author: STONE, Judge.

text:
    Billy D. LANE, Plaintiff, v. Osby E. WILSON, Defendant and Cross-Claimant-Appellant, and Gene Arthur Fields, Defendant-Respondent.
    No. 8353.
    Springfield Court of Appeals. Missouri.
    May 20, 1965.

      J. V. White, Rolla, J. W. Grossenheider, Lebanon, for defendant and cross-claimant-appellant.
    Northern & Crow, Rolla, for defendant-respondent.
   STONE, Judge.

Billy D. Lane, as plaintiff, instituted suit against Osby E. Wilson and Gene Arthur Fields, as defendants, to recover damages for personal injuries alleged to have been sustained by Lane in a collision between a motorcycle driven by Wilson, on which Lane was riding as a passenger, and an automobile driven by Fields. In due time, defendant Wilson filed a cross-claim against codefendant Fields [V.A.M.R. Rule 55.49], in which Wilson sought damages of $12,-000 for personal injuries alleged to have resulted from the same collision. Thereafter, plaintiff Lane dismissed his petition as to both defendants, and Wilson’s cross-claim came on for trial before the court and a jury. At the close of the evidence offered by cross-claimant Wilson, defendant Fields’ motion for a directed verdict was granted by the trial court. V.A.M.R. Rule 72.01. After unavailing motion for a new trial, cross-claimant Wilson has perfected this appeal from the adverse judgment entered upon the verdict thus directed.

The only negligence alleged in the cross-claim was that defendant Fields had failed, under the humanitarian doctrine, to avert the collision “by swerving his automobile to its right.” In granting defendant’s motion for a directed verdict, the trial court: found “no evidence of any probative force from which the jury could determine when [cross-claimant] Wilson came into a position of imminent peril” and “no evidence to support” the single assignment of negligence in the cross-claim. Since the sole issue raised in cross-claimant’s motion for a new trial and presented on this appeal is whether he made a submissible case under the humanitarian doctrine for defendant’s alleged failure to swerve to the right, a detailed statement of facts is required.

Our factual review is with appropriate recognition of the basic rule that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to cross-claimant and must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence [DeLay v. Ward, 364 Mo. 431, 439, 262 S.W.2d 628, 633(3); Ornder v. Childers, Mo., 327 S.W.2d 913, 915(1); Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(8)], tempered only by the sensible and sound limitation that this rule calls for consideration of all the facts shown by cross-claimant and not merely a part of them isolated from the remainder, and that the rule does not require the court to supply missing evidence, or to disregard the dictates of common reason and accept as true that which, on the whole record, obviously is not true, or to give cross-claimant the benefit of inferences which are not reasonable. Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, 235(2).

The time of accident was about 3:30 P.M. on Sunday, May 20, 1962, a dry, sunshiny day. The place of accident was on a graveled country road (which, in the interest of descriptive clarity, we treat as running north and south) about 4}^ miles north of Duke in the southwest corner of Phelps County, Missouri. With Lane riding as a passenger, cross-claimant, then 16 years of age, was northbound on a 1953 Harley-Davidson motorcycle, which he had operated previously and “knew how to handle,” en route from Duke to the farm home where he resided with his parents. His brother, Vernon Wilson, then 19 years of age, was in an automobile following the motorcycle at a distance of about 200 feet. Both cross-claimant and his brother placed the speed of the motorcycle at 20 to 25 miles per hour.

The other vehicle involved in the accident was a southbound 1959 Ford driven by defendant Fields, then 22 years of age, of O’Fallon, Missouri. Accompanied by his bride, defendant was on his honeymoon, “going on a fishing trip,” and as he approached the point of accident (so he said) was “going pretty slow” at an estimated speed of 10 to 15 miles per hour because he was “lost.” Cross-claimant thought that, when he first sighted defendant’s automobile, it was traveling about 20 miles per hour.

The collision occurred on what cross-claimant’s brother described as “a pretty sharp curve,” which was a curve to the left for northbound vehicles such as the motorcycle and a curve to the right for southbound vehicles such as defendant’s automobile. On and near the curve, there were three ruts or tracks in the graveled surface of the road; and, although none of the witnesses undertook to estimate elevations or the distance from any track to either edge of the road, cross-claimant’s photographic exhibits sufficiently demonstrate that, as is usually true, the elevation on the outside of the curve was somewhat higher than the elevation on the inside, the west rut or track hugged the inside of the curve and was quite close to the west edge of the road, and the middle rut or track was on the west side of the imaginary center line of the road.

Cross-claimant readily conceded that, when he entered the south end of the curve, his northbound motorcycle was in the west rut or track, thereby placing him on the inside of the curve and on his left-hand and wrong side of the road. While thus traveling in the west rut or track, cross-claimant sighted defendant’s approaching southbound automobile, then 200 to 300 feet distant and admittedly on its right-hand or west side of the road with its right wheels in the west rut or track and its left wheels in the center rut or track. Cross-claimant’s reaction, upon sighting defendant’s automobile, was to turn to his right, or toward the east — “I went to my side as fer (sic) as I could get and I hit loose gravel and I couldn’t make it any further.” His brother, following the motorcycle, “saw the boys lean it [the motorcycle] over to get it over on their side, and then I seen the car, and then they hit two or three seconds after.” The motorcycle struck the outside left dual headlight on the automobile. There was no evidence as to whether the speed of the motorcycle had slackened prior to the crash.

The precise point on the road, at'which the impact occurred, was in dispute. Defendant stated that, although already hugging the inside of the curve on his right-hand side of the road, he “pulled” even farther to his right and brought his automobile to a complete stop prior to the crash. This would have placed the point of impact several feet on the west (defendant’s right-hand) side of the imaginary center line of the road. Cross-claimant’s version of the facts, accepted by us in ruling the issue of submissibility, was that the collision occurred on his right-hand side of the road. The character of the testimony to this effect is exemplified by cross-claimant’s statements that “I seen it [defendant’s automobile] swerve and come to my side” and that, “when I first seen him [defendant] he cut the car and I judge that the rear end stayed about two feet [from the west ditch] and the front end come over on my side of the road.” In like vein, cross-claimant’s brother said that, at the moment of collision, defendant’s Ford “was sittin’ kinda catty-cornered up towards the middle of the road” with “the front end up towards the middle” and the rear end “about two foot, I guess,” from the west ditch. The location of the point of impact with reference to the imaginary center line was not established more definitely by cross-claimant’s oral evidence. However, cross-claimant and his brother did fix the point of impact on one of the photographic exhibits, both by marking an “X” on, and by punching a pinhole in, the exhibit; and, although this obviously does not permit of a precise location of the point, it does enable us to say with assurance that, if in fact the collision occurred on cross-claimant’s right-hand side of the road (as to which the exhibit standing alone would leave us in doubt), the point of impact must have been quite near to the imaginary center line.

Regardless of the precise location of the point of impact, it is clear that defendant had brought his automobile to a complete stop prior to the collision. The only evidence on this subject was defendant’s positive testimony to that effect; and, in the course of trial, it was brought out that cross-claimant had so admitted in his pleadings.

As a result of the collision, cross-claimant and his passenger were thrown from the motorcycle (one witness said for a distance of 50 to 75 feet), and the cycle not only was “demolished” but also “caught on fire.” Although the injuries suffered by cross-claimant are not material on this appeal and the medical evidence was omitted from the transcript, it may not be inappropriate to record that the lay testimony indicated that his principal injuries were compound fractures of both legs.

The first and basic fact of liability under the humanitarian doctrine is a position of imminent peril. Banks v. Morris & Co., 302 Mo. 254, 267, 257 S.W. 482, 484; Hendrick v. Kurn, 352 Mo. 848, 850, 179 S.W.2d 717, 719; Anderson v. Prugh, 364 Mo. 557, 565, 264 S.W.2d 358, 364(8). “The peril truly must be imminent — that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril.” Blaser v. Coleman, 358 Mo. 157, 160, 213 S.W.2d 420, 421(2); Kelley v. St. Louis Public Service Co., Mo., 248 S.W.2d 597, 602; Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 583(13). And it is only when such imminent peril arises that the humanitarian doctrine, blotting out antecedent negligence, seizes upon the then existing situation and imposes the duty thereafter to exercise proper care to avoid inflicting the threatened injury. Ornder v. Childers, supra, 327 S.W.2d at 916(3); Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930(3); Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 683(4).

Whether and when one becomes chargeable with notice that another is in a position of imminent peril depends upon the reasonable appearances of the situation confronting him. In short, “‘[i]t is the reasonable appearances of the situation that imposes the duty to act.’ ” Faught v. Washam, Mo., 329 S.W.2d 588, 597, and cases cited in footnote 12; Daniels v. Smith, Mo., 323 S.W.2d 705, 710(5); Nored v. St. Louis Public Service Co., Mo., 319 S.W.2d 608, 611; Wilson v. Toliver, Mo., 305 S.W.2d 423, 429; Farmer v. Taylor, Mo.App., 301 S.W.2d 429, 432(4). Hence, what constitutes a position of imminent peril varies according to, and must be determined in the light of, the facts and circumstances of each particular case. Yarrington v. Lininger, Mo., 327 S.W.2d 104, 110(9); Elkin v. St. Louis Public Service Co., 335 Mo. 951, 956-957, 74 S.W.2d 600, 603; Kasperski v. Rainey, Mo.App., 135 S.W.2d 11, 14(4).

