $12,000.” A considerable part of the house had plaster walls and ceilings.

The defendant, as part of its business, installed sewers and disposal plants, and at the time in question was digging trenches for the installation of a sewer system under contract with the city of Camdenton. In this instance, the defendant was using an ordinary backhoe to dig the trenches, but because of “hardpan and boulders” in the vicinity of the Richards house, it became necessary to blast, because, as the defendant’s foreman put it, “ * * * we just couldn’t dig.”

In contrast to many cases of this kind, the plaintiffs attributed their damage to the effect of a single, violent blast. It is unnecessary to go into the evidence in detail, but the plaintiffs’ claim was that on August 3, 1962, there was a blast or detonation which was “* * * one that was different from all the rest, it was more powerful.” The plaintiffs maintained that this particular detonation had caused extensive damage to the plaster in their house, though there was no claim of damage to the foundation or to the structure of the house otherwise. There was evidence that the reasonable cost of repair and restoration of the plaintiffs’ house was “a little less than $800," or, according to Mr. Richards, “slightly under $800.”

While it vigorously contested the plaintiffs’ claim, the defendant did not deny the use of explosives at the time involved, but maintained, as we have said, that the structure of the earth was such that the use of explosives was necessary. The defendant also adduced rather elaborate proof from an expert witness that the cracks in plaintiffs’ plaster were the result of settlement and deterioration, rather than blasting damage, and offered proof through this same expert that the amount of explosives used near the Richards house was so small that it could not possibly have caused damage to the house.

The only assignment of error made by the defendant on this appeal is that the giving of plaintiffs’ Instruction 3 constituted error. Instruction 3 is as follows:

“The court instructs the jury that the law applicable to this case does not require plaintiffs to allege or prove specific acts of negligence on the part of defendant, if any, and the defendant is responsible for such damages, if any, to plaintiffs’ dwelling house which, if you so find, was directly caused by blasting or discharge of blasting powder or explosives on or about the 3rd day of August, 1962, by defendant or its agents or employees, and, if you so find, then the defendant is responsible for such damages, if any, regardless of the degree of care which defendant exercised in such blasting or in discharge of explosives”

The defendant, asserting that Instruction 3 was argumentative and “unduly emphasized the liability of defendant,” cites in support of its argument the cases of Stupp v. Fred J. Swaine Mfg. Co., Mo., 229 S.W.2d 681, 684, 685; Kemmler v. City of Richmond Heights, Mo., 114 S.W.2d 994; and Fry v. Baskin, Mo.App., 231 S.W.2d 630, 637 [16] [17]. We have examined these authorities carefully.. In the Stupp case, the plaintiff sustained personal injuries while operating a punch press machine for his employer, and he brought an action against the manufacturer of the machine, claiming that the manufacturer had wrongfully delivered the machine to his employer in an unsafe and dangerous condition. There was evidence that certain adjustments or repairs had been made by the employer or its foreman after the machine was received by the plaintiff’s employer, and the defendant made proof that the machine had been rendered unsafe and dangerous because of the employer’s repairs, rather than its negligent manufacture or assembly of the machine. The defendant gave an instruction predicating a verdict for the defendant upon the ground that the sole cause of plaintiff’s injury was the employer’s repair or adjustment of the machine. The plaintiff then offered, and the trial court gave, plaintiff’s Instruction No. 9, advising the jury that if they found the defendant to be negligent, and its negligence combined with the conduct of the employer and its foreman in producing the injury, then “ * * * there would be no issue of such sole cause in the case because the defendant could not make use of such conduct [of the employer and foreman] to shield itself against the result of its own negligence * * The trial court concluded it had erred in giving this instruction and granted a new trial. On appeal, the Supreme Court considered that Instruction No. 9 was argumentative in form and probably foreclosed a fair consideration of the defendant’s sole cause instruction, and affirmed the order granting a new trial. In the Kemmler case, the trial court gave an instruction withdrawing the issue of fraud and misrepresentation from the consideration of the jury in an action wherein the plaintiff sought, among other things, to set aside a release upon the ground that the defendants had obtained it “by undue influence and by misrepresentation and fraud * * The reviewing court held that inasmuch as the plaintiff made no proof of any specific act of fraud or misrepresentation it was not error to withdraw that issue from the jury’s consideration. In the Frye case, this court held that the trial court did not err in refusing certain abstract instructions which were also slightly argumentative. While we have no doubt of the soundness of the rulings made in those cases, we do not consider that they govern the merits of this appeal. Certainly the instruction in question here is not comparable in complexity or degree of harangue to Instruction 9 in the Stupp case, supra, which, on the face of the reported decision, invited comparison of the defendant’s conduct with that of the employer, who was not a party to the action, and told the jury in effect that the defendant was improperly attempting to “shield itself against the result of its own negligence.”

