author: L. F. COTTEY, Special Judge. PER CURIAM:

text:
    Norma Dean MARTIN, Plaintiff-Respondent, v. Hubert Ray SITZ, Defendant-Appellant.
    No. 31720.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.
    Rehearing Denied Sept. 16, 1964.

      Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for defendant-appellant.
    Donald S. Hilleary, Clayton, for plaintiff-respondent.
   L. F. COTTEY, Special Judge.

Plaintiff was injured when the automobile in which she was a passenger was struck from the rear by one driven by defendant. On trial of her action for damages the jury returned a verdict for defendant. Thereafter the trial court sustained plaintiff’s motion for new trial on the sole ground that prejudicial error had been committed in the giving of defendant’s Instruction 7. Defendant appeals from that ruling.

The Martin car in which plaintiff was riding at the time the accident occurred was being driven northwardly by her husband in a long procession of northbound Sunday afternoon traffic on U.S. Highway 61. Behind it followed defendant’s car. Next ahead of the Martin car was one we shall refer to as the Coxey car. At times all of the cars in the northbound traffic lane traveled at speeds of 55-60 miles per hour and at times they slowed to 20-25 miles per hour. Just before the accident developed they were all proceeding at about 40-45 miles per hour. The Martin car had been maintaining a distance of some eighty to a hundred feet behind the Coxey car and defendant was following the Martin car at a distance of about sixty feet. The accident developed when all of the forward cars slowed abruptly. Observing the Coxey car slowing in front of him, Martin applied his brakes and came to a “rather fast” stop, or virtually to a stop. Instantly thereafter the impact from defendant’s car occurred.

Plaintiff’s version of the incident, supported by substantial evidence, was that the Martin car succeeded in stopping behind the Coxey car without touching it, while both cars were still on the pavement in the northbound traffic lane; that defendant’s car then struck the Martin car from behind with such force that it was knocked forward into the Coxey car, from which it bounced off to its left ar.d came to rest, still on the paved slab, with its front end at an angle across the center-line of the highway.

Defendant’s version of the incident, supported by substantial evidence, was that when the brakes were applied on the Martin car it went into an angling skid, more or less out of control; that in an effort to avoid involvement in any accident that might result from that misadventure defendant applied his own brakes and drove his car off onto the right-hand shoulder of the highway to get out of the line of traffic; that he would have been successful in avoiding the Martin car by that maneuver had it not been that at that moment the Martin car collided with the Coxey car and bounced off to its right, with a portion of its rear end on the shoulder directly in defendant’s path; that in that position it was struck on its right rear corner by defendant’s car and knocked back on the pavement at an angle across the centerline; that defendant’s car was completely off the pavement, on the shoulder, at the time.

Plaintiff’s verdict directing Instruction 2 ' hypothesized a speed of “about thirty-five to forty miles per hour” for defendant’s car and a distance of “about sixty feet” between it and the Martin car, and then submitted the proposition that defendant was negligent in following plaintiff’s automobile too closely at that speed.

Defendant countered with Instruction 7 in this language, portions of which have been bracketed for easy reference:

“(The Court instructs the jury that if you find and believe) that on the occasion mentioned in evidence plaintiff was riding as a passenger in an automobile which was being operated in a northwardly direction on Highway 61 and that defendant Hubert Sitz was driving an automobile behind and to the rear of plaintiff’s automobile; and if you further find that traffic ahead of plaintiff’s automobile began slowing and that plaintiff’s automobile slowed suddenly and skidded and collided with the rear of the automobile ahead before and prior to the time it was involved in the collision with the defendant’s automobile; and if you find that defendant, to avoid the collision, applied his brakes and swerved onto the east shoulder of the highway and was on said shoulder when the collision with the plaintiff’s automobile occurred; and if you find (that defendant) at all times as he approached the place where the collision occurred was exercising the highest degree of care in the operation of his automobile and (was not negligent in following plaintiff’s car too closely as submitted in Instruction No. 2, then you are instructed that your verdict will be in favor of the defendant.)”

Plaintiff’s attack on that instruction runs to ten paragraphs in her motion for new trial. In an effort.to confine the inquiry within reasonable limits we will say that we do not regard Instruction 7 as a “sole cause” instruction, and all criticism directed against it from that standpoint will therefore be disregarded. Neither do we think it is, or was intended as, an “emergency” instruction, and all objections to it based on that premise will likewise be disregarded. That leaves us with the question as to whether it is a “no negligence converse” instruction, as plaintiff suggests for a third alternative, and, if so, whether it is prejudicially erroneous as such.

Plaintiff says that if the instruction had been designed as a true converse (which requires no evidence to support it, Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, 662) it would have read simply, “The court instructs the jury that if you find and believe from the evidence that defendant was not negligent in following plaintiff’s automobile as submitted to you in Instruction 2, then your verdict should be in favor of the defendant.” A reference to the bracketed portions of Instruction 7 will disclose that it contains almost that identical wording. It must be that the instruction is, then, as defendant insists, a true converse coupled with an hypothesis of certain affirmative evidentiary facts which are relied on either as constituting a complete and independent defense in and of themselves, or as disproving one or more of the essential factual elements of plaintiff’s case. It is not suggested that there is any impropriety in joining the two propositions in a single instruction, although the usual practice is to submit them separately; and we think they may be joined, either conjunctively or disjunctively, provided each is complete and proper when examined separately. See by analogy, Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 466. Now we take it to be conceded that the true converse portion of Instruction 7 is complete and proper. And we think the facts hypothesized in the remaining portion are supported by substantial evidence. The narrow question, then, is, allowing that they are all true, do they add up to a submissible theory of defense? The answer requires a detailed analysis of the defensive factual hypotheses contained in the instruction.

First, “ * * * that on the occasion mentioned in evidence plaintiff was riding as a passenger in an automobile which was being operated in a northwardly direction on Highway 61 and that defendant Hubert Sitz was driving an automobile behind and to the rear of plaintiff’s automobile, and * * * that traffic ahead of plaintiff’s automobile began slowing and that plaintiff’s automobile slowed suddenly” ; (those facts confirm plaintiff’s theory; they do not controvert it in any particular and are devoid of defensive effect; the sudden slowing of plaintiff’s car did not relieve defendant of the duty to avoid colliding with it and could therefore have real significance only in an emergency instruction, which this is not) ; Second, that plaintiff’s automobile “skidded and collided with the rear of the automobile ahead before and prior to the time it was involved in the collision with the defendant’s automobile”; (here we have a factual situation at odds with plaintiff’s version, but the disagreement is superficial only and lacking in any real defensive significance because the first collision does not excuse the second, nor justify defendant in colliding with her either then or thereafter) ; Third, “ * * * that defendant, to avoid the collision, applied his brakes and swerved onto the east shoulder of the highway and was on said shoulder when the collision with the plaintiff’s automobile occurred * * * ”; (Surely an unsuccessful attempt to avoid an accident has never been allowed to exculpate a defendant whose own negligence is assigned as the cause of it, as here, for instance, where he is charged with following too closely at the rate of speed he was driving; and the further fact that he was driving on the shoulder at the time the impact occurred is equally irrelevant since the law gives him no greater right to run plaintiff down there than on the pavement.) Those are all the hypothesized facts. It is clear that they do not constitute a complete and independent defense; neither do they controvert or disprove any essential factual element of plaintiff’s case. Not only is the instruction incomplete “* * * in the essentials of its hypothesization * * it is equally lacking “ * * * in a recognition of defendant’s duties. * * * ” Carlson v. St. Louis Public Service Company, Mo., 358 S.W.2d 795, 801. Nothing in it serves to negate the primary negligence submitted by plaintiff’s Instruction 2. As plaintiff says, “ * * * Every fact that the defendant has hypothesized to exonerate himself could be true and still he could be negligent in following too closely. * * * ” The omission of these essential elements cannot be supplied by appending to the instruction a cryptic “catch-all” clause to the effect that defendant was “ * * * exercising the highest degree of care * * * ” or that he was “not negligent as submitted in other instructions.” Ozbun v. Vance, Mo., 323 S.W.2d 771, 775; Carlson v. St. Louis Public Service Company, supra, 358 S.W.2d p. 802. There is nothing in those clauses to inform the jury that the hypothesized facts were mere window dressing and not a bona fide defense.

It is no answer to suggest that the defect is unimportant on the theory that the instruction was proper as a true converse, and that whatever may have been added to it conjunctively, being unnecessary, could amount to nothing more than the assumption by defendant of a larger burden than the law required him to bear and ought therefore be disregarded as sur-plusage, as is the practice where a plaintiff’s conjunctive submission requires the jury to find, in addition to all properly proven facts essential to his recovery, certain others which were not proven but were not essential. The same latitude is not allowable to a defendant in this particular. If a defendant hypothesizes certain facts ostensibly as a defense, then they must constitute a defense. They must be sufficient in and of themselves to negate plaintiff’s theory of recovery; and this is true even though a general finding of no negligence is required by other portions of the instruction. Otherwise, as was said in Rohde v. St. Louis Public Service Co., Mo., 249 S.W.2d 417, 421, the inclusion of the hypothesized facts “ * * * could amount to nothing other than a singling out and giving undue prominence to defendant’s evidence, not in explanation of any principle relied upon, but simply as something put in an instruction which would serve no purpose other than to confuse the jury.” Instruction 7 is vulnerable to that very criticism. The error in it is just as prejudicial as it was in the instruction under review in the Rohde case.