Under cross-claimant’s factual version, what were the reasonable appearances of the situation when defendant first sighted cross-claimant? Defendant, on the extreme west (his right-hand) side of the road and proceeding at a moderate speed of about 20 miles per hour, saw cross-claimant on his motorcycle approaching at a similarly moderate speed of 20 to 25 miles per hour. Although cross-claimant also was on the west (his left-hand) side of the road, he obviously and admittedly was then in complete control of his motorcycle and was not oblivious. Certainly, the speed of the motorcycle did not indicate recklessness, want of control, or inability to turn. Cf. Findley v. Asher, Mo., 334 S.W.2d 70, 73. With the two vehicles then 200 to 300 feet apart and traveling at the stated speeds, cross-claimant undoubtedly had sufficient time and space within which to turn his motorcycle from the pathway of defendant’s automobile (as was confirmed by his positive testimony that, prior to the collision, he did turn from his left-hand side of the road to his right-hand side thereof), and defendant then had a right to assume that cross-claimant would so turn. McGuire v. Steel Transportation Co., 359 Mo. 1179, 1184, 225 S.W.2d 699, 702(4, 5); Moore v. Middlewest Freightways, Inc., Mo., 266 S.W.2d 578, 582(2); Keely v. Arkansas Motor Freight Lines, Mo., 278 S.W.2d 765, 769; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648(16); Bunch v. Crader, Mo.App., 369 S.W.2d 768, 773(10); Columbia Taxicab Co. v. Roemmich, Mo.App., 208 S.W. 859, 862(2). We conclude that cross-claimant was not then (i. e., when he first sighted defendant’s automobile) in a position of imminent peril within the contemplation of the humanitarian doctrine. See particularly Standard Oil Co. v. Crowl, 8 Cir. (Mo.), 198 F.2d 580, 582.

For that matter, as we understand the printed brief and oral argument of his counsel, cross-claimant’s principal contention is not that he was in a position of imminent peril when he first sighted defendant’s automobile 200 to 300 feet distant, but rather that he thereafter came into such position of imminent peril by reason of two circumstances, namely, (1) that defendant swerved to his left so that the left front portion of his automobile was across the imaginary center line of the road when he stopped, and (2) that cross-claimant, although having returned to the east (his right-hand) side of the road, skidded or lost control in loose gravel and for that reason was unable to move farther to his right and avoid collision with the then stationary automobile. So, the complaint of cross-claimant’s counsel in their brief is that: “He [defendant] further admits that [after stopping his automobile] he remained in this position with his motor running and his car [transmission] in drive position from two to four seconds until this motorcycle which was traveling twenty to thirty miles per hour struck the left front fender of his car. Obviously, when [defendant] Fields stopped his car, if [cross-claimant] Wilson was not then in a position of imminent peril, sometime during the next four seconds while the motorcycle (traveling 29 feet per second) went 116 feet, Wilson did come into a position of imminent peril. Again, by his own admission, Fields testified that in order to turn his car to its right while he was sitting there in the road, he merely had to place his foot on the accelerator and turn his steering wheel to its right; so it would seem that he had the means at hand with which to have avoided this collision.” Otherwise cast, cross-claimant’s charge is that he came into a position of imminent peril after defendant’s automobile had stopped and that defendant was guilty of humanitarian negligence in failing thereafter to put his automobile in forward motion again and swerve to his right.

In pressing this theory, cross-claimant’s counsel point to certain bits of testimony elicited from defendant (called by them as an adverse witness) to the effect that, immediately prior to the collision, his automobile remained stationary for “from two to four seconds” with the motor running and the gearshift lever in “drive” position. Taking defendant’s testimony as a whole, as we must do [Dimond v. Terminal R. R. Ass’n. of St. Louis, 346 Mo. 333, 353, 141 S.W.2d 789, 799(12); Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 592(25); Haire v. Stagner, Mo.App., 356 S.W.2d 305, 310(6)], we doubt whether it would justify or permit a finding that the automobile remained stationary for “from two to four seconds” pri- or to the accident. Carrow v. Terminal R. Ass’n. of St. Louis, Mo.App., 267 S.W.2d 373, 378-379; Hoffman v. Illinois Term. R. Co., Mo.App., 274 S.W.2d 591, 593(1); Batson v. Ormsbee, supra, 304 S.W.2d at 682. When first asked “how long were you stopped . . defendant answered “it’s pretty hard to say; it could be all the way from two to four seconds.” But, when pressed to say that two to four seconds was his “best judgment,” he elaborated, “could be one; could be two; could be three; I have — really, I have no idea ... it happened pretty quick.”

However, if it be assumed for the purposes of this inquiry that, immediately prior to the collision, defendant’s automobile did remain stationary for “from two to four seconds” with the motor running and the gearshift lever in “drive” position, that would not, in and of itself, make a submissible case of humanitarian negligence. For, the humanitarian doctrine imposed upon defendant no duty to act until cross-claimant came into a position of imminent peril. Schmidt v. Allen, Mo., 303 S.W.2d 652, 657 (6); Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35, 38(3); Newman v. St. Louis Public Service Co., Mo. (banc), 244 S.W.2d 45, 48(2). And defendant could not have been liable under the humanitarian doctrine unless, after he knew or should have known of cross-claimant’s position of imminent peril, he then had the present ability with the means at hand to have averted the impending harm without injury to himself or others. Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, 497(6); West v. St. Louis-San Francisco Ry. Co., Mo., 295 S.W.2d 48, 52(5); Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 871(8); Glenn v. Offutt, Mo.App., 309 S.W.2d 366, 369(5).

Accordingly, when and where cross-claimant came into a position of imminent peril were matters of prime importance. Although it is true that the precise time when, and place where, one comes into a position of imminent peril are for determination by the triers of the facts [Welch v. McNeely, Mo., 269 S.W.2d 871, 876(10); Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 593; Stith v. St. Louis Public Service Co., 363 Mo. 442, 450, 251 S.W.2d 693, 698(7), 34 A.L.R.2d 972], nevertheless the burden rested on cross-claimant to establish every essential element of his humanitarian cause of action by substantial evidence of probative value or by inferences fairly and reasonably deducible therefrom [Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787(1)], and to adduce evidence of such character from which the jury fairly and reasonably might have found when and where he (cross-claimant) did, in fact, come into a position of imminent peril. Yarrington v. Lininger, supra, 327 S.W.2d at 109(7); Shirley v. Norfleet, Mo., 315 S.W.2d 715, 723(5); East v. McMenamy, Mo., 266 S.W.2d 728, 731— 732(5); Kasten v. St. Louis Public Service Co., Mo.App., 266 S.W.2d 1, 4(3). “Evidence that is merely speculative, a guess or conjecture is not sufficient for a jury to find where the position of imminent peril began.” Paydon v. Globus, Mo., 262 S.W.2d 601, 603; Yarrington v. Lininger, supra, 327 S.W.2d at 109(7); Holland v. Lester, supra, 363 S.W.2d at 80.

Nothing in the record before us indicates that the reasonable appearances of the situation confronting defendant were such that he should have been charged with notice that cross-claimant was in a position of imminent peril at any time before his motorcycle, then on the east (his right-hand) side of the road, “hit loose gravel”; and there is no evidence from which the jury reasonably could have inferred or found either (a) the space intervening between defendant’s automobile and the motorcycle when the latter “hit loose gravel” or (b) the time thereafter elapsing to the moment of impact. Neither did counsel seek, nor any witness offer, an estimate as to the length of time which would have been required, after cross-claimant came into a position of imminent peril, for defendant to have taken effective evasive action, i. e., to have taken his foot off the brake pedal, placed it on the accelerator, started his automobile forward, and swerved it to his right a sufficient distance to have avoided the collision. At this point, it may be noted that, if defendant was negligent in swerving to his left and stopping with the left front portion of his automobile across the imaginary center line of the road (as cross-claimant’s evidence ran), that was primary, not humanitarian, negligence. Davis v. Quality Oil Co., Mo., 353 S.W.2d 670, 675.

A case may not be submitted under the humanitarian doctrine where it rests solely upon speculation, conjecture and surmise [Yeaman v. Storms, 358 Mo. 774, 779, 217 S.W.2d 495, 499; Bauer v. Wood, 236 Mo.App. 266, 270, 154 S.W.2d 356, 359(6)], either with respect to the basic element of a plaintiff’s (or cross-claimant’s) position of imminent peril [Paydon v. Globus, supra, 262 S.W.2d at 603; Hendrick v. Kurn, supra, 352 Mo. at 851, 179 S.W.2d at 719(6) ; Hartlage v. Halloran, Mo.App., 331 S.W.2d 197, 200; Kasten v. St. Louis Public Service Co., supra, 266 S.W.2d at 4] or with respect to the equally essential element of defendant’s ability, after notice of such imminent peril, to have averted the accident with the means at hand. Begley v. Connor, Mo., 361 S.W.2d 836, 842-843(8); Stephens v. Thompson, Mo., 293 S.W.2d 392, 395(7-9); Meese v. Thompson, 344 Mo. 777, 783, 129 S.W.2d 847, 850; Holland v. Lester, supra, 363 S.W.2d at 81-82; Swain v. Anders, 235 Mo.App. 125, 133, 140 S.W.2d 730, 736(9). Thoughtful examination of the numerous authorities hereinbefore cited and careful study of the record submitted, which we must take as it comes to us [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Miller v. Dowling, Mo.App., 360 S.W.2d 345, 348(3)], impel the considered conclusion that instant cross-claimant did not remove his case from the realm of shimmering speculation and sheer surmise as to either of the above-discussed elements, namely, as to when and where he came into a position of imminent peril and as to defendant’s ability thereafter to have averted the collision with the means at hand.