Once again, the specific complaints lodged against Instruction 3 in this case are that it was argumentative and overemphasized the liability of the defendant. No other objection is made to the instruction.

As we view Instruction 3, it is in the nature of a cautionary instruction. It does not in terms authorize a verdict, but merely advises the jury that in deciding the merits of the case it is not to consider the negligence, or lack of it, on the part of the defendant. A cautionary instruction may, of course, be prejudicial if it states an incorrect or inapplicable rule of law, Boll v. Spring Lake Park, Inc., Mo., 358 S.W.2d 859, 864-865 [6-8]; Morris v. E. I. Du Pont De Nemours & Co., 351 Mo. 479, 484-485, 173 S.W.2d 39, 42 [2-8], but Instruction 3 does not amount to positive misdirection, because if the defendant’s blasting activity caused damage to the plaintiffs’ property by vibration or concussion, the defendant was liable, irrespective of negligence. Summers v. Tavern Rock Sand Co., Mo., 315 S.W.2d 201, 203 [1]; Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 534 [1] [2], Instruction 3 does, to be sure, refer once to “specific acts of negligence,” and it tells the jury that defendant’s liability is to be determined “regardless of the degree of care which defendant exercised,” but at the same time, an instruction is not necessarily prejudicial because there is some repetition or elaboration of the same subject matter in an instruction or series of instructions. Richardson v. Cope, Mo., 370 S.W.2d 318, 322 [3, 4] ; Reidinger v. Adams, Mo., 266 S.W.2d 610, 613 [4]; Mueller v. Schien, 352 Mo. 180, 190-191, 176 S.W.2d 449, 454-455 [18-20].

When we read and analyze the instruction as a whole, we find that Instruction 1, plaintiffs’ verdict-directing instruction, predicated recovery upon findings that: (1) plaintiffs were the owners of the property in question; (2) the defendant discharged explosives at the time involved “so near to” the property as to cause the “said buildings to be shaken, broken or injured”; (3) plaintiffs were damaged thereby; and (4) the damage was directly and proximately caused by the defendant’s blasting. Instruction 2 defined the measure of damages as being the difference in value of the dwelling house immediately before and immediately after the blasting, or the cost of repair and restoration, whichever was less, according to the rule set out in Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 685-687, 253 S.W.2d 158, 164-165 [12]. Plaintiffs also gave Instruction 3.

The defendant tendered and the trial court gave a converse instruction predicating a defendant’s verdict upon a finding that “ * * * the charges of dynamite or other explosives * * * did not cause the building of plaintiffs to be shaken, broken or injured * * * ” and did not cause any damages to plaintiffs. At defendant’s instance, the trial court gave a “burden of proof” instruction, advising the jury that the burden was on the plaintiffs to prove by the preponderance of all the evidence every fact which, under the instruction of the court, they were required to prove in order to make out their case, and advising the jury that if the evidence as to any one of such facts was equally balanced, then their verdict must be in favor of the defendant. These instructions seem to us to expound the applicable law fairly in a relatively simple and easily understood fact situation, and we frankly cannot see that Instruction 3 either added to or detracted from the submission as a whole in any substantial or material way.