Accordingly, the ruling of the trial court is affirmed and the cause remanded for a new trial in conformity therewith.

RUDDY, P. J., and ANDERSON, J., concur.

ON MOTION FOR REHEARING

PER CURIAM:

In his motion for rehearing defendant insists that we have misinterpreted the law in holding that his Instruction 7 did not controvert an essential factual element of plaintiff’s case. He calls attention to the conflict in the evidence touching the manner in which the accident occurred, cites plaintiff’s testimony to the effect that “ * * her car stopped behind the car ahead in the northbound lane and * * * did not strike the car ahead before it was hit by the defendant,” and declares that “[t]hat was her theory of the case.” He then concludes that Instruction 7 was a proper converse of those allegedly essential factual elements of her case because it “ * * * required the jury to find that the plaintiff’s automobile slowed suddenly and skidded and collided with the car ahead before the collision with defendant’s automobile (rather than coming to a stop or almost to a stop) and that the collision occurred on the east shoulder (not on the highway).” Cited in support of that proposition are Frechin v. Thornton, Mo., 326 S.W.2d 122, McCarty v. Milgram Food Stores, Inc., Mo., 252 S.W.2d 343, and Rollins v. Postlewait, Mo., 358 S.W.2d 828. A review of those cases, and others cited therein, will be helpful in considering and disposing of defendant’s point.

In Frechin v. Thornton, supra, plaintiff’s evidence was to the effect that she was attempting to pass defendant’s truck on its left when, without warning, the truck swerved sharply to the left across the center line of the highway in the course of making a left turn onto a side road, crowding her car off the highway into a ditch. Defendant denied it. Plaintiff’s verdict-directing instruction submitted that * * * defendant turned to the left across the center line of said highway and upon the east shoulder of the highway in front of the automobile in which plaintiff was riding * * Defendant countered with an instruction authorizing a verdict in his favor if the jury found that at all times in question he operated his truck * * * upon the right half (west) of the paved portion of U. S. Highway No. 71 by-pass, and did not operate said truck to the left (east) of the center line of said highway * * It was held that defendant’s instruction was a proper converse of an essential factual element of plaintiff’s case. And obviously it was.

In McCarty v. Milgram Food Stores, Inc., supra, plaintiff was injured when a Coca Cola sign fell on her while she was shopping in defendant’s store. She submitted her case under the res ipsa loquitur doctrine. In a res ipsa case, of course, the defendant’s control of the instrumentality causing the injury is an indispensable prerequisite to plaintiff’s recovery. She therefore required the jury to find that the sign “ * * * was in the exclusive possession and control of the defendant * * And defendant’s counter-instruction told the jury that no verdict could be returned in plaintiff’s favor unless she had established * * * tliat the Coca Cola sign mentioned in evidence was in the exclusive possession and control of the defendant * It was held that defendant’s instruction was a proper converse of an essential factual element of plaintiff’s case. And obviously it was.

In Conser v. Atchison T. & S. F. Ry. Co., Mo., 266 S.W.2d 587, plaintiff claimed to have been injured by the “unusual and extraordinary” jerk of the freight train on which he was riding. His main instruction required the jury to find that the “ * * ‘jerk of said caboose was unusual and extraordinary.’ * * * ” Defendant’s counter-instruction advised the jury that even though the train j erked, still if “ * * * the force of the jerk was not unusual and extraordinary in the operation of freight trains * * * ” plaintiff could not recover. It was held that defendant’s instruction was a proper converse of an essential factual element of plaintiff’s case. And obviously it was.

In Schaefer v. Accardi, Mo., 315 S.W.2d 230, the court observed that in a personal injury case the injury itself was a vital element of the claim. Indeed, it is the very bone and marrow of such a case; and plaintiff’s instruction accordingly required a finding in his favor on that issue. Defendant submitted simply that if “ * * * the plaintiff was not injured on the occasion in question the plaintiff cannot recover * It was held that defendant’s instruction was a proper converse of an essential factual element of plaintiff’s case. And obviously it was.

That brings us to Rollins v. Postlewait, supra, the most recent of the cases examined. In that case plaintiffs brought an action for the wrongful death of their infant son who was killed when defendant backed a truck over him. Plaintiffs’ evidence tended to establish, and their main instruction hypothesized, that the child “ * * * was sitting on the east curb * * * of * * * Forest Avenue * * * ” at the time defendant backed the truck over him. Defendant’s evidence tended to establish that the child was not sitting on the curb but was standing by it when the truck backed over him. Based on that variance in the two versions of the incident, defendant submitted this instruction: “The court instructs the jury that if you find and believe from the evidence that the deceased infant was not sitting on the east curb of Forest Avenue at the time defendant backed his truck upon and over him, then your verdict must be for the defendant Mr. Postlewait, regardless of any other fact or circumstance shown in evidence.” It was held that defendant’s instruction was a proper converse of an essential factual element of plaintiff’s case

The only authority cited in support of that conclusion is the Schaefer Case, reviewed next above. The casual reader, however, may find the similarity between those two cases somewhat more elusive than the citation of one in support of the other would ordinarily imply. The “essen-tiality” of the child’s exact position behind the truck at the time it crushed him does not appear to have been determined by quite so familiar a standard as that which leads to the conclusion, for instance, that an injury of some kind is essential to a plaintiff’s recovery in a personal injury action. In consequence, we find defendant in this case insisting that the factual issues as to whether plaintiff struck the car ahead of her before or after she was hit from behind by defendant’s car, and as to whether her car was on or partially off the paved slab at the time she was hit, were just as essential in this case as was the position of the child in the Rollins Case.

While not denying the persuasiveness of the analogy, we think the decision in this case need not be dictated by it. We do not believe the court intended to leave the impression that the question of essentiality in the Rollins Case was being determined by the identical standard applicable to the Schaefer Case. An analysis of all the cases reveals that the question of essentiality of the controverted issue has invariably arisen, not upon a mere conflict in the evidence as to the existence of a particular fact, but upon plaintiff’s submission of that fact in his main instruction as one required to be found as a prerequisite to his recovery. That circumstance is not without significance. It suggests a principle by which all the cases in which the question has arisen, or is likely to arise, may be reconciled. These fall logically into three classes, to be examined in their order.

In the first class the fact in dispute will be found to have been so essential to plaintiff’s recovery that under our rules of practice he was required to hypothesize it in his verdict-directing instruction. In such cases the defendant’s instruction submitting the converse of the dispute is obviously proper and we have no problem. Typical of these is the Schaefer Case.

In the second class the fact in dispute will be found to be, or at any rate should be, one of evidentiary significance although not absolutely essential to plaintiff’s recovery. In such a case the plaintiff is not required to hypothesize it in his main instruction but, for reasons that recommend themselves to him as tactically advantageous, he may elect to do so. If he so elects, and stakes his recovery on the jury’s finding the fact in his favor, the defendant may submit the converse of it as authorizing a verdict for himself, and the plaintiff will not afterwards be allowed to deny that it possessed the quality of essentiality with which he himself invested it. He is sometimes said to be estopped to do so; but as suggested in Lindquist v. Kansas City Public Service Co., 350 Mo. 905, 169 S.W.2d 366, where an analogous proposition was under discussion, it is more precise to say that he will not be heard to complain of an error which he has himself invited. We think the Rollins Case was intended to be based on that principle. The clue is found in this sentence, 358 S.W.2d l. c. 831: “Plaintiffs chose by instruction 1 to require the jury to find as prerequisite to a plaintiffs’ verdict that while Ricky was sitting on the east curb of Forest the defendant backed his truck upon and over him.”

In the third class of cases, of which this one is the example in point, it will be found that the fact in dispute has never risen to the dignity of a factual issue or essential factual element of plaintiff’s case for the reason that, being neither required by law to hypothesize it nor having elected to do so, plaintiff refrained from submitting it to the jury for determination in her favor as a prerequisite to a verdict for her. Her main instruction reads as follows: “The court instructs the jury that if you find from the evidence on the occasion mentioned in evidence that plaintiff was riding as a passenger in an automobile being operated north-wardly on Highway 61 in a line of traffic, if you so find; and if you further find that at about the same time the defendant Hubert Sitz drove and operated his automobile in a northwardly direction on Highway 61 at about sixty feet to the rear of the automobile in which plaintiff was riding and at a speed of about thirty-five to forty miles per hour, if you so find; and if you further find that thereafter under the aforesaid conditions the automobile in which plaintiff was riding slowed down until it was stopped or almost stopped, and that thereafter the automobile of the defendant collided with the rear end of said automobile and the plaintiff was injured as a direct result of said collision, if you so find; and if you further find that prior to the time that the automobile in which plaintiff was riding started to -slow that the operation by the defendant of liis automobile at a speed of thirty-five to forty miles per hour about sixty feet behind the car in which plaintiff was a passenger was too close and was dangerous and not reasonably safe and a collision was likely to occur should the car in which ■plaintiff was a passenger slow and stop, if .you so find; and if you further find from the evidence that the defendant knew or by the exercise of the highest degree of care should have known that operating his vehicle in said manner was too close and was dangerous and not reasonably safe should the car in which plaintiff was a passenger slow and stop, if you so find; and if you further find that in so operating his vehicle he failed to exercise the highest degree of care and was thereby negligent, if you so find; and if you further find that said negligence directly caused or contributed to cause the collision and injury to plaintiff, then your verdict shall be in favor of the plaintiff and against the defendant.”