Without further extending this opinion by detailed discussion of the cases cited in cross-claimant’s brief, suffice it to say that all of them have been examined, and that none are factually analogous to, or legally persuasive upon, the particular facts and circumstances of the situation in suit.

The judgment for defendant is affirmed.

RUARK, P. J., and HOGAN, J., concur.


source: Caselaw Access Project

author: RUDDY, Presiding Judge.

license: Public Domain

text:
    Louis LOYD, (Plaintiff) Respondent, v. June MOORE, (Defendant) Appellant.
    No. 31617.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.

      James J. Amelung, Holtkamp, Miller, Risch & Amelung, St. Louis, for appellant.
    William B. Kelleher, St. Louis, for respondent.
   RUDDY, Presiding Judge.

A trial by jury of plaintiff’s suit to recover damages of $7500 for personal injuries, sustained when plaintiff was struck' by an automobile operated by defendant, resulted in a verdict for defendant. The trial court sustained plaintiff’s motion for a new trial on the ground that Instruction No. 2 was prejudicially erroneous. Defendant has appealed the trial court’s order, contending that Instruction No. 2 was a proper instruction and was not prejudicially erroneous and further contending that plaintiff failed to make a submissible case of failure to stop or slacken and give a timely-warning under the humanitarian doctrine.

At the time of plaintiff’s injury he was a letter carrier and on April 21, 1961, at approximately noon time, he picked up some mail from the relay boxes located on the northeast corner of Lillian and Goodfellow Avenues in the City of St. Louis, Missouri. Goodfellow runs north and south and Lillian runs east and west. After picking up the mail at these relay boxes he proceeded west on Lillian, crossing Goodfellow, having as his destination the north side of Lillian west of Goodfellow. While crossing Goodfellow and when he was within three or four feet of the center line of Goodfel-low he stopped because some southbound cars had come to a stop at a stop sign at Lillian and while in this position he was struck by the car operated by the defendant.

At the beginning of plaintiff’s case, plaintiff’s Exhibit A was introduced and received in evidence without objection. This exhibit was a plat of the intersection of Lillian and Goodfellow drawn to a scale of one inch to 10 feet. This exhibit was placed in the presence of the jury and showed Lillian to be 40 feet in width and Goodfellow south of Lillian divided by a raised island, which island was approximately to 4 feet wide. This island did not continue north of the south curb line of Lillian. The distance from the west curb of Góodfellow south of Lillian to the island was 47 feet and the distance from the east curb of Goodfellow south of Lillian to the island was 48 feet. From the northeast curb to the northwest curb of Lillian and Goodfellow was a distance of 77 feet and 6 inches. The plat showed three marked southbound lanes for travel on Goodfellow south of Lillian and 3 northbound lanes on Goodfellow south of Lillian. North of Lillian the plat showed two marked northbound lanes and two marked southbound lanes. The north and southbound lanes adjacent to the center line of Goodfellow north of Lillian are approximately 10 feet in width. The other north and southbound lanes at their intersection with the north curb line of Lillian are considerably wider, approximately 29 feet. The stop sign for eastbound traffic west of Goodfellow was approximately 20 feet west of the west curb of Goodfellow.

Plaintiff testified that after he picked up the mail at the relay boxes he proceeded west on Lillian crossing Goodfellow carrying his mail pouch and the mail on his left shoulder. The path he followed across the street was approximately 2j4 feet north of the north curb line of Lillian Avenue. As he left the curb on the northeast corner he saw four cars coming south on Goodfellow and as he crossed from this point to the point where he was struck he saw no cars pass in front of him or behind him going north. He said no other cars, with the exception of the car driven by defendant, turned left off of Lillian to go north on Goodfellow. He walked to a point about 3 or 4 feet from the center line of Good-fellow and then stopped because the southbound cars had come to a stop at Lillian while he was walking across the northbound lanes of Goodfellow. He said these cars had stopped before he stopped. He thought the distance from the northeast curb to the point where he stopped was more than 30 feet. He said the lane in which he was stopped was the northbound lane closest to center of the street and that he had gotten about one-half way across this lane when he stopped. The stopped southbound car nearest plaintiff was three to four feet west of the center line of Goodfellow with the front end even with the north curb line of Lillian. At the time plaintiff stopped he was about even with the driver of the southbound car. He said there was nothing to interfere with his vision to the west along Lillian Avenue as he was walking across the street; that there were no obstructions. He said he could see past the nearest car that was stopped in the southbound lane and that he could see over the hood of that car. He said defendant’s car was about 18 inches from him when he first saw it and that he could not estimate the speed of her car at that time and could not say whether she was swerving or attempting to stop. Prior to seeing the defendant’s car he had come to a stop and said that he did not stop because of seeing her car but stopped because of the obstruction caused by the stopped southbound cars.

When plaintiff saw defendant’s car it was facing north. However, he said not due north. He did not know where the car came from and did not know that defendant was attempting to make a left turn from Lillian to go north on Goodfellow. As he walked from the northeast comer of Lillian and Goodfellow he was not aware of any traffic that might have been eastbound on Lillian and stopped at Goodfellow. He would not say there, was none but he said he paid no attention. When defendant’s car came in contact with plaintiff he was hurled through the air between ten and twenty feet. At the time he was struck, the southbound cars stopped at Lillian were still there. He said defendant’s car stopped immediately after making contact.

The testimony of defendant showed that she was driving east on Lillian, west of Goodfellow, and as she got near Lillian she had to come to a. stop behind two or three other cars ahead of her which had also stopped for the stop sign on Lillian and Goodfellow. The intersection of Lillian and Goodfellow was protected by stop signs in all directions. She had to wait just a few seconds before she proceeded. She paid no attention to where the cars ahead of her went and as she came up to the stop sign, after the other cars had left, she saw three cars to the north of her coming south and two cars to the south of her coming north. After the other cars ahead of her had left and she had reached the intersection she proceeded to make a left turn to go north on Goodfellow. In doing so, she either slowed down or stopped her car to permit a westbound car to pass. To her right and proceeding north on Goodfellow was a red truck which she thought was carrying some long pipes. She permitted the truck to proceed ahead of her north on Goodfellow and then she started to follow behind it. In the meantime the southbound cars had come to a stop at the intersection stop sign and she did not see any people or any pedestrians between the truck which was proceeding north and the southbound cars on Goodfellow. Thereafter, she started to complete her left turn. She thought that at the time she was making her left turn her foot was between the gas pedal and the brake, explaining that she had to make more than a right angle turn to go north on Goodfellow and that she had to make a “V” turn. She came about three-fourths of the way out to the center of the intersection before starting to make her left turn. She first saw plaintiff when he was about two feet in front of her car at which time he was walking. She said she applied the brakes immediately and stopped the car in that two feet. She thought it was the right front fender of her car that came in contact with the plaintiff. She said at the time she first saw plaintiff he was near the lane next to the center line of the street. It seemed to her that he was a couple of feet from the line of this lane which would have placed him a full lane plus a couple of feet from the center line of Goodfellow. She said at the time she first saw plaintiff she thought she was going 10 to IS miles per hour and added “if I was going that fast because of the traffic conditions.” She put on her brakes immediately. She said her car is 16 or 17 feet long and that three-fourths of her car, about 12 feet of it, was out of the intersection north of the north curb line of Lillian at the time of the impact and that the other part of her car, the remaining fourth, was still in the southbound lane next to the center of the street, blocking southbound traffic. She was on an angle at the time she made contact with plaintiff. She did not sound her horn at any time.

Robert Williamson, rebuttal witness for plaintiff, testified that he was an attendant and manager of the filling station on the northwest corner of Goodfellow and Lillian. At the time plaintiff was struck he was engaged in putting gas in an automobile and witnessed the occurrence just about the time defendant’s car hit plaintiff. He did not know what direction defendant’s car came from but that it was facing north at the time of contact with plaintiff. He saw plaintiff start across the street from the northeast corner but did not follow his travels after he started until he looked up at the time he saw plaintiff struck. He said contact was made between defendant’s car and plaintiff about the middle of the northbound lane ne±t to the center of Goodfellow. He said that if you would continue the sidewalk across the intersection plaintiff was four to five feet north of the sidewalk line. He said there were no southbound cars on Goodfellow at the time.