In the final analysis, however, the defendant’s complaints concerning Instruction 3 — that it prejudicially overemphasized certain aspects of the case, and is repetitious or argumentative — are matters more appropriately addressed to the trial court than to us. The giving or refusing of a cautionary instruction is primarily a matter within the sound discretion of the trial court, and that court, having had a superior opportunity to observe the conduct of the trial, could best determine whether there was any misleading, confusing or prejudicial effect from Instruction 3. The same assignment of error which is made here was before the trial court on the motion for new trial. By denying the motion, it found against the ground of error advanced here, and we are inclined to defer to that ruling. Roush v. Alkire Truck Lines, Mo., 245 S.W.2d 8, 13 [9, 10] [11, 12] ; West v. St. Louis Pub. Serv. Co., 361 Mo. 740, 748-749, 236 S.W.2d 308, 313 [13]; Morris v. E. I. Du Pont De Nemours & Co., supra, 351 Mo. at 485, 173 S.W.2d at 42-43 [2-8]; Edwards v. Business Men’s Assur. Co., 350 Mo. 666, 689-690, 168 S.W.2d 82, 95-96 [30]. The judgment is affirmed.

RUARK, P. J., and STONE, J., concur.

      . It will be understood that we are considering Instruction 3 in light of the instruction practice which obtained prior to the effective date of Rule 70.01, V.A. M.R., pertaining to the use of Missouri Approved Jury Instructions.


author: HILL, Judge.

text:
    J. Murray BLUE, Appellant, v. Myrtle HANER et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Rehearing Denied Dec. 10, 1965.
    Damon A. Vaughn, Dixon, for appellant.
    George B. Simpson, Sturgis, for appel-lees.
   HILL, Judge.

This is an appeal by the owner of the servient estate from a jury verdict and judgment finding appellees entitled to an easement over the lands of appellant.

In 1891, James Haner became the owner of a 72-acre farm on Caney Fork Creek in Webster County, Kentucky, which did not then or now join a county road. During 1913 and 1914 he built a new house on the south side of his farm. There were three outlets from the Haner farm, one known as the Shields lane, another leading to the Airline road, and the lane or road in question leading south through appellant’s farm. There were anywhere from two to four gates across the road. James Haner died in 1929, and during the following eight years some of his children continued to live on this farm and use the road in question. Thereafter, and to the present time, so far as this record shows, no one resided on the Haner farm, but during most of those intervening years there was some cultivation of a part of the farm. Appellee, Myrtle Han-er, the present owner of a six-eighths interest in the farm, and a school teacher, married John Haner, the oldest son of James Haner, She inherited her husband’s one-eighth interest in the farm and purchased five other shares in the late ’30’s.

Appellant contends the use of the easement in question was purely permissive, while the appellees contend the use was adverse, so, that after continuous use for fifteen years she and her co-owners acquired an absolute easement.

On appellees’ motion, the trial court submitted the issues to a jury, which found for the appellees.

According to this record the first evidence of any interference by appellant, or his predecessors in title, was about 1941, when W. C. Foster nailed up one of the gates after trouble with Willie Haner, grandson of James Haner, over leaving the gates open. The next and only instance of interference with the use of the road was by the appellant in 1957, when he questioned the right of the appellee, Myrtle Haner, to have some bulldozing work done on the road in question.

The evidence was most conflicting. For the appellant it was shown emphatically by his two predecessors in title, Forest B. Woodring and W. C. Foster, whose combined title went back to 1933, that the use was clearly permissive. .Their testimony is also substantiated by two of the sons of James Haner and a grandson, as well as other evidence.