The instruction does not require the jury to find whether plaintiff struck the car ahead of her before or after she was hit from behind by defendant’s car (or at all, for that matter), nor does it require a finding as to whether plaintiff’s car was on or partially off the paved slab at the time she was hit. The conflicting evidence as to those details found no place in her instruction. A determination of the dispute over them was not essential to her recovery as a •matter of law, nor did she elect to make it so by requiring the jury to resolve it in her favor. Hence, she cannot be said either to have invited the defendant to hypothesize those details and predicate a verdict in his favor on the jury’s finding he was right about them, or to have estopped herself to complain of the error when he did. Even if the disputed facts had been hypothesized in plaintiff’s instruction we would reserve the right to decide whether they had any real evidentiary significance. Since they were not, no decision is necessary. It may not be amiss to add, however, that in framing the principle by which we hope our decision in this case has been reconciled with that in the Rollins Case, and the two of them with all the other decisions on the subject, we advisedly used the term “eviden-tiary significance” as descriptive of the type of disputed fact which a plaintiff might, by election to hypothesize it in his main instruction, transmute into an essential factual element of his case, it being our purpose to select a term readily distinguishable from the word “essential” in its usual sense, while at the same time laying to rest any notion that a plaintiff’s hypothesis of an accident occurring on Tuesday would warrant the defendant’s submission of an instruction exculpating him if the jury should find that the accident occurred, say, on Wednesday.

We adhere to our original ruling that defendant’s Instruction 7 did not constitute a proper converse of any essential factual element of plaintiff’s case, and that it was vulnerable to the criticism leveled against it. The motion for rehearing is denied.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    D. L. PENDLETON, Jr., Surviving Partner in the Firm of Malcolm E. Strange, and D. L. Pendleton, Jr., dba Strange & Pendleton, Appellant, v. Ruth White STRANGE, Administratrix of the Estate of Malcolm E. Strange, Deceased, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.
    Rehearing Denied Sept. 25, 1964.
    Lewis A. White, Mt. Sterling, Jesse S'.. Hogg, Winchester, for appellant.
    Shumate & Shumate, H. M. Shumate» Irvine, for appellees.
   WILLIAMS, Judge.

A partnership between Malcolm E. Strange and Dwight L. Pendleton, Jr., lawyers and farmers, was formed in September 1951. This is an action to settle the affairs of that partnership which was dissolved by the death of Malcolm E. Strange on September 10, 1959. The issues on appeal involve the ownership of a 568-acre farm and the settlement of the partnership accounts.

Determination of the rights of the parties is complicated because no formal written partnership agreement was entered into. The trial court permitted the surviving partner, Pendleton, to testify concerning transactions made with his deceased partner, hut in his final judgment the court “ * * sustains all objections to the evidence of the plaintiff concerning transactions had with Malcolm E. Strange.” Under the “deadman’s” statute, KRS 421.210(2), the objections were properly sustained, albeit they should have been sustained at the time they were made.

The 568-acre farm was conveyed by Strange in 1949 to his brother. In 1952 the brother conveyed the farm back to Strange but the deed was not recorded. In 1958 an identical deed was executed by the brother to Strange which was recorded. In the meantime two smaller tracts adjoining the 568-acre tract were acquired by the partnership and title was taken in the names of both partners. Title to two city lots was also taken in the names of both partners. It is not dispüted that the two smaller tracts and the two lots are partnership property. The trial court reasoned that had it been the intent of the parties to make the 568-acre tract partnership property the 1958 deed would have so' indicated or Strange would have conveyed a one-half undivided interest to Pendleton by a separate instrument. To bolster this conclusion the trial court pointed out that Pendleton was a notary public' and acknowledged the 1958 deed to Strange. Further, deeds to the other tracts and lots wer.e. made to both partners.

On the other side of the ledger Pendleton showed the 568 acres were obtained in 1952 after formation of the partnership. The consideration for the conveyance was $2,500 evidenced by a promissory note and the assumption of a $7,000 lien note. There is a dispute whether the $2,500 note was signed by Strange alone or by both partners. In any event both signed a renewal note which was later paid out of partnership funds. The original $7,000 note was payable to a man named Rowland and signed by Strange’s brother who owned the property from 1949 to 1952. In 1955 Strange and Pendleton executed a note to Rowland in the amount of $9,793.50 which included the $7,000 note and interest thereon.

Much of the testimony offered by Pendle-ton was admitted over objection that it was self-serving or involved transactions with a dead person. There was competent evidence, however, to show the farm was improved during the time it was operated by the partners; that a transmission line right-of-way easement over it was granted by the partners; that a prospecting and mining rights lease was given by the partners; that the ASC office had assigned the farm a single number and agricultural conservation payments were made to Strange and Pendle-ton; that beginning in 1956 the property was listed for tax purposes in the name of the partnership; that Strange had admitted to various people the farm was partnership property; that working copies of income tax returns showed the farm to be a partnership asset.

The Uniform Partnership Act, which became effective in 1954, does not appear to change the common law partnership principles applicable to this case. The intention of the parties evidenced by their conduct governs what constitutes partnership property. Crane, Partnership, section 37 (2nd Ed. 1952); Holmes v. Stix, 104 Ky. 351, 47 S.W. 243 (1898). Evidence given considerable weight by courts in determining partnership intent, where title is held by one partner, includes use of partnership funds to improve the property, treatment of farm accounts as a partnership asset, use of partnership property to pay claims and expenses, declarations or admissions by the partner with title that the property is a partnership asset, and receipt of income by partnership. Annotation, 45 A.L.R.2d 1009, et seq.

The evidence heretofore recited is persuasive of a finding that the farm was partnership property. However, on the evidence as a whole, there is a doubt whether the property was intended to be a partnership asset. This Court has often said that considerable weight should be given the findings of the chancellor and his judgment will not be disturbed where, on all the evidence, the matter is left in doubt. Wooley v. Mattingly, 204 Ky. 699, 265 S.W. 302 (1924); Frank v. Thompson, 207 Ky. 335, 269 S.W. 295 (1925); Maynard v. Garber, Ky., 357 S.W.2d 547 (1962). There is a presumption against including as a partnership asset real estate owned by a partner which can be rebutted only by a clear manifestation of partnership intent. Sandefur v. Ganter, Ky., 259 S.W.2d 15, 37 A.L.R.2d 1073 (1953).

The evidence most favorable to the heirs establishes that Strange was the sole owner of record of the property at his death. That fact, plus the fact that he had conveyed a one-half interest in other property to Pendleton but had not done so with this property, is sufficient to sustain the findings of the trial court.

Appellant’s second contention is that he is entitled, after adjustments, to $17,579.38 for capital contributed by him in excess of contributions by Strange and for personal funds spent in winding up the partnership. The chancellor found that, since appellant’s accounting was insufficient to show what contributions Strange made in his lifetime, equality of contributions would be presumed.

Mariam Smallwood, who except for four months was the firm’s secretary from September 1955 to September 1959, and is now Pendleton’s secretary, testified that her records from 1955-1960 show Strange was credited with $250 and Pendleton with $28,-888.18. No records supporting these figures were introduced.

There is supporting testimony by the president of a bank that Pendleton contributed substantial sums from sales of stock and personal notes to the account of the partnership. From December 1958 to Strange’s death in 1959, Pendleton deposited at least $15,650 which is substantiated by the records of the bank. The rest of the amount claimed is not sufficiently established by records or testimony of anyone but Pendle-ton. During the same period there were sums of money deposited with no source disclosed.

There are no records of account or written agreements for any period before 1958. The record is silent with respect to capital contributions by the partners from 1951 to 1958. Mrs. Smallwood’s testimony for the period 1955-1960 is not supported by any books of accounting which are sufficient to establish Pendleton’s claim.

In Marcum’s Adm’r v. Marcum, 154 Ky. 401, 157 S.W. 1101 (1913), where a surviving partner sought to prove indebtedness under a verbal partnership agreement, this Court held the surviving partner was incompetent to testify or explain entries in the firm’s account books (except as to their authenticity) unless the books and entries were kept by him. Moreover, the surviving partner was incompetent to testify about any transactions concerning firm checks. Third parties were competent to explain these transactions. The Court, announcing its policy when interest is not proven by competent testimony, said:

“While the interest of each partner is not established by competent testimony, in the absence of such evidence each partner will be presumed to have an equal interest.”

Partnership is a fiduciary relationship. Bogert, Trusts and Trustees, vol. 1, ch. 2, section 36, p. 261 (1951). In the settlement of partnership affairs between a surviving partner and the estate of a deceased partner, the fiduciary relationship requires disclosure of all material facts. Crane, Partnership, section 68, p. 368 (2nd Ed. 1952).

In suits of accounting against trustees, this Court has held that all presumptions are against the trustee on his accounting and all doubts should be resolved against him. Johnson v. Murphy’s Adm’r, 293 Ky. 294, 168 S.W.2d 1022 (1943); Burton v. Clere, 271 Ky. 411, 112 S.W.2d 57 (1937).

At best, the appellant’s accounting is incomplete. Although he has established with competent testimony substantial deposits to the partnership accounts shortly before his partner’s death, there is no explanation of other deposits during the same period. The secretary says that, from a record of charges and credits, Strange contributed $250 during the four years she served. She does not substantiate these figures with any records. The records introduced by her do not support Pendleton’s capital contributions for 1958 and 1959.