We take up defendant’s first contention that plaintiff failed to make a submissible case for the jury. In determining whether plaintiff made a submissible case we review the evidence from a standpoint favorable to plaintiff, give him the benefit of any part of defendant’s evidence favorable to him and not contradicted by his own testimony or not contrary to his fundamental recovery theory, give him the benefit of the reasonable inferences from all the evidence and disregard all of defendant’s evidence unfavorable to plaintiff. Sperry v. Tracy Dodge-Plymouth Company, Mo., 344 S.W.2d 108; Daniels v. Smith, Mo., 323 S.W.2d 705; Wofford v. St. Louis Public Service Co., Mo., 252 S.W.2d 529; De Lay v. Ward, Mo.App., 262 S.W.2d 626.

Under the humanitarian doctrine, no duty upon defendant to act is imposed until plaintiff comes into a position of imminent peril. The peril must be imminent, that is to say, certain, immediate and impending. A likelihood or a bare possibility of injury is not sufficient to create imminent peril. It is the duty of plaintiff in the instant case to establish by substantial evidence of probative value or by inferences reasonably drawn therefrom, a point at which the jury can find that he came into a position of imminent peril. Paydon v. Globus, Mo., 262 S.W.2d 601; Kirks v. Waller, Mo., 341 S.W.2d 860. And a jury may reasonably find that a plaintiff’s zone of imminent peril is widened by reason of his obliviousness, if it further finds that such obliviousness should have been apparent to the defendant. Sperry v. Tracy, Dodge-Plymouth Company, supra. Likewise, plaintiff’s obliviousness to defendant’s approaching automobile is a constitutive element of a humanitarian case when submitted on the theory of failure to warn. Vietmeier v. Voss, Mo., 246 S.W.2d 785.

The place where and the time when plaintiff came into and was in a position of imminent peril and whether or not plaintiff was oblivious to the approach of defendant’s automobile and whether his obliviousness should have been apparent to defendant, were questions for the jury to determine. We are of the opinion, as we shall demonstrate, that the evidence in the instant case was sufficient to present a jury question as to each submitted hypothesis under the humanitarian submission, that is, that plaintiff came into and was in a position of imminent peril; that he was oblivious to the existing peril and that defendant had the means available to stop or to slacken her automobile and to timely warn plaintiff of the approach of said automobile.

The reasonable findings which the jury was entitled to make based on the evidence in the case are that as plaintiff left the northeast corner curb he saw four cars to the right coming south. He then walked to a point three to four feet east of the center of Goodfellow, where he stopped because the southbound cars had come to a stop while he was walking and, as he said, had stopped before he stopped. In this same connection defendant when she was stopped at the stop sign on the southwest corner of the intersection saw three cars coming south and evidently realizing they had to stop at the stop sign on Lillian and Goodfellow for southbound traffic, proceeded to make her left turn. The jury could have reasonably inferred from her testimony that as she proceeded out to the point where she began to make her left turn, the southbound cars which she had observed had come to a stop. Therefore, while she was moving her car from the stopped position at the stop sign to the point where she proceeded to make her left turn, which was three-fourths of the way out into the western lanes of Goodfellow, plaintiff was walking from the northeast curb to the point where he stopped. The jury could have reasonably found that while he was thus walking defendant in the exercise of the highest degree of care could have seen plaintiff continuously after she had moved her car from the stopped position to the point where she began to make her left turn and to the place where she struck plaintiff, because the evidence most favorable to plaintiff shows no cars proceeding north on Goodfellow and, therefore, nothing present to obstruct defendant’s vision of the area in which plaintiff was walking and standing. Defendant knew she was going to make a left turn and could have seen and observed plaintiff’s obliviousness to the presence of her car. From these positions and these facts and circumstances the jury could have reasonably found that in some place as plaintiff walked across Goodfellow, including the place where he stopped, he was in a position of imminent peril of being struck by defendant’s car, if defendant continued her left turn and proceeded north on Goodfellow. Such a course would require defendant to cross the path plaintiff was traveling or standing. We think there was sufficient evidence for the jury to find that plaintiff came into a position of imminent peril at some time after defendant left her stopped position and proceeded to make her left turn and by the exercise of the highest degree of care defendant could have seen that plaintiff was oblivious to the approach of her car and could have seen plaintiff when he came into a position of imminent peril.

As we said, we are convinced that the evidence was sufficient to present a jury question as to defendant’s ability thereafter “ * * * by the exercise of the highest degree of care, and with the means and appliances then and there at hand, and with reasonable safety to defendant’s said automobile, its occupant and all persons and property thereat, to have stopped or slackened the speed of said automobile, and to have given an adequate and timely warning of the approach and proximity of said automobile, and that, by so doing defendant could thus and thereby have avoided striking plaintiff * * * ” all as submitted in plaintiff’s Instruction No. 1.

On the question of defendant’s ability to have given an adequate and timely warning of the approach and proximity of her automobile and by so doing to have thereby avoided striking plaintiff we have shown that defendant had a clear and unobstructed view of the entire intersection and particularly of the path traveled by plaintiff from the northeast corner of Goodfellow and Lillian to the point of impact. The evidence shows that the distance traveled by defendant from the stop sign to the point of impact, which was TX/z feet north of the north curb line of Lillian Avenue, according to the testimony of plaintiff, was approximately 89l/*> feet. This is not a case that requires niceties in calculations required in some humanitarian cases. The jury could have found that from the time defendant left the stop sign on the southwest corner of the intersection to the point and time of impact, defendant in the exercise of the highest degree of care could have seen plaintiff continuously as he moved (more than 30 feet) from the northeast curb to the point of impact. The jury could have reasonably found that plaintiff’s obliviousness extended his zone of imminent peril almost to the point where he left the northeast curb to proceed to the point where he stopped because of the southbound traffic. Considering the distance traveled by defendant, her opportunity to see plaintiff continuously after he left the northeast curb of Goodfellow and Lillian Avenue and the other facts and circumstances we have related, the question of whether defendant could have avoided striking plaintiff by sounding a timely warning, after plaintiff entered the zone of imminent peril, in time thereafter to have afforded plaintiff an opportunity to stop before walking into defendant’s intended path or an opportunity to extricate himself from a stopped position was properly one for the jury. We think from these facts and circumstances, the jury could reasonably have found that the defendant could have sounded a timely warning to have avoided striking plaintiff, who was at all times in plain view.

On the question of defendant’s ability to have stopped her automobile after plaintiff entered the zone of imminent peril and thereby have avoided striking plaintiff, we think the jury could have found that she had the ability to so stop her automobile. As we have shown, there was nothing to obstruct her view as she traversed the whole distance from the time she left the stop sign to the point of impact and, therefore, she had an unobstructed view of the path traveled by plaintiff from the northeast corner of Goodfellow and Lillian to the point of impact. We have shown that the distance traveled by defendant from the stop sign to the point of impact was approximately 89i/á feet. Both plaintiff and defendant testified that defendant stopped her automobile immediately upon impact. Defendant testified that she did stop her automobile within a distance of two feet. It will be recalled she testified that she was traveling, she thought, 10 to IS miles per hour; that she first saw the plaintiff when he was 2 feet away from her and stopped her car in 2 feet. Her testimony that she stopped her automobile in 2 feet tends to confirm a low rate of speed. Since defendant was able to stop her automobile in 2 feet after she first saw plaintiff, the jury could infer and find that the condition of her automobile and its brakes were. such that at the rate of speed mentioned she could stop in 2 feet. De Lay v. Ward, supra, 262 S.W.2d l. c. 634. As said in the case of Lang v. St. Louis-San Francisco R. R., 364 Mo. 1147, 273 S.W.2d 270, l. c. 275: “* * * there is no more cogent, probative evidence of what could and should have been done than what as a matter of indisputable fact was done. * * *

“ * * * We have held that, when a car actually stops in a certain distance, there is no need of theorizing upon inability to stop in that distance.”

Under the evidence the jury could have reasonably found that defendant was traveling at a low rate of speed and could have stopped her car in 2 feet. Defendant testified that at the time she first saw plaintiff she thought she was going 10 to 15 miles per hour, but added, “if I was going that fast * * If we assume that defendant was traveling at a speed of 10 miles per hour after she left the stop sign and as she was making her left hand turn, it can be demonstrated that she could have stopped short of the point of impact. While we do not judicially know the exact stopping distance of an automobile traveling at 10 miles per hour, after the brakes have been applied, we do know that, exclusive of reaction time, an automobile with good brakes traveling at 10 miles per hour can be stopped within 9 feet and the jury could so find. De Lay v. Ward, supra, l. c. 635, 636; Nelms v. Bright, Mo., 299 S.W.2d 483, l. c. 490; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, 12. Assuming defendant’s reaction time to be of a second, defendant would have traveled 10.99 feet before she could have reacted to the situation before her and applied the brakes. De Lay v. Ward, supra, l. c. 635. This would make a total stopping distance, including reaction time, of 19.99 feet. If we assume that plaintiff was in the zone of imminent peril at the time defendant started to make her left turn, which the jury could have reasonably found, she was then at least 22[4 feet from the point of impact, which was a sufficient distance to have enabled her to stop her automobile and thereby have avoided striking plaintiff. We merely point out this last assumption to show that under any and all circumstances defendant could, in the exercise of the highest degree of care, have stopped her automobile, after plaintiff was in the zone of imminent peril, in time to have avoided striking plaintiff. We think it was a question for the jury whether or not defendant in the exercise of the highest degree of care could have stopped her automobile and avoided striking plaintiff.