On the other hand, it was shown by the evidence of the appellee, Myrtle Haner, who had been in the family since 1924, and knew of the situation since 1913, that the use of the easement was adverse. There is other substantial evidence tending to support her theory, including the evidence of Jesse Tapp, age 70, and a son of W. V. Tapp who owned and lived on the farm from 1909 to 1915. Jesse Tapp testified that the easement in question was used “freely” since 1909. He also testified there was an agreement between W. V. Tapp and James Haner pertaining to repairs of the road by the latter. There were volumes of other evidence to support both theories. In fact, there are seven volumes and nearly one thousand pages of testimony, all of which has been carefully read and considered, and we should add much of the testimony was incompetent. It is conservative to say the respective contentions of the parties have substantial support in the testimony.

We turn now to a discussion of the law announced by this Court in previous cases involving easements. In Cox v. Blaydes, 246 Ky. 121, 54 S.W.2d 622, at page 624 (1932), this Court said:

“The uninterrupted, continued, and unexplained use of a passway for 15 years or more raises the presumption that such use was under a claim of right and casts upon the owner of the servient estate the burden of showing that the use was merely permissive. Snyder v. Carroll, 203 Ky. 320, 262 S.W. 290; Hatfield v. Skinner, 209 Ky. 586, 273 S.W. 432; Barry v. Messmer, 203 Ky. 702, 262 S.W. 1109; Purcell v. Brown, 208 Ky. 234, 270 S.W. 819; Bridwell v. Beerman, 190 Ky. 227, 227 S.W. 165. And where the use of a passway has extended over a long period of years, slight evidence is sufficient to show that it was enjoyed as a matter of right. Childers v. Groves, 194 Ky. 790, 240 S.W. 1057; Smith v. Fairfax, 180 Ky. 12, 201 S.W. 454; Stewart v. Brumley (Ky.) 119 S.W. 798.
The prescriptive right to the use of a passway, once acquired, is not lost because it was closed or obstructed by the servient owner unless it be for such a time as to give such owner right thereto by adverse possession. Crigler v. Newman (Ky.) 91 S.W. 706, 29 Ky. Law Rep. 27.”

Also in the case of Wright v. Willis, Ky., 63 S.W. 991, 23 Ky.Law Rep. 565 (1901), it was held that where one purchased land through which an old road passed he was charged with knowledge that persons using the road claimed the use as a matter of right.

In conclusion, we adopt the language in the Cox case, supra, by saying “In the light of the evidence and the authorities cited, it is apparent that appellant failed to sustain the burden of showing that the use of the passway was permissive and not a matter of right.”

The judgment is therefore affirmed.

PALMORE and STEWART, JJ., not sitting.


author: MONTGOMERY, Judge.

text:
    Chester VAUGHN et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 30, 1965.

      Robert L. Dowell, Greensburg, Charles Huddleston, Bowling Green, for appellants.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

One John Montgomery was convicted in the Monroe Circuit Court on the charge of storehouse breaking. Pending an appeal he was allowed bail in the sum of $2,500, with appellants Chester Vaughn and Glenn Scott as sureties. His appeal was dismissed. Upon failure of Montgomery to render himself amenable to the orders and process of the Monroe Circuit Court, appellants were summoned to appear therein on January 29, 1964, to show cause why judgment of forfeiture should not be entered.

Appellants moved that they be exonerated from the forfeiture on the ground that John Montgomery had been extradited to the State of Tennessee. Filed with the motion was a certification from the Clerk of the Criminal Court, Smith County, Tennessee, from which it appears that “John Montgomery was extradited by the officials of the State of Tennessee from the State of Kentucky on the 14th day of May, 1963”; that he was bound over to the Criminal Court of Smith County and placed under bond in the amount of $2,500; that his case was continued from the December 3, 1963 term until the March 30, 1964 term of the court; and that “his bond is still in effect.”