Perhaps the dead-man’s statute and the presumption of equality require a harsh result in this case. But the difficulty follows the poorly conducted business affairs of the partnership. A record void of any partnership agreement or records indicating capital contributions by the partners requires a -Court of equity to administer what appears to be the partnership intent.

Based on the lack of evidence, the findings of the chancellor are not contrary to law. Indeed, the chancellor appears to have done a creditable job in his accounting for the partnership in view of the records presented.

The judgment is affirmed. The appellees have cross-appealed only in the event judgment is reversed. Consequently the judgment is affirmed on the cross-appeal.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky on relation of Davis WILLIAMS, County Attorney, Appellant, v. Willie WILSON, Appellee.
    Court of Appeals of Kentucky.
    April 17, 1964.
    Rehearing Denied Sept. 25, 1964.
    Davis Williams, Munfordville, for appellant.
    Mather & Bondurant, Hodgenville, for appellee.
   PALMORE, Judge.

KRS 242.310 through 330 provide for the forfeiture of property used in violation of' the local option laws. KRS 242.340 and 350 provide lesser remedies and penalties in the form of injunction, abatement, imposition of bond, and padlocking.

Following appellee’s plea of guilty and conviction on a charge of illegally possessing alcoholic beverages in dry territory the county attorney sued in the name of the state for the confiscation and forfeiture of the building owned by appellee in which said beverages had been found in his possession. In the alternative, the complaint demanded “that in the event that the plaintiff is not entitled to the relief sought of a confiscation and forfeiture,” the lesser measures set forth in KRS 242.350 be inflicted. The court found that the property had been so used as to constitute a nuisance under KRS 242.310, but in view of mitigating circumstances declined to adjudge a forfeiture and instead ordered the premises to be vacated and padlocked for a period of six months.

From the context of KRS 242.320(1) and 242.350(1) it seems clear that the authority of the court to padlock property rests on exactly the same ground as a forfeiture. It is not suggested that the facts in this case were not sufficient to authorize the padlocking of appellee’s building, and he does not appeal from the judgment. It follows, then, that the facts also sustain the right of forfeiture unless, as appellee contends, it was within the discretion of the court to deny it in favor of the lesser relief under KRS 242.350. The sole question is whether, having alleged and proved the ground for and demanded a forfeiture, appellant was entitled to it as a matter of right.

The factual background of the case is of importance only insofar as it serves to explain and justify the reluctance of the trial court to inflict the harsh remedy of forfeiture. The property in question is a concrete block building in Horse Cave consisting of a restaurant and dance hall downstairs and living quarters above. It is said to be worth about $15,000. For a number of years it was owned and operated by Otis “Jelly Roll” Wilson, appellee’s brother, and in December of 1959, when Jelly Roll conveyed it to appellee, had acquired a bad reputation as a bootlegging joint. Willie, the appellee, had gone to Louisville in 1941 and lived there as a law-abiding citizen until 1959. In the latter year he returned to Horse Cave because his wife was not in good health and because Jelly Roll wanted him to run the restaurant, which he proceeded forthwith to do. Jelly Roll then conveyed the property to him without consideration. According to Willie, the reason for this transaction was that his brother “had trouble with his first wife and was going to get married again and thought he would have the same trouble. Said I am going to deed it over to you so you will have it.”

The raid in which the illegal beverages were discovered on the premises was conducted in April of 1960. Jelly Roll denied any connection with the liquor. Willie wa»’ present and in charge. He pleaded guilty, but says now that the liquor was Jelly Roll’s and that he took the rap because he didn’t want Jelly Roll (who had been convicted of similar charges previously) to go to the penitentiary. He admits, however, that he knew the liquor was there and that Jelly Roll had been bootlegging all the time he (Willie) was there. Though unlettered, Willie was a man of good repute and had not been in trouble prior to his arrest in April of 1960. Jelly Roll, joined originally as a party defendant in this action, is now deceased.

The question to be decided in this case is of first impression under our statutes, and precedents that might be considered as supporting the judgment are limited to various expressions to the effect that such laws are preventive rather than punitive in purpose and are to be strictly construed; or that forfeiture is a drastic remedy and extends only to what is reasonably necessary to abate the nuisance. Schneider v. Commonwealth, 232 Ky. 199, 22 S.W.2d 587, 588 (1929); Bratcher v. Ashley, Ky., 243 S.W.2d 1011, 1014 (1951); Commonwealth v. Covington, 313 Ky. 458, 231 S.W.2d 67, 69 (1950); Froedge v. Commonwealth, 289 Ky. 168, 158 S.W.2d 426, 428 (1942); Barnes v. Commonwealth, 314 Ky. 558, 236 S.W.2d 454, 455 (1951); and Beavin v. Commonwealth, 308 Ky. 522, 215 S.W.2d 119, 121 (1948). Though mindful of these fundamentals, we do not find them dispositive in this instance.

KRS 242.310, which provides that property used or permitted to he used in violation of the chapter shall he forfeited, is rooted in the Acts of 1920, c. 81 § 8. Sections 9 to 14 of that act authorized a hybrid action “to forfeit such property and to perpetually enjoin the said nuisance” and, in § 12, directed that an order of abatement be entered as part of the judgment. Apparently, however, the latter section limited the forfeiture to fixtures and movable property, which explains the combination of both forfeiture and abatement in the same proceeding. The 1920 act was superseded by c. 33, Acts of 1922, the Rash-Gullion or “Bone Dry” Act, and this legislation made no provision whatever for injunction or abatement. With minor exceptions, the forfeiture provisions that now appear as KRS 242.310 to 330, inclusive, were contained in § 13 of the Rash-Gullion Act, and there was no statutory injunctive, abatement or “padlocking” procedure until the present local option law was enacted by c. 1, Acts of 1936.

All of the statutes with which we are here concerned, KRS 242.310 to 350, inclusive, were embraced in two separate sections of the local option law, Acts of 1936, c. 1. The forfeiture provisions, brought forward substantially intact from the 1922 act, are § 24 of the 1936 act, now KRS 242.310 to 330, inclusive. The injunctive and abatement provisions, now KRS 242.340 and 350, were newly introduced as § 25 of the 1936 act.

The majority of us are convinced that these two sections of the 1936 act were intended to provide separate remedies. We know it may be harsh to enforce a forfeiture when the less severe remedy of abatement and padlocking is available. Nevertheless, it is our opinion that the legislature intended the person bringing the suit to have that option. The forfeiture procedure had long existed in the “bone dry” prohibition era and was simply carried into the local option law, at which time injunction and abatement were introduced additionally and separately. It would have been a simple matter for the legislature to vest in the chancellor the discretion of choosing between the two types of relief, or of adjudging some combination of the two, had it so desired. It is, we believe, a significant circumstance that a private citizen who brings a successful forfeiture action is entitled to a 10% fee. If the chancellor had the discretion to deny a forfeiture and padlock the premises instead, the intended incentive for bringing such an action would be greatly reduced if not destroyed.

The principle that forfeiture is designed to be preventive rather than punitive does not mean that in every forfeiture suit the court is to determine whether such a remedy is necessary in order to prevent a continuation or recurrence of that particular nuisance. By its very severity a forfeiture serves not only to end one nuisance at one place but, by example, to prevent others at other places. We feel impelled to respect the legislative intent by preserving the integrity of this remedy.

The cause is reversed with directions that a judgment be entered consistent with this opinion.

MILLIKEN, C. J., and MOREMEN and STEWART, JJ., dissent.

      . KRS 242.230.

      . Emphasis added.

      . This is a physical restriction, pertaining to the amount of property. See Rickman v. Commonwealth, 204 Ky. 848, 265 S.W. 452, 609 (1924), and Froedge v. Commonwealth, 289 Ky. 168, 158 S.W.2d 426 (1942).

      . Carroll’s Ky.Statutes (1922), § 2554a-8.

      . Id., §§ 2554a-9 to 14.

      . Id., § 2554a-9.

      . Id., § 2554a-12, which called for a sale of the chattels and dosing of the premises for one year unless sooner released.

      . Carroll’s Ky.Statutes (1930), § 2554a-13.

      . Which provided that the property “shall become” forfeited, whereas both the 1922 act and the KRS version now in force, KRS 242.310, use the expression “shall be.”

      . KRS 242.330(4).


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jane H. CALLEBS, Administratrix of the Estate of Cecil Callebs, Deceased, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.
    Rehearing Denied Sept. 25, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Pikeville, for appellant.
    Charles G. Cole, Jr., Barbourville, for ap--pellee.
   CULLEN, Commissioner.

Cecil Callebs, driving an automobile on U. S. Highway No. 25E near or in the outskirts of Barbourville, during a windstorm, was killed when a large sycamore tree, standing on the edge of the right of way some 12 feet from the edge of the pavement, fell across the highway upon the automobile. The trunk of the tree broke at a point from four to eight feet above the ground.

Callebs' administratrix filed with the Board of Claims a claim against the Kentucky Department of Highways for wrongful death. The hoard, after hearing extensive evidence, found that there was no negligence on the part of the department and denied the claim. On appeal to the circuit court judgment was entered setting aside the order of the hoard and remanding the case to the board with directions to grant an award of $10,000. The Department of Highways has appealed from that judgment.