If in the exercise of the highest degree of care she could have stopped her car before striking plaintiff, under the same circumstances she could have slackened the speed of her car sufficiently, coupled with a timely warning, to have enabled plaintiff to step out of the path of the oncoming car. Sperry v. Tracy Dodge-Plymouth Company, supra, 344 S.W.2d l. c. 112. This also was a question for the jury.

Under the evidence and the reasonable inferences therefrom plaintiff made a sub-missible case under the humanitarian doctrine of failure to stop or slacken and give a timely warning.

In defendant’s next point she contends that Instruction No. 2 was a proper instruction and was not prejudicially erroneous, citing and relying on Lucas v. Blanks, Mo., 362 S.W.2d 736. Plaintiff contends that said instruction is not a proper converse of one of the essential elements submitted on plaintiff’s main verdict directing instruction and, therefore, the giving of said instruction was prejudicially erroneous and in support thereof cites the cases of Jolley v. Lowe, Mo., 362 S.W.2d 741, and Jolley v. Lowe, Lucas v. Blanks, Mo., 362 S.W.2d 744, an opinion in which the writer concurred in the result reached in Lucas v. Blanks, supra. Instruction No. 2 offered by the defendant and given by the court reads as follows:

“The court instructs the jury that if you find and believe from the evidence that after the plaintiff became in a position of imminent peril the defendant could not thereafter have stopped her car or sounded a timely warning and thus and thereby have avoided striking plaintiff, then you are instructed that your verdict shall be against the plaintiff and in favor of the defendant.”

It is the contention of plaintiff that the instruction fails to require of defendant an objective standard of care and in the absence of other instructions to the jury defining the applicable standard of care required of defendant said instruction is prejudicially erroneous. No instruction given in the case defines the highest degree of care or negligence.

We think plaintiff’s contention must be sustained. The three opinions cited by plaintiff and defendant were decided and handed down by the Supreme Court simultaneously. Only two cases were involved, namely, Lucas v. Blanks, supra; and Jolley v. Lowe, supra. The third opinion (362 S.W.2d 744) is one written by Judge Westhues in which he explained his concurrence in the result reached in Lucas v. Blanks, supra. However, Judge West-hues in his concurring opinion adopted in toto a memorandum prepared by Commissioner Coil, in which memorandum Commissioner Coil discussed the opinion in Jolley v. Lowe written by Commissioner Holman (now Judge Holman) and the opinion in Lucas v. Blanks written by Commissioner Houser. Both opinions (Lucas v. Blanks and Jolley v. Lowe) deal with the same type of instruction and the instruction involved was a humanitarian converse instruction similar to Instruction No. 2 in the instant case. In the case of Lucas v. Blanks plaintiff objected to the instruction on the ground, among others, that it did not indicate the degree of care required by the defendant and lacked the requirement of a finding that defendant exercised the highest degree of care and was not negligent. In that case the writer of the opinion held that the failure of the instruction “to require of defendant the exercise of the highest degree of care is not a valid objection,” explaining that a converse instruction without such a requirement is more favorable to plaintiff than if the defendant’s duty was thus limited. The opinion, pointing to the language of the instruction, said:

“D-4 only authorizes a verdict for defendant if it was impossible, for any reason and upon any hypothesis, for defendant to have prevented his automobile from striking plaintiff. Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264, 268 [3], and case cited; Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919, 920.” (362 S.W.2d l. c. 740.)

Judge Westhues in his concurring opinion did not agree that the complaint made against the instruction was not a valid objection and in effect held that the instruction standing alone was reversibly erroneous for failure to have included the applicable standard of care. However, Judge Westhues concurred in the result reached by the writer of the opinion because, as shown in the opinion written by Judge Houser, another instruction in the case told the jury that, “It is the duty of the driver of every automobile upon the highways of this state to exercise the highest degree of care,” (362 S.W.2d l. c. 740) and defined the highest degree of care and negligence. For this reason Judge Westhues concurred in the result reached by Judge Houser because he believed that the other instruction so informing the jury of the applicable standard of care, when read with the questioned instruction sufficiently supplied the missing requirement as to the applicable standard of care. Judge Hoi-lingsworth also concurred in the result and concurred in the separate opinion written by Judge Westhues. This was a divisional opinion and was concurred in by Dalton, P. J., and Hyde, J. Therefore, that part of the opinion written by Judge Houser holding that the instruction was sufficient in and of itself did not receive the concurrence of the majority of the Judges of the Division of the Court and is not authority in support of the sufficiency of the questioned instruction. The instruction can only be upheld when it is accompanied by another instruction defining and informing the jury as to the degree of care required of defendant. No such instruction was offered by defendant in the instant case.

In the case of Jolley v. Lowe, supra, written by Judge Holman and cited and relied on by the plaintiff herein, the questioned instruction reads as follows:

“The court instructs the jury that if you find under instruction No. 3 that the plaintiff was oblivious to the defendant and had entered a zone of peril, and if you further find and believe that the defendant was unable, in time thereafter to sound a warning or stop his automobile, and that in so doing he was not negligent, then your verdict should be for the defendant and against the plaintiff.” (362 S.W.2d l. c. 743.)

This instruction in all pertinent respects is similar to instruction No. 2 in the instant case. The Supreme Court, speaking through Judge Holman, said:

“We have concluded that the instruction is erroneous for the reason that it is indefinite, incomplete, confusing and misleading. First, we note that there is no requirement in the instruction concerning the standard of care applicable to defendant. It should have contained a finding that defendant, in the exercise of the highest degree of care, was unable to sound a warning or stop the automobile in time to have avoided colliding with plaintiff. * * * The instruction, in the form in which it was given, permitted the jury to return a verdict for the defendant upon a finding that he was unable to take the timely action specified in order to avoid the casualty, irrespective of whether he was, at the time, exercising the highest degree of care in the operation of his automobile.” (362 S.W.2d l. c. 743.)

For this and another reason indicated by the court, the court found that the giving of the instruction constituted reversible error. This opinion received the concurrence of a majority of the Judges of the Division and is authority in support of plaintiff’s contention that Instruction No. 2 in the instant case is prejudicially erroneous. It appears from a reading of the Jolley v. Lowe case that no other instruction defining the applicable standard of care required of defendant was given.

We have examined the other cases cited by the defendant in support of her contention that Instruction No. 2 was a proper instruction but see no need to discuss them, inasmuch as the case of Jolley v. Lowe, supra, the latest pronouncement of the Supreme Court on the matter involved, conclusively holds that the giving of an instruction similar in all pertinent respects to. Instruction No. 2, questioned in the instant case, is reversible error.

The order and judgment of the trial court granting plaintiff a new trial is affirmed and the cause is remanded.

WOLFE and ANDERSON, JJ., concur.


author: MAUGHMER, Commissioner.

text:
    Kenneth CRUSE and Dorothy J. Cruse, a Minor by Her Father and Next Friend, Kenneth Cruse, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation, Respondent.
    No. 24180.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.
    Haskell Imes, Kansas City, for appellants.
    E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

This is a suit to recover under an insurance policy for property damage sustained by plaintiffs’ automobile. Defendant’s motion to dismiss the petition for failure to state a cause of action was sustained and plaintiffs have appealed. We examine and consider the petition to determine if it does or does not state a cause of action against defendant insurer.

Plaintiffs’ petition alleges (1) that on or about January 24, 1964, they were the owners of a particularly described Ford automobile; (2) that on said date defendant company’s insurance policy insuring them as owners and covering said Ford automobile was in full force and effect; (3) that said policy provided liability insurance and comprehensive coverage; (4) that paragraph (1) (a) of the policy reads:

“To pay for loss caused other than by collision to the owned automobile or to a non-owned automobile. For the purpose of this coverage * * * loss caused by * * * malicious mischief * * * shall not be deemed to be loss caused by collision”.

(5) that on or about January 24, 1964, at approximately 2:22 a. m. plaintiff Dorothy J. Cruse was driving said Ford east at the intersection of 13th and Charlotte Streets, Kansas City, Missouri, “when a certain John J. Marlowe and John Doe, who were then committing a felonious act and then and there had a large quantity of stolen property in the motor vehicle and were then and there engaged in driving in a southerly direction on Charlotte street while fleeing the police, who were in hot pursuit, entered said intersection when the traffic lights then and there were red for southbound traffic, at a speed of 60 miles per hour; that said John J. Marlowe and John Doe at said time and place were acting unlawfully, maliciously and with such reckless disregard of the rights of the plaintiffs as to constitute malicious mischief within the terms of said insurance policy which expressly states that acts of malicious mischief shall not be deemed to be acts caused by collision”, and (6) that said Ford was damaged in the amount of $1200, and (7) a prayer for judgment in the sum of $1200, plus interest, penalty for vexatious refusal to pay, and attorney’s fee.

Neither the insurance policy nor a copy thereof was attached to the petition, nor was it ever offered or received in evidence. Plaintiffs at one time asked to amend by adding the words “or vandalism” after the words “malicious mischief” as quoted from the policy, but such addition or amendment was never made.