The motion for exoneration was overruled and judgment of forfeiture in the sum of $2,500 was entered against appellants. They appeal and urge that extradition of a fugitive in custody under charge in Kentucky exonerates and releases the surety on his bail bond. Appellants rely on KRS 425.090, which in part provides:

“He will be exonerated by the death of the defendant, or his removal from this state under process of law as a fugitive, before the return day of the summons served upon the bail in the action to enforce his liability; * *

Appellee relies on RCr 4.28(3) to sustain the forfeiture which provides in part as follows:

“Unless there are reasonable grounds to believe that the principal has caused himself to be incarcerated elsewhere, or elects to remain under such detention though able to secure his release through bail or otherwise, for the purpose of delaying or avoiding appear-anee, the court shall not declare a forfeiture of bail (or, having declared a forfeiture, shall remit the amount thereof) if it is proved that his appearance is prevented by detention in a jail or penitentiary outside the Commonwealth of Kentucky or in custody of the United States. * *

A primary purpose of bail in a criminal case is to relieve the accused of imprisonment and at the same time to keep the accused constructively in the custody of the court, whether before or after the conviction, to assure that he will submit to the jurisdiction of the court and be in attendance therein whenever his presence is required. Hicks v. Commonwealth, 265 Ky. 123, 95 S.W.2d 1076; 8 Am.Jur.2d, Bail and Recognizance, Section 4, page 784. Generally it is only where performance of the conditions of a bail bond has been prevented by an act of God, an act of obligee, or an act of law that the sureties are entitled to relief. 8 Am.Jur.2d, Bail and Recognizance, Section 177, page 879.

If the act that prevents the appearance of the accused justifies or excuses the nonappearance no forfeiture should be ordered. It is incumbent on the accused or his surety to show that accused’s nonappearance was excusable or justifiable. Burd v. Commonwealth, Ky., 335 S.W.2d 945. Appellants showed that Montgomery had been removed to Tennessee by extradition but failed to show that he was in jail or imprisoned in Tennessee at the time of his nonappearance in the Monroe Circuit Court. To the contrary, the proof shows that Montgomery was free on bail. Any excusable basis for nonappearance by reason of the extradition was removed when he was released on bail in Tennessee. He was then free to appear in the Monroe Circuit Court in obedience to the terms of his bail bond therein. His failure to appear justified the forfeiture. McDonald v. Commonwealth, 213 Ky. 570, 281 S.W. 538, 45 A.L.R. 1034.

KRS 425.090 affords no relief. The Legislature undoubtedly intended a detention by reason of extradition as a basis for exoneration rather than the mere act of extradition. Had Montgomery been acquitted of the Tennessee charge, no one could validly claim that the extradition would have excused him from appearing in the Monroe Circuit Court. The adoption of RCr 4.28(3) supplements the statute by requiring proof “that his appearance is prevented by detention in a jail or penitentiary outside the Commonwealth of Kentucky or in custody of the United States.” This construction of the statute and rule is consonant with the holdings in Briggs v. Commonwealth, 185 Ky. 340, 214 S.W. 975, 8 A.L.R. 363; Burd v. Commonwealth, Ky., 335 S.W.2d 945; and Turner v. Commonwealth, Ky., 338 S.W.2d 213, that the accused will be excused from nonappearance only for good cause shown. There was no justification or excuse shown for the nonappearance here.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    Martha L. BROCK et al., Appellants and Cross-Appellees, v. J. C. HELTON et al., Appellees and Cross-Appellants.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.

      Joe Nagle, Denham, Ralston & Nagle, Middlesboro, for appellants.
    William S. Tribell, Middlesboro, for cross-appellants.
    Logan E. Patterson, Pineville, for ap-pellees.
    Joe Nagle, Middlesboro, for cross-appel-lees.
   DAVIS, Commissioner.

This appeal presents two separate problems relating to the general election to be held in Middlesboro November 2,1965. We have issued appropriate orders disposing of the litigation and this opinion states the bases for the orders.