The Department of Highways did not have actual notice "of the defective condition of the tree which caused it to break and fall. The issue in the case is whether the department was chargeable with constructive notice of the defective condition, or, stated another way, whether a reasonable inspection would have disclosed the condition. This involves the question of how close an inspection was reasonably required.

The evidence concerning the observability of the defective condition of the tree was conflicting. The Board of Claims chose to believe those witnesses who said that the leaves of the tree were green and the defective condition of the trunk was in the side away from the highway where it could not be seen from the traveled portion of the highway and could have been discovered only by walking around behind the tree, which perhaps would have involved an entry upon private land abutting the highway. The board found as a fact that such were the conditions of observability. The board further found as a fact that the Department of Highways was not negligent in failing to discover the defective condition of the tree.

In order to affirm the circuit court judgment, which set aside the order of the board, we would be required to hold that as a matter of law the Department of Highways had a duty to make a “walk-around” inspection of the tree, involving perhaps an entry on private lands. We do not believe that such is the law.

We have been cited to no authority, nor has our research disclosed any, imposing by law so great an inspection duty on public highway authorities in an area such as here involved. Although the area may have been within the city limits of Barbour-ville, it was not truly urban in character, and in the near vicinity there were wooded hillsides along the road. In such an area we cannot say as a matter of law that the burden of a walk-around inspection of each tree near the highway (perhaps requiring the obtaining of entry permission from the abutting landowners) would not be unreasonable in comparison with the risk.

In Lemon v. Edwards, Ky., 344 S.W.2d 822, we held that as a matter of law a private owner of forest lands adjacent to a little-used road in a sparsely settled area did not have any duty of inspection to discover whether trees had become dangerous through natural processes of decay. And in Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406, we held that the Department of Highways did not have the duty, even along a four-lane main highway near Louisville, to make such a close inspection of cliff sides along the road as would discover that a boulder seemingly safely imbedded had in fact become loosened so as to be liable to fall on the highway. These appear to be the only two comparable Kentucky cases, and they do not lend support to the judgment of the lower court in this case.

Foreign cases are annotated in 11 A.L.R.2d 626 and 14 A.L.R.2d 186. It is sufficient to say that those cases do not support the proposition that public highway authorities under conditions such as existed in the instant case, have as a matter of law a duty to make the kind of inspection that would have been required in this case (under the facts as found by the Board of Claims) to discover the defect in the tree.

The judgment is reversed with directions to enter judgment sustaining the order of ■ the Board of Claims.


author: WADDILL, Commissioner.

text:
    Cecil BURNETTE et al., Appellants, v. Ray MOSS, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Rehearing Denied Sept. 25, 1964.

      L. M. Tipton Reed, Martin, Neely & Reed, Mayfield, for appellants.
    William B. Byrd, Waller, Threlkeld, Whitlow & Byrd, Paducah, for appellee.
   WADDILL, Commissioner.

This appeal is from a judgment of $8,957.95 for injuries sustained by appellee, Ray Moss, in an accident on the farm of appellants, Cecil Burnette and Elmer Hix-son. As we view the case the accident was due solely to the carelessness of Moss.

On the morning of his injury Moss was working with other farmers in a field cutting ensilage. Burnette instructed Howard Powell to drive a tractor pulling an ensilage cutter into this field where another ensilage cutter was already in operation. Powell asked Moss, who often made repairs and adjustments to the machinery used in this work, to get his ensilage cutter ready to operate. Moss connected the drive shaft of the ensilage cutter to the tractor’s power take-off. With the drive shaft thus connected it was possible for power to be transmitted to the ensilage cutter by running the tractor’s engine and placing the power take-off lever in the “on” position.

Since it was necessary to turn the stacker, which directs the flow of silage from the cutter into a wagon, he took out two of the bolts connecting the stacker to the blower housing of the cutter. At this time it became apparent that this machinery was in the way of the other ensilage cutter. Accordingly Moss asked Powell to move his tractor and ensilage cutter a couple of rows over, which he did. Moss then walked over to replace the bolts in the stacker. After Powell turned off the tractor engine, Moss placed his left hand inside the opening at the base of the stacker to insert and tighten the bolts. When he did so the blades inside the blower housing caught and mangled his hand, resulting in the subsequent amputation of his arm below the elbow. According to Moss, Powell was walking around the side of the ensilage cutter when the accident occurred.

The parties agree the blades were not revolving before the ensilage cutter was moved. Two theories were presented at the trial to account for their movement when Moss was injured. One theory was that in going over the rough ground the finely balanced, 700-pound wheel to which the blades are attached was jarred enough to set it in motion. The other theory was that Powell had permitted the power talce-ofif lever to be engaged so as to transmit power to the cutter wheel while he had the tractor motor running. Moss testified that the weight of this wheel would cause it to revolve slowly for a short time after the cessation of its motivating power.

Moss was not entitled to recover under either of these theories because there is no evidence which will support a finding that Powell had negligently operated the machinery or that the power take-off was engaged at any time on the morning of the accident. While negligence may be proved by circumstantial evidence, it is never proper to submit a case to the jury where the finding of negligence would be merely conjectural as it was in this case. McAtee v. Holland Furnace Company, Ky., 252 S.W.2d 427.

Viewing the evidence in its most favorable light to appellee it is as equally consistent with no negligence as it is with negligence and therefore appellee failed to sustain the burden of fastening tortious conduct upon Powell, the alleged employee appellants.

We conclude that the trial court erred in failing to sustain appellants’ motion for a directed verdict. All other questions raised on this appeal are specifically reserved.

The judgment is reversed with directions to enter judgment sustaining appellants’ motion for judgment n. o. v.


author: NOLAN CARTER, Special Commissioner.

text:
    Mary V. WILKINSON, Appellant, v. FAMILY FAIR, INCORPORATED, also known as Family Fair Discount Department Store, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Rehearing Denied Sept. 25, 1964.
    Michael M. Hellmann, Thomas James, II, Louisville, for appellant.
    John L. Bennett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellee.
   NOLAN CARTER, Special Commissioner.

This is an action by appellant, Mary V. Wilkinson, against appellee, Family Fair Discount Store, Inc., to recover damages for leg and back injuries sustained in a fall on a stairway in appellee’s store.

This stairway leads from the first floor of the store to the basement. It is in two sections, divided by a landing. The lower section leading from the landing to the basement runs back in a counter direction to the ripper section, the two sections being divided by a wall. There are handrails running down each side of both sections.

It is necessary for one descending the stairs, upon reaching the landing, to turn sharply to his right and pass around the dividing wall to reach and continue down the lower section to the basement. The view of the lower section of the stairs is entirely cut off by the wall until the turn is made. At the top step of the lower section and on the extreme right as one descends the stairs, there is located a boxlike object or abutment which appears from the evidence to be approximately one foot square. This object extends out level with the floor of the landing and covers almost all of the right portion of the upper step.

On July 7, 1961, appellant, accompanied by her granddaughter, was on a shopping tour on Fourth Street in Louisville. She and her granddaughter entered appellee’s store and proceeded down the stairs to the basement. Appellant had a purse over her left arm and held a shopping bag in her left hand. With her right hand she held the handrail as she descended the steps. When she reached the landing she rounded the corner, reached for the handrail and stepped simultaneously. Her foot hit the object above described. Her leg gave way and she fell down several steps. As a result of this fall her leg and back were injured.

The trial court submitted the case to the jury under instructions that it was the duty of appellee to use ordinary care to maintain the stairway in a reasonably safe condition for its customers, including appellant, and second that it was the duty of appellant to exercise ordinary care for her own safety. The jury returned a verdict for appellant in the sum of $3,000.

Thereafter, appellee moved the trial court for judgment notwithstanding the verdict or, in the alternative, for a new trial.

The trial court entered an order sustaining appellee’s motion for judgment notwithstanding the verdict. From this order appellant prosecutes this appeal.

Appellee’s motion for judgment notwithstanding the verdict and for a new trial were predicated upon several grounds, but it is manifest that the order granting the judgment n. o. v. was entered because it was the opinion of the trial court that the evidence establishes that appellant was guilty of contributory negligence as a matter of law.

For appellee, it is urged that appellant was guilty of contributory negligence as a matter of law because the stairway was well lighted; because appellant admitted, had she looked before she stepped, she could have seen the obstacle; and because appellant had used the stairs previously and knew or should have known of the presence of the obstacle.

We think that these arguments are insufficient to support a finding that appellant was guilty of negligence per se for the following reasons:

Though the stairway was well lighted, the lighting is immaterial, for the obstacle which caused the fall was completely concealed from the view of appellant until she had rounded the wall. No amount of lighting could remedy this situation. While, as testified by appellant, she could have seen the “boxy thing” if she had looked down at her feet after passing around the wall and just as she was about to step, the law is not so harsh as to require that one must look directly down at his feet with each step taken; but only, in the exercise of ordinary care for his own-safety, that he observe generally the surface upon which he is about to walk. See Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405.

Appellant was a business invitee and appellee owed her the duty to maintain the stairs in a reasonably safe condition, which would include having the steps uniform in depth and unobstructed by such obstacles as the one here, located in such position that it could not be seen by one descending the stairs until the wall was passed. An invitee has the right to assume that the premises are reasonably safe, though this does not relieve the invitee of the duty to exercise care for his own safety. See J. C. Penney Co. v. Mayes, Ky., 255 S.W.2d 639; Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598.