It is quite apparent that plaintiffs bought liability protection, plus comprehensive coverage, but did not purchase collision insurance. If the property damage done to their Ford automobile was occasioned by “malicious mischief” then their petition states a cause of action and it was erroneously dismissed. On the other hand, if the damage was caused by “collision”, then the loss was not covered by the policy and the motion to dismiss was properly sustained. Plaintiffs assert that the damage to their automobile was brought about by “malicious mischief” within the meaning of that phrase under our statutes and under the insurance contract herein.

Our Missouri statutes under Chapter 560 “Offenses Against Property” contain four specific sections dealing with unlawful and malicious destruction or injury to property. One refers to destruction by explosion, another injuring dwelling houses, a third, injury to boats and vessels and, finally, one providing a penalty for “willfully and maliciously” injuring a host of specifically described properties, including “or other vehicle”. (Secs. 560.400, 560.395, 560.390 and 560.385, V.A.M.S.).

Plaintiffs have cited cases which they contend support their position. We shall refer briefly, but we think sufficiently, to some of those decisions. In State v. Hadley, Mo., 364 S.W.2d 514, 517, the Supreme Court affirmed a conviction of burglary and ruled that failure to instruct on malicious mischief, which imports only an intent to injure or destroy, rather than theft, did not constitute error.

It was ruled that an employee driving a truck without permission and without intention to permanently deprive the owner thereof was guilty of malicious mischief, rather than theft. Eiswirth Const. & Equipment Co. v. Glenn Falls Ins. Co., 241 Mo.App. 713, 240 S.W.2d 973.

The following situations were held to constitute malicious mischief: Tampering with earth-moving vehicle, Zuber et al. v. Clarkson Constr. Co., Mo., 315 S.W.2d 727. Castration of neighbor’s bull, State v. McLelland, 312 Mo. 68, 278 S.W. 981. Shooting a neighbor’s hogs, State v. Sillbaugh, 250 Mo. 308, 157 S.W. 352, and throwing stones at a street car, State v. Lang, 14 Mo.App. 247. In each of these instances the acts were done willfully and intentionally. In our opinion none of these cases supports plaintiffs’ contention.

Plaintiffs have also included in their brief the following quotation from the opinion of Justice Ryland in the 1856 case of State v. Hambleton, 22 Mo. 452, 456:

“One remark more about the malice in these cases and I will have done. In the case of Bromage and another v. Prosser, (4 Barn. & Cress. 247; 10 Eng.Com.Law, 321.) Bailey, J., in delivering the opinion of the court, said: ‘Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done in-tionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle without knowing whose they are — if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act and done intentionally’ ”.

In the case before us there is no suggestion that the operators of the other vehicle intentionally hit plaintiffs’ automobile or intended to run into any automobile or into anybody’s property. In fact it is fully apparent that Marlowe and Doe were trying to escape capture. The last thing they wanted was to have their flight stopped, slowed up or interrupted by striking any automobile. Their striking plaintiffs’ automobile was unintentional. There was no malice, particular or general, in the striking. It was an accident. It was a collision.

In Hutchinson v. Steinke, Mo.App., 353 S.W.2d 137, the court approved the definition of collision insurance as stated in 44 C.J.S. Insurance § 7 page 476, as follows:

“ * * * ‘ “Collision insurance” is a term used in the law of motor vehicle insurance to describe insurance of the owner against the risk of loss or damage occasioned to the vehicle by a collision with other objects.’ * * * ”

This court in Payne v. Western Casualty and Surety Co., Mo.App., 379 S.W.2d 209, 211, gave a broad definition to collision insurance and held it covered running the insured automobile into a ditch, saying:

“The majority of the courts, often noting there is no proof that the word ‘collision’ has some commonly known and generally recognized restrictive meaning in insurance contracts take the viewpoint that the word ‘collision’ should be defined broadly and in its dictionary sense to mean ‘striking together’ or ‘striking against’, thus including every contact with any part of the highway. See, Annotations, 23 A.L.R.2d 389, 105 A.L.R. 1428; 42 A.L.R. 1130; 40 A.L.R. 999; 35 A.L.R. 1030; 30 A.L.R. 807; 26 A.L.R. 429; 14 A.L.R. 188. In Missouri in principle we have adopted the more liberal construction”.

In Rea v. Motors Ins. Corporation, 48 N.M. 9, 144 P.2d 676, 679, the policy provided coverage for “malicious mischief”. Plaintiff’s automobile was properly parked on a street in Roswell, New Mexico when it was run into by an automobile driven by one Ledbetter, who was at the time under the influence of intoxicating liquor. Plaintiff’s suit to recover damages under the “malicious mischief” coverage clause, was denied. The Supreme Court of New Mexico said:

“* * * He might as well have struck one or more of many other cars -likewise parked upon the street. If it is to be that any drunken or wanton, willful or reckless driver upon the highways who collides with or injures another automobile is to be adjudged guilty of malicious mischief, as the term is employed in this policy, there would, indeed, be little necessity for any coverage for damages through ‘collision’. * * * a

We believe that an act to constitute malicious mischief must be done willfully and intentionally. The intent does not have to be against one particular and certain object. The perpetrator may or may not know the owner of the object struck, but he must do the act on purpose. Herein lies the malice. Here there was no intent to strike plaintiffs’ vehicle or any vehicle. Quite the contrary. If in the case before us plaintiffs had bought collision coverage rather than insurance for malicious mischief, the insurer could certainly not successfully defend on the theory that the damage was occasioned by malicious mischief and not by collision. We rule that plaintiffs’ petition itself affirmatively shows that the loss was caused by collision and not as a result of malicious mischief within the meaning of the policy. It was not error for the court to sustain the motion to dismiss.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


author: CALVERT, Chief Justice. SMITH, Justice CALVERT, Justice.

text:
    TEXAS CASUALTY INSURANCE COMPANY, Petitioner, v. Miles Clifford BEASLEY, Respondent.
    No. A-10376.
    Supreme Court of Texas.
    March 17, 1965.
    Rehearing Denied June 2, 1965.

      Coleman Gay, Austin, for petitioner.
    Thomas C. Ferguson, Johnson City, for respondent.
   CALVERT, Chief Justice.

This is a workmen’s compensation case. In response to special issues the jury found that Miles Clifford Beasley, the claimant, sustained an accidental injury in the course of his employment which produced permanent, total incapacity. The trial court rendered judgment on the verdict for Beasley for 401 weeks of compensation at $35.00 per week, less benefits previously paid. The Court of Civil Appeals affirmed. 381 S.W.2d 236. We reverse the judgments of the trial court and the Court of Civil Appeals and render judgment that the claimant take nothing.

Beasley sustained a back injury on April 11, 1961, while in the course of his employment for Premier Granite Quarries, Texas Casualty’s assured. He filed his claim for compensation benefits with the Industrial Accident Board on November 13,1962, nineteen months after the date of his injury. Under the provisions of Sec. 4a of Art. 8307, Vernon’s Texas Civil Statutes, his right to compensation benefits is barred because of his failure to file his claim within six months from the day of his injury, unless he had good cause for his delay. The only question to be decided here is whether the evidence adduced at the trial fails as a matter of law to show good cause.

It is not enough to satisfy the statutory requirement to prove that good cause for failure to file existed during the six-month period; an injured workman owes a duty of continuing diligence in the prosecution of his claim, and must prove that good cause for failure to file continued up to the date of filing. Texas Employers Insurance Ass’n v. Hancox, 162 Tex. 565, 349 S.W.2d 102; Consolidated Casualty Insurance Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299; Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053; Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088. Beasley’s proof on the issue must be tested by that rule.

Beasley consulted and was examined by three different doctors within a brief period of time following his injury. Acting upon their advice, he submitted to surgery on May 8, 1961, for the removal of a herniated disc. He returned to his work for Premier some eight weeks later and, in spite of almost constant pain in the area of the operation, continued in that employment until February 10, 1962. He quit his job with Premier on advice of his doctor and obtained employment on a ranch on February 15,1962, where he was still working at the time of trial. He strained or wrenched his back in July, 1962, and was hospitalized in traction for five days. He was released from the hospital on July 23, 1962.

On June 20,1962, the owner of the ranch, who was also an attorney, wrote a letter to Premier Granite Quarries about a possible compensation claim for Beasley. Premier referred the letter to the claims manager of Texas Casualty Company. The claims manager replied to the letter on July 8, 1962, and suggested that he would be pleased to receive any kind of compromise offer with regard to Beasley’s claim. Between July 8, 1962, and the middle of August of that year, Beasley’s employer made one or two telephone calls to the claims manager of Texas Casualty, probably one before and one after his hospitalization. Near the middle of August, a conflict of interest arose between Texas Casualty and the compensation carrier of Beasley’s employer. In the latter part of August, Beasley’s employer notified Beasley of the conflict, advised him that he could no longer continue negotiations with Texas Casualty, and referred him to another attorney. Around October 1, 1962, Beasley consulted the attorney to whom he had been referred and who thereafter filed the claim.

The claimant’s reason for delaying the filing of his claim is to be found principally in his own testimony. He testified that he was assured by the doctors before his operation on May 11,1961, that the surgery would make him “as good as new”; and in spite of the fact that he continued to have pain in his back and leg, he continued to believe that he would get well up to the time that he had to go back to the hospital in July, 1962, at which time he realized that he was not going to get well and would have to file a claim. He testified further that he did not want to assert a claim if he was going “to be all right.”