The first phase of the appeal relates to whether four persons are to be listed as Democratic candidates for the office of city councilman in Middlesboro. The trial court ruled that two of the names, appellants Leslie Adams and Kirby Smith, were properly on the ballot, but adjudged that the names of appellants Tom Epperson and Robert Renner should not be on the ballot. We hold that appellants Epperson and Renner are to be listed on the ballot. No question is raised as to the propriety of listing Adams and Kirby; they are not proper parties to this appeal.

A stipulation of facts discloses that Mid-dlesboro is governed by a Board of Council composed of twelve members. Six members of the council are elected from the South Ward and six from the North Ward. Voters in each ward are permitted to cast ballots for six councilmanic candidates, so that the six candidates polling the highest number of votes are nominated in a primary race in each ward.

In the North Ward five persons filed as candidates for councilmen in the Democratic Primary; four persons filed as such candidates in the Democratic Primary in the South Ward. Before the primary date, but after the date for filing in the primary had passed, candidate Claude Conner withdrew as a candidate in the North Ward and candidate Jack R. Smith withdrew as a candidate in the South Ward. Both of these men were candidates in the Democratic Primary. After the primary date, but before the printing of the ballots for the general election to be held November 2, 1965, Democratic candidate Claude Teague withdrew from the same race in the North Ward and Democratic candidate Sam Scott, Jr. withdrew from the council race in the South Ward. Thus, where nine persons had sought the nominations for the twelve council seats, four withdrew — two of whom withdrew before the primary date and two after the primary date.

Pursuant to KRS 119.020 the governing authority of the Democratic Party in Bell County undertook to name four persons in behalf of the Democratic Party as nominees for the four council seats which had been sought by the four persons who had withdrawn.

Appellant Epperson was designated as replacement for Claude Conner; appellant Renner was to take the place of Jack R. Smith. (Kirby Smith, Jr. was to replace Claude Teague and Leslie B. Adams was to replace Sam Scott, Jr.) It is seen therefore, that appellants Epperson and Renner were to replace the two men who withdrew before the primary date. It was for this reason that the trial court concluded that the governing body of the Democratic Party had no authority to name replacements for Conner and Jack R. Smith. We do not agree.

When the time expired for filing in the primary race there were five persons seeking the six Democratic nominations for councilmen in the North Ward and four persons seeking the six Democratic nominations in the South Ward. Each of these candidates was entitled to a certificate of nomination after the expiration of the time for filing in the primary. KRS 119.-090. Therefore, as to the four persons who withdrew there was a “vacancy in the nomination of an unopposed candidate” within the meaning and enablement of KRS 119.-020(3). In such circumstance, it was proper for the governing authority of the party to name appellants to fill these “vacancies”.

The second phase of this appeal is presented by the cross-appeal and relates to the physical arrangement of the voting machines to be used in the November 2nd election. The voting machines are so arranged as to enable a voter to vote a “straight” party ticket by pulling a single lever designed for the party of the voter’s choice. However, there is no Democratic candidate for mayor of Middlesboro, although there is a Republican candidate for that office and an independent candidate for mayor. For the appellees, interested Republican candidates, it is asserted that an unfair advantage will obtain for the Democratic ticket inasmuch as a voter who desires to vote for the independent candidate for mayor, plus all other members of the Republican ticket, will have to manipulate three levers, whereas one who desires to vote for the independent mayoralty candidate plus all other members of the Democratic ticket may do so by only two manipulations of the levers. It would serve no useful purpose to attempt to further outline the mechanical situation with respect to the voting machines. It suffices to say that we have carefully considered the matter and agree with the trial judge as to this phase of the case. We are convinced that the arrangement of the voting machines fairly and reasonably affords an opportunity for each voter to intelligibly cast his vote for the candidates of his choice. The alternative suggested by appellees would, in our view, be more confusing than the method to be used.

The judgment is reversed on the original appeal and affirmed on the cross-appeal.