However, in the exercise of ordinary care one is not required to look for danger not reasonably to be apprehended; and contributory negligence is not to be imputed to one who fails to look for such danger. See Foreman v. Western Union Telegraph Co., 228 Ky. 300, 14 S.W.2d 1079; Beam v. Calvert, Ky., 277 S.W.2d 35. In the absence of actual knowledge of the presence of the obstruction, certainly its presence upon the stairs could not reasonably have been apprehended. Beyond doubt, such an obstacle located where this was, is a rarity.

Nor do we think that the evidence is sufficient to establish that appellant knew or should have known of the presence of the obstacle. The evidence upon this question is that previously, when the store- was operated by a predecessor to appellee, appellant had used the stairs to the basement. But nowhere in the evidence is it established that at those times the obstacle was present. In fact, it is not established that the stairs were the same as those presently in use.

The judgment notwithstanding the jury verdict is set aside and the verdict is reinstated, with instructions to enter judgment in conformity with such verdict.

Wherefore, the judgment is reversed for consistent proceedings.


author: CHARLES M. ALLEN, Special Commissioner.

text:
    John Stanley MARSH, Appellant, v. F. M. ASHBY, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Rehearing Denied Sept. 25, 1964.
    Ben T. Cooper, Mayer, Cooper & Kiel, Louisville, for appellant.
    Rhodes Bratcher, Bratcher, Rummage & Beard, Owensboro, for appellee.
   CHARLES M. ALLEN, Special Commissioner.

This is an appeal from a judgment upon a jury verdict directed by the trial court awarding the plaintiff $2,500 under the terms of an insurance policy insuring the life of a thoroughbred horse named “Real Country.” The trial court after hearing the evidence for the plaintiff overruled a motion for a directed verdict made by the appellant and upheld the appellee’s motion for a directed verdict. Appellant insists that the trial court should have directed a verdict for it, and appellee has filed a cross-appeal contending that the trial court should have directed a verdict for it for $3,000 instead of $2,500.

The insurance policy in question is a Lloyd’s Livestock Policy. The term of the policy is from April 11, 1961 through April 11, 1962. The insuring clause provides as follows:

“Now We the Underwriters hereby ;agree, to the extent and in the manner hereinafter provided, that in the event ■of the death during the period of this Policy of any animal specified in the .Schedule we will indemnify the Assured in respect of the actual value of ■such animal at the time of the accident .(or the manifestation of the disease or illness) causing its death, up to but -not exceeding the limit of the Under■writers’ liability specified in the Schedule in respect of such animal.”

The policy contained a 30 day extension clause which provided that the insurance covered the death of any animal occurring within 30 days after April 11, 1962 as a result of any accident, disease, or illness occurring during the period of the insurance.

Exclusion No. 1 of the policy reads as ■■follows:

“i. This Policy does not cover intentional slaughter, except that the Underwriters -will not invoke this particular Exclusion as a defence where the Underwriters shall have expressly agreed to the .destruction of the animal, or where a Veterinary Surgeon appointed .by the Underwriters shall first have given a certificate that destruction is necessary to terminate incurable suffering, or where a certificate is given by a qualified Veterinary Surgeon appointed by the Assured that the suffering is incurable and so excessive that immediate destruction is imperative for humane reasons without waiting for the appointment of a Veterinary Surgeon by the Underwriters; provided that in all such cases the Underwriters shall be given the opportunity of having a post-mortem examination carried out by their Veterinary Surgeon should they so desire.”

The horse, Real Country, was injured on April 5, 1962 at Fairmont Park, Collins-ville, Illinois. It suffered a fracture of the navicular bone of its right foot. Notice was given to the insurer on April 6, 1962 of the fact that the horse had been injured. On April 9, 1962 the insurer was notified that the veterinarian at Fairmont Park had x-rayed the injured horse, and that the navicular bone was broken. The horse had been examined on April 5 by both Dr. Brown, the veterinarian for the track, and by Dr. Butzow, who apparently acted on behalf of appellant. Dr. Butzow took the x-rays which revealed the fracture of the navicular bone.

On May 17, 1962, Drs. Brown and Kern wrote plaintiff stating that Real Country’s original injury, to-wit, the fractured navicu-lar bone in the right foot, had developed complications from which there was no cure. They stated that a neurectomy was performed in order to decrease the pain, but that this proved ineffective, and that the horse should have been euthenized.

The horse was not ordered from the track until May 16 or May 17, 1962 and was then taken to a farm near Benton, Illinois where it remained until August 3, 1962. It was then removed to appellee’s farm where it remained until March of 1963 when it was destroyed.

The appellee’s cause of action is predicated upon the theory that the appellant arbitrarily withheld its consent to the intentional slaughter of Real Country. This theory is based on the holding of the United States District Court for the Eastern District of Pennsylvania in the case of Rosen v. Underwriters, 100 F.Supp. 825. In that case the court overruled the motion of the insurer to dismiss the complaint where it was alleged that the insured horse, “Palatine King”, was injured some three weeks prior to the expiration of the policy in such a way as to require immediate destruction, and that the withholding of consent by the insurer was arbitrary, deliberate, and with the sole purpose of prolonging the life of the animal beyond the term of the policy. The policy in that case provided that there was no liability for the intentional slaughter of an animal unless the slaughter was with the consent of the insurers’ veterinarian.

In the case at bar the policy permits intentional slaughter under three alternatives, the third of which provides that when a certificate is given by a qualified veterinary surgeon appointed by the assured that suffering is incurable and so excessive that immediate destruction is imperative without waiting for the appointment of a veterinary surgeon hy the underwriters, then the insurance benefits may be recovered.

In this case there does not appear to be any probative evidence that the insurer arbitrarily withheld its consent to the destruction of the animal. All that is shown is the examination of the horse during the term of the policy and the fracture of its navicular bone. None of the three conditions imposed by the Exclusion Section were met during the period of the policy or even during the period as extended by the 30 days extension clause. It is true that the veterinarians who testified on behalf of the appellant, Drs. Brown and Kern; were of the opinion that the horse should have been destroyed, but this opinion was not rendered until more than 30 days after the expiration of the insurance policy. Appel-lee’s own action in having the horse treated for a period of eleven months after its injury indicates very clearly that he was hoping that the injury suffered by the horse was not of such a serious nature as to warrant its destruction.

Since the appellee did not bring himself within the three exceptions to Section 1 of the Exclusions and did not prove any arbitrary or fraudulent withholding of consent by the appellant to the destruction of Real Country, the trial court was in error in directing a verdict for the appel-lee. The judgment is reversed and the case remanded for a new trial with directions that in the event the evidence is substantially the same as on the first trial, then a directed verdict should be given for the appellant.

The cross-appeal of the appellant is without merit. The policy in question provides no benefits other than $2,500 life feature. The trial judge was correct in not allowing the appellee to recover for the expense of feeding and caring for the horse during the period of its illness.

It is our opinion that the judgment should be reversed and remanded for new trial on appeal and affirmed on cross-appeal.-

The opinion is approved by the Court and the judgment is reversed to the extent indicated herein with directions to grant a new trial for proceedings not inconsistent with this opinion.


author: COLEMAN, Justice.

text:
    Clifford L. BERGLUND et ux., Appellants, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. 14381.
    Court of Civil Appeals of Texas. Houston.
    June 25, 1964.
    Rehearing Denied Sept. 10, 1964.

      Miller & Gann, Ralph K. Miller, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Charles D. Boston, J. S. Coving-ton, Jr., Houston, for appellee.
   COLEMAN, Justice.

This is a suit to recover on two insurance policies the stipulated value of a dwelling, its contents, and a boat house, which were completely destroyed in September, 1961, during Hurricane Carla.

The case was submitted to the jury on six special issues. Special Issues Nos. 1 and 2 read as follows:

“Special Issue No. 1
“Do you find from a preponderance of the evidence that no damage to Plaintiff’s dwelling at Bayou Vista was caused by or resulted from flood, surface water, waves, tidal water or tidal wave, or spray from any of the foregoing, whether driven by wind or not ?
“Answer: ‘No damage was so caused, or resulted’
or
‘Damage was so caused or resulted’'
“If you have answered Special Issue No. 1 ‘Damage was so caused or resulted’, and only in that event, then answer :
“Special Issue No. 2
“What do you find to have been the-percentage of the damage to Plaintiff’s, dwelling which was caused by or resulted from such flood, surface water,, waves, tidal water or tidal wave, or spray from any of the foregoing,, whether driven by wind or not, if you have found that damage to Plaintiff’s, dwelling was caused by or resulted from such force?
‘-‘Answer by stating the percentage,, if any you find, in figures from zero (0%) to one hundred (100%) percent.”

Similar issues were submitted with reference to the boat house and the contents of the dwelling. The jury found that water caused 70% of the damage to the dwelling,. 95% of the damage to the contents and 100% of the damage to the boat house. Judgment was entered based on this verdict.

Appellants’ Points of Error are to the effect that there was no evidence, or insufficient evidence, to warrant the submission of the issues contained in the court’s charge, and that the jury’s answers to those issues are contrary to the great weight and preponderance of the evidence, and that the trial court erred in failing to submit certain requested issues.