For the purpose of deciding the question before us, we will assume, without deciding, that good cause for failure to file a claim existed until Beasley was hospitalized in July, 1962. See Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370. The question then narrows to this: Did good cause for failure to file the claim continue to exist from the middle of July, 1962, until the claim was filed on November 13, 1962? The answer to the question turns on the degree of diligence used to get the claim filed. Beasley was charged with the duty of prosecuting his claim with that degree of diligence which a reasonably prudent person would have exercised under the same or similar circumstances. Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989; Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370; Hartford Accident & Indemnity Co. v. Hardin, Tex.Civ.App., 252 S.W.2d 752, writ refused. Ordinarily, whether a claimant has used that degree of diligence is a question of fact to be determined by a jury or trial judge. Texas Employers’ Ins. Ass’n v. McDonald, Tex.Civ.App., 238 S.W.2d 817, writ refused. However, the evidence in a particular case may lead to lack of diligence as the only reasonable conclusion, in which event the question is to be decided as a matter of law. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372. We hold that the evidence in this case requires a conclusion, as a matter of law, that the claimant did not exercise the degree of diligence in the filing of his claim which a reasonably prudent person would have exercised under the same or similar circumstances.

The evidence reflects that Beasley knew he should file a claim. Texas Casualty paid him weekly compensation benefits for eleven or twelve weeks following his injury. During this period Beasley went to see a lawyer with reference to the filing of a claim, and was advised that he did not need to file one as long as he was drawing compensation. However erroneous the advice may otherwise have been, it certainly confirmed the necessity for filing a claim when compensation payments ceased, if he should be disabled. In spite of his knowledge, there is in the record no evidence that he or his employer-attorney took any steps to get a claim filed from the middle of July, 1962, at which time he concluded he was not going to get well, to the latter part of August, and no evidence that he did anything toward filing one during the month of September. There is no evidence that Beasley advised his employer-attorney that a claim had not been filed, or discussed with him the necessity or advisability of filing a claim. The evidence is conflicting as to whether in dealing with Texas Casualty’s claim agent the employer was acting as a friend or as Beasley’s attorney. The relationship is immaterial; he was Beasley’s agent. There is no evidence that Beasley was prevented by his physical condition or by the duties of his employment from filing his claim during the month of September. The controlling fact is that no steps were taken to get a claim filed for two and a half months. That is too long for a reasonably prudent person to do nothing. See Jones v. Texas Employers Ins. Ass’n, 128 Tex. 437, 99 S.W.2d 903. It becomes unnecessary to decide whether under the circumstances five to six weeks was an unreasonable period of time for investigation and filing of the claim by the attorney who filed it.

The Court of Civil Appeals held that the evidence presented a fact issue on the issue of diligence. In making the holding, that court relied primarily on Texas Employers’ Ins. Ass’n v. McDonald, Tex.Civ.App., 238 S.W.2d 817, writ refused. While the evidence of good cause in that case is in some respects similar to the evidence in this case, it is in other respects distinctly dissimilar. In that case the claimant thought papers he had filed with the Industrial Accident Board within thirty days of his injury was a claim for compensation; here, the claimant knew he had not filed a claim. In that case a claim for compensation was filed promptly upon the termination of settlement negotiations ; here, the claimant took no steps whatever to prosecute his claim until some thirty days after termination of settlement negotiations, and offered no evidence to excuse his failure to do so. We conclude that this case is not ruled by McDonald.

Texas Casualty’s motion for an instructed verdict and its subsequent motion for judgment notwithstanding the verdict should have been granted. The judgments of the Court of Civil Appeals and trial court are reversed, and judgment is here rendered that the plaintiff take nothing.

SMITH, Justice

(dissenting).

I respectfully dissent. The Court propounds the question: “Did good cause for failure to file the claim continue to exist from the middle of July, 1962, until the claim was filed on November 13,1962?” Then the Court concludes that the answer to the question turns on the degree of diligence used to get the claim filed.

The question and the rule announced as being controlling has placed Beasley’s case in an entirely different light than the record reflects. The Court has failed to consider the evidence most favorable to the finding of the jury on the issue of good cause. The trial court heard the evidence on the issue of good cause. The evidence which will be discussed later afforded the basis for the submission of Special Issues number 17 and 18. These issues were answered in the affirmative. The jury found that Beasley believed up until November 13, 1962, the. date the claim was filed, that the operation in May, 1961, “would so repair the personal injuries sustained by him, if any, on April 11, 1961, that he would not sustain any serious disability after he recovered from the operation.” The jury found that such belief constituted good cause.

The statute does not define “good cause.” The trial court defined “good cause” as meaning “whether or not the cross-plaintiff, Miles Clifford Beasley, in the prosecution of his claim for compensation, used that degree of diligence which a man of ordinary and reasonable prudence, situated as was the cross-plaintiff, would have used under the same or similar circumstances.” This definition meets the test announced by the courts in such cases as Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948); Consolidated Casualty Insurance Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299 (1955); and Hartford Accident & Indemnity Co. v. Hardin, Tex.Civ.App. (1952), 252 S.W.2d 752, writ refused. The Hawkins and Hardin cases also hold that ordinarily whether the claimant has used the degree of diligence required is a fact issue, and that the question “may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other conclusion.” It has been well recognized at least since the case of Texas Employers Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900 (1937), that the period of six months provided in the statute for the filing of a claim with the Industrial Accident Board begins to run on the date of the injury.

The strict provisions of Article 8307, § 4a,; that notice of injury must be given within 30 days, and claim for compensation for injuries shall be made within 6 months were not invoked before the Industrial Accident Board. The Board entered its award in favor of the claimant, and Texas Casualty appealed from the adverse order of the Board to the District Court. In the District Court, Beasley, as cross-plaintiff, pleaded that “good cause” existed for his failure to file his claim prior to November 7, 1962, the date formal claim was filed. Beasley has discharged his burden if the Court will follow the rule that only the evidence most favorable to Beasley is to be considered. If there is some evidence that the claimant exercised some care and prudence, then the verdict of the jury on the issue of good cause and the judgment of the trial court should be upheld. This court has no power to substitute its judgment for that of the trier of the facts.

The Court assumes, without deciding, that “good cause” existed from April 11, 1961, to July, 1962. I take the position that good cause existed continuously until he filed his claim. Prior to the operation, Beasley went to Dr. Dansby, who first saw him on April 21, 1961. Beasley first saw Dr. Hoerster within a day or two after the accident. Dr. Dansby said that an X-Ray diagnosis enabled him to determine that Beasley was suffering from a herniated disc between the 4th and 5th lumbar vertebrae, and referred Beasley to Drs. Hinchey and Day at San Antonio, who found that the spinal cord was involved and referred Beasley to Dr. Ralph Munslow, a neurosurgeon. Dr. Munslow advised Beasley to return to Llano and enter the hospital and be “treated with traction to see if he could get relief in that manner.” Beasley returned to Dr. Dansby who hospitalized him and applied traction. This treatment afforded no relief, and the operation followed. Beasley was told before the operation that he would be “good as new” and that he believed the doctors. Dr. Dans-by testified that Dr. Munslow was “highly optimistic” about Beasley’s recovery. There is no evidence that Dr. Munslow ever at any time changed his opinion, or that Dr. Dansby changed his opinion within the time he was “seeing” Beasley. Beasley testified that he did not want to file a claim if he was going to “get all right,” and that in July, 1962, he had some misgivings about whether he was going to get well or not. He testified that when he returned to the hospital in July, 1962, he was put in traction; that he did not know whether the “traction” gave him relief or “just lying there.” He said he did get some relief. It should be noted that there is no testimony that the doctor or anyone at the hospital or any place told him that he would not get well. The jury could have concluded from the fact that the doctor put Beasley in traction in July, 1962, that he, the doctor, still believed Beasley could recover. The doctors gave no indication that Beasley would not recover until December, 1962. These facts are sufficient to support the finding that “good cause” was shown up to November 7, 1962. There is no evidence that any of the doctors ever told Beasley at any time prior to November 7, 1962, that he would not get well. The claim was filed on this latter date, and it was not until December, 1962, that Dr. Henry Hoerster said he thought Beasley had some disability. The fact that Beasley, in July, 1962, had some “misgivings” about recovering is not conclusive that he was not still relying upon his doctors’ statements that he would in time be as good as new. Beasley was not a malingerer but to the contrary his every act was calculated to save money for the insurer. The cost of an operation and the expenses incident thereto were far less than the award for total and permanent disability in this case.

The facts in this case are much stronger in support of continuous good cause than the facts relied upon in any of the good cause cases referred to herein. It is true that Beasley knew he should file a claim, but he also knew that he had been told by the doctors who operated that he would be as good as new after the operation. Beasley knew from the beginning that his injuries were serious, but he had been told he would be a new man after the operation. My position is that Beasley acted as a reasonably prudent person in submitting to the operation after being told by the doctors that he would be a “new man” after the operation and that he had the right to rely upon such representation until he filed his claim on November 7,1962, even though he had some “misgivings” about getting well.