Basically it is appellants’ position that the trial court erred in the manner of submitting the cause to the jury because:

“(1) The proximate cause of their loss was a peril insured against- — windstorm or hurricane — and that the immediate cause of the loss is immaterial, provided such windstorm or hurricane .set in motion a series of events which, unbroken by any new and independent cause, produced such loss and without which the loss would not have occurred.
“(2) Water is a necessary, integral and inseparable component part of a hurricane and, therefore, damage cause by ‘hurricane water’, as distinguished from floods, surface waters, tidal waves, etc. or other ‘non-hurricane water’, is a risk insured against under the proper •construction of Appellee’s insurance policies.
“(3) Since the undisputed evidence establishes that one or more of the perils insured against — hurricane or windstorm — was the proximate cause of the loss, Appellants are entitled to judgment for the stipulated amount of their loss.”

The court submitted the case to the jury on the theory that all of the damage suffered by the insured properties, the amount of which was stipulated, was covered by the insurance policies unless the damage was caused in whole or in part by perils excluded from coverage by the policies.

It is clear from uncontroverted testimony that during the night when the house was swept away, tidal water about five feet deep covered the area near the house. There were wind-driven waves and spray present at all times. The jury might have accepted the testimony that the winds had not reached hurricane force at the time the house was destroyed. Expert testimony was presented to the effect that wind-driven waves are much more destructive than wind alone because the mass or weight of the water is much greater than that of wind.

Appellant requested that the trial court submit to the jury the following issue: “No. A. Do you find from a preponderance of the evidence that Hurricane Carla was the proximate cause of the damage to the dwelling house of Clifford L. Berglund and wife, Robbie Mae Berglund?” In connection with this issue the following definitions were requested:

“You are instructed that the term ‘proximate cause’, as used in this charge means the actual and dominant cause which sets in motion a series of events and which, unbroken by any new and independent cause, produces an event without which the event would not have occurred.”
“By the term ‘new and independent cause’, as used in the foregoing definition of ‘proximate cause’, is meant the act or omission of a separate and independent agency which destroys the causal connection between the original cause and the event in question and thereby becomes, in itself, the actual cause of such event.”

These issues and definitions were requested in line with appellants’ theory that losses proximately caused by hurricanes are covered by the policies, and that the exclusions do not apply to losses resulting from the combined action of covered and excluded perils, i. e., hurricane winds and tidal waters, waves, etc., or partially from a covered peril, i. e., hurricane, and partially from an excluded peril, i. e., flood or surface waters, where the excluded perils were set in motion or activated by the hurricane. It has also been suggested that an insurance policy specifically offering protection against loss by hurricane necessarily protects against loss from surface water, tidal water, waves and spray since these things are as much a part of a hurricane as are the turbulent winds.

In United States Insurance Co. of Waco v. Boyer, 269 S.W.2d 340, the Supreme Court of Texas stated:

“In construing contracts, the time-honored method of the courts has been to search for the intent of the parties and this is true in cases construing insurance contracts just as in other contracts. While undoubtedly in the early days of the insurance business the actual intent of the immediate parties to the contract was material, now with the insurance business regulated and the policy forms prescribed by a State Insurance Commission, the court in construing a policy determines the every-day meaning of the words to the general public — the meaning of the words ‘in common parlance’ — ‘the usual and popular understanding of the term.’ American Automobile Ins. Co. v. Baker, Tex.Civ.App., 5 S.W.2d 252, supra. * * * Therefore, a true search for what the courts usually speak of as the intent of parties will not be an inquiry as to what the words of the contract meant to this particular insurer or insured. It is, first, an effort to determine the ordinary lay meaning of the words to the general public, and, in the light of this meaning, it is, second, an examination of the choice the purchaser had and the choice he made. Glen Falls Ins. Co. v. McCown, 149 Tex. 587, 236 S.W.2d 108.”

Section 1 of the policy provides that subject to the provisions and conditions of the policy, the Company insures the named insured against loss, including expenses incurred in the removal of debris resulting from such loss, from any of the Perils Insured Against. In a section entitled “Perils Insured Against” coverage for the dwelling is provided for “all risks of physical loss except as otherwise excluded.” It is obvious from the wording of the paragraphs on “Deductibles” that one of the risks contemplated when this policy form was drafted was the risk of damage to a dwelling by reason of a hurricane. In Section 1 there is the further provision under the heading “Exclusions” that this insurance does not cover “loss caused by or resulting from flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water or spray from any of the foregoing, all whether driven by wind or not.”

A possible construction of this policy is that the Company agrees to pay for all loss suffered by the dwelling caused by .the risk of hurricane unless that risk is otherwise excluded. The Company does not agree to pay for loss caused to the dwelling by certain risks such as flood, or tidal water. The.Company agrees to pay for all of the loss caused by a risk which' is not excluded by the terms of the policy. The risk of a loss by reason of hurricane was not excluded. The risk of loss caused by flood waters or tidal waters was excluded. The quest, therefore, must be to determine the actual and dominant peril which destroyed the dwelling. If in this case the hurricane set in motion the series of events which, unbroken by the intervention of any new and independent cause, led to the destruction of the building, the loss was covered by the policy of insurance notwithstanding the fact that some of the loss-probably resulted from surface water, waves, and tidal water driven by wind. United States Ins. Co. of Waco v. Boyer, supra; Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379; Farmers Insurance Exchange v. Wallace, Tex.Civ.App., 275 S.W.2d 864, ref., n. r. e.; Providence Washington Ins. Co. v. Cooper, Tex.Civ.App., 223 S.W.2d 329, ref., n. r. e.; Fireman’s Ins. Co. v. Weatherman, Tex.Civ.App., 193 S.W.2d 247, ref., n. r. e.; American Indemnity Co. v. Haley, Tex.Civ.App., 25 S.W.2d 911, writ dism.; Anno., 93 A.L.R.2d 147, et seq.

We have carefully examined the cases relied on by appellee, and particularly Coyle v. Palatine Ins. Co., Tex.Sup., 222 S.W. 973, and are of the opinion that they are not controlling because of the different language found in the insurance policies being construed. In the Coyle case the court found that the risk insured against was “all direct- loss or damage by tornado, windstorm or cyclone”, and that the policy expressly excepted from such risk “any loss or damage occasioned directly or indirectly by or through any * * * tidal wave * * * high water * * * overflow,” and “any loss or damage caused by water or rain, whether driven by wind or not, * * * ” (emphasis added) The court then held that since the damage in dispute resulted from the combined action of wind and water, even though the wind was the cause of the action of the water, no liability arose under the express provision of the policy that “the insurer was not to be responsible for any damage, whatever, due to the action of water caused by the wind.” The court then said:

“Therefore, the rule invoked, that where there is no order of succession in time and there are two concurrent causes of a loss in which the damage done by each cannot be distinguished, the predominating cause will be deemed the proximate cause, can have no application. The water as a concurrent cause, or as any element in the cause, which produced the loss, is by the contract put out of the case.”

We do not interpret the contract involved in this case as eliminating loss caused by water, unless water is the dominant and efficient cause of such loss.

The issues requested by appellants were ultimate issues and the trial court erred in refusing to submit them to the jury.

If the evidence raises a question as to whether part of the damage to personal property was caused by wind-driven rain, an appropriate issue establishing the proportionate part of the loss so caused should be submitted to the jury since the policy specifically provides that there would be no coverage in case of loss to personal property due to wind-driven rain, where a loss has been, suffered by reason of hurricane or windstorm, except where the wind first makes an opening in the walls or roof of the house.

It will be noted that this provision, relating to loss caused by a hurricane or windstorm, also excepts from the coverage of the policy loss to cloth awning, green houses, windmills, radio and television towers, etc. Here items of damage are excluded from coverage as contrasted with exclusion “d” relating to flood, surface water, tidal water, etc., where risks of damage are excluded.

The policy covering loss to the boat house names the risks, including hurricane and windstorm, insured against, and provides: “ * * * the Company shall not be liable for loss caused by * * * tidal wave, high water, or overflow, whether driven by wind or not.” Loss caused by rain, whether driven by wind or not, was also excluded. These provisions were made applicable only to hail, windstorm and hurricane. Issues Nos. 5 and 6 were properly submitted over the objection that such issues were not raised by the evidence. While from the evidence the jury might reasonably have found that all of the damage was caused by high water or overflow, the evidence also leaves little doubt but that these conditions were brought about by the hurricane. Apparently it was contemplated that during hurricanes and windstorms there would be ram, and, in some places, high water and overflow water. Appellants contend that diese conditions always accompany hurricanes, and we are persuaded that this contention is correct only in so far as the immediate coastal areas and low lying, poorly drained areas are concerned. But such conditions accompanying hurricanes can be anticipated in certain areas and, apparently, have been anticipated, and the exception under discussion has resulted. The part of the damage that results solely from the cause excluded must be determined. Policies of insurance are construed liberally in favor of the insured and exceptions and limitations on liability will be strictly construed against the insurer. Providence Washington Ins. Co. v. Proffitt, supra. Since the case must be reversed and retried, we point out that only high water, overflow, tidal wave, and rain, whether wind driven or not, are excepted by the terms of the policy. The term “tidal wave” has a well-defined meaning and there is no evidence that damage could be attributed to such a cause. The charge should follow the terminology of the policy, but should submit only such elements as are raised by the evidence.

Since a retrial of this cause will be required, we think it unnecessary to discuss the Points relating to the sufficiency of the evidence to support the jury verdict.