In the Hardin case, supra, the claimant believed that her injuries were trivial. The Court, in effect, held that the claimant did not have a bona fide belief which would lead an ordinarily prudent person to believe that his injuries were trivial and temporary. No doctor told the claimant, Mrs. Hardin, that she would be well. To the contrary, a doctor executed a certificate in which he stated “the patient had been continuously disabled, and ‘according to history discontinued work January 19, 1951.’ ” In the Perkins case, supra, this Court held that “good cause” had not been shown. The facts reflect why we so held. We held that Perkins knew the law and could not rely upon a promise made some four months after the accident. The facts there are in no wise comparable to the facts presented here which show complete reliance of a patient upon his doctor. He submitted to the operation, confidently believing that he would regain his strength and thereafter continue gainful employment for which he was qualified prior to his injuries. All of the facts were related to the jury, including Beasley’s anxiety and frustration in regard to the filing of his claim.

Texas Casualty desired to minimize the claim by paying for an operation, the cost of which would be much less than the amount of recovery by the claimant based upon a finding of total and- permanent disability. On the other hand, Beasley agreed to the operation because he relied upon the representations of the doctor. Since the doctors at no time prior to November 7, 1962, indicated that they had changed their opinion, the jury had ample reason to conclude that Beasley continued to rely upon the doctors until November 7, 1962. It is our duty to construe the evidence most favorably for the claimant and uphold the jury verdict. It was never the intention of the Legislature that the provisions of Article 8307, § 4a be applicable in a situation where the insured has recognized liability to the extent of paying weekly compensation and inducing the injured party to submit to an operation.

The action of the attorneys employed after July, 1962, is in keeping with the history of the relationship between the insured and the insurer. The attorneys were not negligent, but acted as reasonable men would under all the circumstances. Therefore, the rule that the insured is charged with the negligence of his attorney or attorneys cannot be invoked.

The judgment of the trial court and the Court of Civil Appeals should be affirmed.

ON MOTION FOR REHEARING

CALVERT, Justice.

In his motion for rehearing Beasley calls our attention to the fact that in addition to awarding him a recovery of benefits for permanent, total incapacity, the trial court’s judgment, affirmed by the Court of Civil Appeals, awarded a recovery of medical and hospital expenses incurred by him in 1962, and suggests that the judgment should have been affirmed to this extent.

Beasley bases his right to recover medical and hospital expenses on one sentence in section 7 of Art. 8306, as amended by Acts 1957, Reg. Ses., 55th Leg., ch. 397, p. 1186, as follows:

“The association shall furnish such 'medical aid, hospital services, nursing, chiropractic services, and medicines as may reasonably be required at the time of the injury and at any time thereafter to cure and relieve from the effects naturally resulting from the injury.”

The quoted sentence is but the first of several in sec. 7 in a quite lengthy act amending several sections of Arts. 8306, 8307 and 8309.

Before the 1957 amendment, sec. 7 of Art. 8306 provided, generally, that the insurer should furnish reasonable medical and hospital services for an injured workman during the first four weeks following injury, and, upon proper weekly certificates, should furnish additional medical services for a total period of not exceeding ninety-one days and additional hospital services for a total period of not exceeding one hundred and eighty days. The amendment of 1957 removed the time limitation on the insurer’s liability for medical and hospital services and abrogated the requirement for weekly certificates showing the necessity therefor. The Act of 1957 also added a new paragraph to section 5 of Art. 8307. As pertinent here, the new paragraph provides that an award of the Industrial Accident Board or a judgment of a court shall not include any cost or expense of medical or hospital services not actually furnished to an injured employee prior to the date of the award or judgment, and makes the first final award or judgment res judicata of the insurer’s liability for all such expense which could have been claimed up to the date of the award or judgment and of the issue that the injury of the employee is subject to the provisions of the compensation law with respect to such items. The paragraph further provides that the Board shall have continuing jurisdiction to make successive awards for the cost of medical and hospital services incurred after the first final award or judgment and during a six-month period immediately preceding each such award.

Beasley assumes that his claim for medical and hospital expenses is governed by the provision which authorizes the Board to make successive awards, and argues that inasmuch as such expenses were incurred within six months of the date on which his claim was filed, the award and judgment therefor should be upheld. Aside from the fact that this Court does not have constitutional power to change the plain wording of the statute, it is obvious that the claim is not governed by the provision authorizing successive awards. The award is not a successive award; it is the first award made by the Board with respect to Beasley’s claim for compensation, and the law governing the making of first awards controls.

A part of the law governing the making of first awards is the requirement in sec. 4a of Art. 8307 that claims for compensation be filed within six months of the day of injury unless good cause for late filing be shown. Claims for expenses incurred for medical and hospital services may be prosecuted by the injured workman or by owners of the claims, and right of recovery may be adjudicated by the Board and by the courts in the same or in entirely separate proceedings and suits. Maryland Casualty Co. v. Hendrick Memorial Hospital, 141 Tex. 23, 169 S.W.2d 969 (1943). In this case the Board made only one award. It directed Texas Casualty to make payment to the owners of the claims for medical and hospital services and to pay certain compensation benefits to Beasley. The Board’s award was vacated when Texas Casualty filed its suit to set the award aside, and it liability for payment of the medical and hospital expenses could only be established by cross-action. The owners of the claims did not file a cross-action. Beasley did. In his cross-action Beasley alleged that he was obligated to pay the expenses and he sought recovery of the amount thereof. We need not decide whether a lack of diligence by Beasley in filing his claim for compensation would have defeated a suit by the owners had they sought recovery on their claims for medical and hospital services. That is not the case before us. We are well convinced, however, that if an injured employee pays such expenses, or recognizes his obligation therefor and sues for them and the owners are content to look alone to him for payment, such expenses become a part of his claim for compensation within the meaning of sec. 4a, Art. 8307 and are barred when his claim for weekly compensation benefits is barred.

We have found no Texas case dealing with this question, but to hold otherwise would be contrary to the spirit of the limiting statute. Payments made or obligations incurred by an employee for medical or hospital services are incidental to his claim for statutory benefits for incapacity and are usually much less. The Legislature can hardly have intended that while an employee’s claim for weekly benefits should be barred by his negligence in filing claim therefor, he should nevertheless be entitled to recover his medical and hospital expenses. Analagous and in accord with our holding are Dornbos v. Bloch and Guggenheimer, 326 Mich. 626, 40 N.W.2d 749 (1950); Coombs v. Nash Refrigeration Co., 18 N.J.Misc. 421, 14 A.2d 44 (1940); Trehern v. Grafe Auto Company, 232 Miss. 854, 100 So.2d 786 (1958); Canada Dry Bottling Co. of Florida v. White, 153 Fla. 70, 13 So.2d 595, 596; and Cook v. International Paper Co., La.App., 42 So.2d 558, 560, in which it is held that statutory periods of limitation barring a workman’s right to compensation benefits also bar his right to recover medical and hospital expenses.

The motion for rehearing presents no new matter other than that discussed. The motion for rehearing is overruled.

      . “SPECIAL ISSUE NO. 17: Do you find from a preponderance of the evidence that the Cross-Plaintiff Miles Clifford Beasley believed that the operation performed upon him in May, 1961, would so repair the personal injuries sustained by him, if any, on April 11, 1961, that he would not sustain any serious disability after he recovered from the operation?
      “Answer, ‘Yes’ or ‘No’
      “We, the Jury, answer: Yes
      “SPECIAL ISSUE NO. 18: * * * Do you find from a preponderance of the evidence that such belief, if any, constituted good cause as that term is defined herein for the Cross-Plaintiff’s failure to file his claim with the Industrial Accident Board up until the time the same was filed?
      “Answer ‘Yes’ or ‘No’
      “We, the Jury, answer: Yes”

      . “Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of tbe first distinct manifestation of an occupational disease; or, in ease of death of the employee or in the event of his physical or mental incapacity, within six (6) months after death or the removal of such physical or mental incapacity. For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board.”

      . All Article references are to Vernon’s Texas Civil Statutes.


author: PER CURIAM.

text:
    Kathryn DOWNS et vir, Petitioners, v. CITY OF ABILENE et al., Respondents.
    No. A-10703.
    Supreme Court of Texas.
    May 26, 1965.
    Schulz & Hanna, Yates & Yates, Abilene, for petitioners.
    Les Cochran, Abilene, for respondents.
   PER CURIAM.

This is an appeal from an order of the District Court refusing to grant petitioners a temporary injunction. The City of Abilene filed in the Court of Civil Appeals a motion to dismiss the appeal on the ground that the controversy had become moot. The motion was granted, and the Court of Civil Appeals dismissed petitioners’ appeal. 387 S.W.2d 68. Petitioners concede that the matter of the temporary injunction is moot. They contend, however, that the proper order to have been entered by the Court of Civil Appeals would have been to dismiss the cause rather than to dismiss the appeal.

Writ of error is granted without reference to the merits of the matter decided below. The orders of such courts pertaining to the temporary injunction are set aside, and the cause, insofar as it relates to the matter of a temporary injunction, is dismissed at petitioners’ cost. Cameron v. Saathoff, 162 Tex. 124, 345 S.W.2d 281 (1961); Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725 (1958).