The judgment of the trial court is reversed and remanded.


author: GREEN, Chief Justice.

text:
    SARAH COVENTRY, INC., Appellant, v. BLANCH-ETTE, INC., Appellee.
    No. 58.
    Court of Civil Appeals of Texas. Corpus Ghristi.
    Aug. 20, 1964.
    Rehearing Denied Sept. 10, 1964.

      Nowlin Randolph, Houston, for appellant.
    Henry P. Giessel and Don T. Weitinger, of Talbert, Giessel, Cutherell, Barnett & Stone, Houston, for appellee.
   GREEN, Chief Justice.

Appellant Sarah Coventry, Inc., filed this suit alleging that appellee Blanch-Ette, Inc., defendant below, was engaged in a conspiracy to induce large numbers of appellant’s employees to break their contracts of employment with appellant for the purpose of becoming associated with appellee. Actual and exemplary damages were sought, and also an injunction enjoining appellee from initiating any action of a personal nature to solicit, recruit or in any manner induce employees of appellant to leave its employment or service. Based upon a jury verdict, judgment was rendered for the appellee denying all relief sought by appellant. We affirm the judgment.

This appeal is predicated upon alleged errors relating to purported prejudicial and inflammatory jury arguments by appellee’s attorneys and upon newly discovered evidence. Points of Errors Nos. 1 to 16 inclusive deal with the jury arguments and will be disposed of together.

The arguments complained of are in the record on appeal only by way of an exhibit attached to the Amended Motion for a New Trial. This exhibit purports to be a transcription of the jury arguments of all the attorneys, certified to be correct by the court reporter. There is no agreement between counsel on the jury arguments, and no certification by the trial court. No objections were made to the arguments of appellee’s attorneys in the trial court. No bills of exception were prepared by appellant’s attorney as to any portion of such arguments and submitted to the trial judge for his approval or qualification.

Appellee has filed with us a motion to strike the record of the jury argument from the transcript based on the proposition that in the absence of an agreement between the attorneys, and of bills of exceptions, such argument is not properly a part of the record. We sustain appellee’s motion. In Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506, writ ref. n. r. e., a similar motion was sustained even though the trial court did certify to the correctness of the transcription of the jury arguments, the Court of Civil Appeals holding that in the absence of bills of exceptions and of counsel's agreement, points of error concerning jury argument cannot be considered by the appellate courts.

As stated in the opinion in that case, any indefiniteness in that rule has now been set to rest by our Supreme Court in Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46, from which we quote as follows :

“The complaint as to the argument was not preserved in the proper way, that is, by a bill of exceptions. While the correctness of the excerpts from the court reporter’s notes was not challenged, this is not tantamount to an agreement on the part of opposing counsel to bring forward for review the objections to the argument by any other method. Only when the complaining party has presented the matter in a bill of exceptions is the opportunity afforded to his adversary and to the court for the addition of any appropriate qualification that might render harmless argument that otherwise would be improper or prejudicial. This rule has been almost unanimously adhered to. Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139; Hartford Accident & Ind. Co. v. Ethridge, Tex.Civ.App., 149 S.W.2d 1040; Associated Employers Lloyds v. Wynn, Tex.Civ.App., 230 S.W.2d 838; Hayter Lumber Co. v. Winder, Tex.Civ.App., 295 S.W.2d 730.”

Pritchett v. Highway Insurance Underwriters, supra, has been cited and followed on this proposition of law in many opinions, including Brock v. Graham, Tex.Civ.App., 321 S.W.2d 593, n.w.h.; City of Dallas v. Riddle, Tex.Civ.App., 325 S.W.2d 955, writ ref. n. r. e.; Bolstad v. Egleson, supra; Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Co. v. Tatom, Tex.Civ.App., 342 S.W.2d 25, writ ref. n. r. e.; Mikell v. La Beth, Tex.Civ.App., 344 S.W.2d 702, writ ref. n. r. e.; County of Bexar v. Cooper, Tex.Civ.App., 351 S.W.2d 956, n.w.h.; Connecticut Indemnity Co. v. Trejo, Tex.Civ.App., 366 S.W.2d 948, n.w.h.; Dillon v. Moore, Tex.Civ.App., 367 S.W.2d 70, n.w.h.

Appellant submits that appellee’s Motion to Strike cannot be considered by us because it was filed more than thirty days after the filing in this court of the transcript and statement of facts, citing Rule 404, Texas Rules of Civil Procedure, and Pacific Fire Ins. Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486. In that case the Supreme Court held that the failure of the statement of facts to be approved by the trial court was one of the informalities in the manner of bringing a case into court contemplated by Rule 404, T.R.C.P., and that failure to file objections within the thirty day period waived the defect.

As noted, Rule 404 refers to infor-malities in the manner of bringing a case into court and does not concern the proper assignment of errors after the case is brought into court. Appellee’s motion does not contest the fact that this case is properly on file in our court. The motion is addressed to the legal proposition that certain alleged errors are not properly before the court because not presented in the manner required by law. The preparation, presentation to the trial court, and filing of a proper bill of exception is not an informality, but is a formal way of preserving claimed error. Rule 372, T.R.C.P.

Regardless of appellee’s Motion to Strike, we would not be authorized to consider appellant’s Points 1 to 16 inclusive in view of the authorities cited above. In this connection, the court in Connecticut Indemnity Company v. Trejo, supra, said:

“While appellee has filed no motion to strike the purported bill of exceptions, it is not properly a part of the record and cannot be considered by this Court.”

Since the jury argument of counsel is not properly before this court by way of bills of exception, we shall not consider appellant’s Points of Error 1 to 16 inclusive.

Appellant’s Seventeenth Point of Error reads as follows:

“The trial court erred in overruling appellant’s amended motion for a new trial because appellant was entitled to such new trial for newly discovered evidence, being the contract between appellee and its former sales manager, Mrs. Peg Coco.”

What appellant offers as its newly discovered evidence is the employment contract between Blanch-Ette, Inc. and its national sales manager, Mrs. Peg Coco, dated January 30, 1962, with particular emphasis on the paragraph of said contract under the terms of which she is prohibited for one year from working in the same or similar line of business in fourteen named states, and is precluded without limitation of time from soliciting or in any manner attempting to induce appellee’s dealers, sales people or employees to sever their relationships or dealings with appellee, and from furnishing anyone with any of the company’s sales material, records, names of employees, dealers or customers.

Appellant’s contentions as to the materiality and relevancy of this evidence, so important, he says, as to require this court to grant a new trial, are summarized in his brief as follows:

“The newly discovered evidence is vital when considered against the background of appellee’s theory of the case. Appellee had pleaded, in effect, that the appellant by restrictive courses and threats of filing lawsuits and oppressive conduct generally had tried to limit the freedom of its employees. The appellee made much of the written contracts of the appellant and charged that appellee was fairer in its own course of dealing with its personnel.”

Appellant’s counsel testified at the hearing on his Amended Motion for a New Trial concerning his assignment on newly discovered evidence. He admitted that during the trial of the case he learned of the restrictive employment contract between ap-pellee and Mrs. Coco. The statement of facts of the evidence on the trial on the merits shows that on cross-examination of Mrs. Blanche Viano, principal owner and head of appellee, he asked her if it wasn’t a fact that appellee and Mrs. Coco were having a controversy at that very time over the rights of the parties under Mrs. Coco’s contract. (She was no longer in appellee’s employ.) It appears very probable that had counsel wished he amid have learned more about this contract by further cross-examination of Mrs. Viano.

“A new trial will not be granted on the ground of newly-discovered evidence, unless it is made to appear that it has come to the knowledge of the applicant since the trial; that it could not have been sooner discovered by the exercise of diligence; that it is not merely cumulative; that it is not for the purpose of impeachment.” Conwill v. Gulf, C. & S. F. Ry. Co., 85 Tex. 96, 19 S.W. 1017, quoted with approval by our Supreme Court in New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864.

Such evidence must, of course, be admissible, and of such a character as will probably change the result if produced on another trial. 41 Tex.Jur.2d, New Trial, pp. 289 et seq., and cases cited.

Whether the motion for a new trial based on new evidence met the above conditions was a matter largely addressed to the discretion of the trial judge, and unless it appears to us that his discretion was abused, we should not disturb his decision. San Antonio Gas Co. v. Singleton, 24 Tex.Civ.App. 341, 59 S.W. 920, writ ref.; Texas Employers Ins. Ass’n v. Moser, Tex.Civ.App., 152 S.W.2d 390, n.w.h.; Vance v. Obadal, Tex.Civ.App., 256 S.W2d 139, writ ref.; Wofford v. Miller, opinion rendered by this court July 29, 1964, 381 S.W.2d 640.

We are of the opinion that the evidence adduced upon the hearing on the motion for new trial raised fact issues as to appellant’s diligence, or lack of it; of the materiality of the offered evidence; of the matter of whether it would be merely cumulative of other testimony; as well as to the probable effect of such evidence upon the result, should a new trial be granted. We presume that the trial court found against appellant upon these issues in overruling its motion. New Amsterdam Casualty Co. v. Jordan, Supreme Court, supra; Texas Employers Ins. Ass’n v. Moser, supra.

The trial court did not abuse its discretion in overruling the assignment concerning newly discovered evidence contained in appellant’s motion for new trial. Appellant’s Seventeenth Point of Error is overruled.

Judgment affirmed.