text:
    BOARD OF EDUCATION OF LOUISVILLE, Kentucky, et al., Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 21, 1975.
    April 28, 1974.
    Rehearing Denied June 6, 1975.

      Henry A. Triplett, Hogan, Taylor, Den-zer & Bennett, Louisville, for appellants.
    John A. Fulton, Will H. Fulton, Woodward, Hobson & Fulton, E. Preston Young, Louisville, for appellee.
   CULLEN, Commissioner.

The question in issue on this appeal concerns what transitional and permanent structuring of the Jefferson County Board of Education shall follow a merger of the Louisville Independent School District with the Jefferson County School District. The circuit court held unconstitutional, as constituting local and special legislation prohibited by Section 59 of the Kentucky Constitution, certain statutes making special provisions for such structuring where an independent school district embracing a city of the first class (of which Louisville is the only one) merges with the county school district of the county containing that city. The statutes held unconstitutional were KRS 160.042 (both in its original form and as amended by Chapter 224 of the Acts of 1974), KRS 160.044, and those provisions of KRS 160.160, 160.200 and 160.210 added by their amendment by Chapter 224 of the Acts of 1974.

The net effect of the judgment would be that following the merger of the Louisville Independent School District with the Jefferson County School District the resulting district would be governed by a county board of education which would consist initially of the members of the Jefferson County Board of Education in office when the merger took place, and thereafter, as the terms of those members respectively expired, of successors elected from the five voting divisions of the district, reformed to include the city area. Whether the board initially would include also some or all of the members of the former city board, until the expiration of their respective terms, is a matter on which the parties to the appeal do not agree, and which we need not decide.

If the judgment were set aside, and the statutes in question held constitutional, the effect would be that all of the incumbent members of the Louisville Board of Education would serve on the board of the merged district (with the county members) until the expiration of their respective terms, and commencing with the general election in 1975 elections would be held, from seven divisions created by KRS 160.-210 as amended, to create a permanent board of seven members.

The appellants here are the Louisville Board of Education and its individual members, who maintain that the statutes held unconstitutional by the judgment appealed from are in fact constitutional. As hereinbefore stated, the question is whether the statutes constitute “local or special” legislation such as is forbidden by Section 59 of the Kentucky Constitution.

The two major differences between the statutes applicable to merger of an independent school district embracing a city of the first class with the county district of the county in which the city is located, and the statutes applicable to merger of all other independent school districts with the county district, are (1) that under the former statutes (KRS 160.042 and 160.200 both as amended in 1974) all of the members of the independent board will serve on the merged board until the expiration of their terms, while under the latter statutes (KRS 160.041 as construed in Lafollette v. Ovesen, 314 Ky. 535, 236 S.W.2d 457) the matter of whether all or some of the independent board will serve on the merged board will depend upon agreement as to the terms of the merger, or perhaps (as said by the Attorney General in OAG 37,927) upon order of the State Board of Education ; (2) that under the former statutes (KRS 160.160 and 160.210 as amended in 1974) the merged board ultimately will consist of seven members, whereas under the latter statutes (KRS 160.160 and 160.210 unamended) the board will consist of five members.

Although Section 59 of the Kentucky Constitution forbids “special or local” legislation on a number of specified subjects, including “the management of common schools,” the proposition is well settled that the General Assembly may enact class legislation if the classification is made to depend upon natural, real and substantial distinctions, and that a classification having a reasonable basis does not violate Section 59 the same as it does not constitute a denial of equal protection under the Federal Constitution. See Reid v. Robertson, 304 Ky. 509, 200 S.W.2d 900; Miller v. Nunnelly, Ky., 468 S.W.2d 298; Ditty v. Hampton, 490 S.W.2d 772.

The narrow question with which we are confronted in the instant case is whether the basis on which the classification made by the merger statutes rests is a reasonable one. The governing rule is that while classification of cities for the purpose of their organization or government is permissible on the basis of size and population alone, any other classification on the basis of the size and population of cities or counties is permissible only if the size and population of itself has an appreciable relevancy to the subject matter of the legislation. Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496.

In the Board of Education case just cited, popularly known as the “Dundee Case,” this court held unconstitutional a legislative Act which made special provisions, applicable only to counties containing a city of the first class, for transfer of an area, lying in one school district adjacent to its boundary with another district, from the former district to the latter. Under the law applicable to all counties except one containing a city of the first class, the ultimate decision as to the transfer was to be made by school authorities (the affected local boards of education or the State Superintendent or State Board). Under the special Act applying only to counties containing a city of the first class, the ultimate decision was to be made by the voters in the area sought to be transferred.

The appellee Jefferson County Board of Education in the instant case relies heavily on the Dundee decision. It is our opinion, however, that the holding in the Dundee case, that the basis of the classification there had no relevancy to the subject matter of. the legislation, is not conclusive of the lack of sufficient relevancy in the instant case. In the Dundee case no conceivable reason was found to exist why in a large county the voters of the area affected should have the decisional power over a transfer of territory between districts, while in all other counties the power was in the school authorities. Any considerations relevant to size and population would dictate that the decisional power be in the school authorities in the large county.

The statutes with which we are concerned in the instant case deal directly with the management structure of the merged school district, as to which subject we think the characteristics possessed by a large urban center of population have relevancy. The larger size of the student population, the greater amount of property to manage, and the more extensive financing requirements are significant factors. Another factor serving as a supporting basis for the classification is that in large urban centers there are likely to be and generally are localized enclaves or areas populated almost exclusively by various minority groups, ethnic and otherwise, which are entitled to and should be assured of fair representation, and are specially needful of it. This legislation obviously is directed to and justified by that particular circumstance. By providing for seven board members rather than five it assures such representation and tends to eliminate what probably would be a major source of disagreement in merger negotiations. The principle of judicial notice permits us to recognize, as common sense equally forbids us to ignore, these facts of life. Thus it is our opinion that the statutory provisions for an ultimate seven-man board are valid. Support for our view is found in Sims v. Board of Education of Jefferson County, Ky., 290 S.W.2d 491; State v. Miller, Mo., 13 S.W. 677, and Latham v. Board of Education of the City of Chicago, Ill., 201 N.E.2d 111.

As concerns the provision for continuance in service by the members of the board of the independent district until their terms expire, again we think that the factors on which the classification rests have an appreciable relevancy to the subject matter of the legislation. A city of the first class, being of the highest urban concentration of Kentucky cities, reasonably may be expected to have encountered special problems arising from urbanization, including those related to ethnic minorities. It seems logical that during the transition period the merged board should have the full benefit of the experience of the members of the independent board with respect to those problems. The same need for this presumably will not be as great in the case of the merger of a small independent district with the cpunty district, which fact justifies the differentiation made by the legislation in question in not providing for service on the merged board by the members of the board of education of an independent district other than the district embracing a city of the first class, in a county containing such a city, in case of a merger by the former district with the county district. (Anchorage is such an independent district in Jefferson County but is not involved in the instant case.)

The appellee Jefferson County Board of Education argues that the provision of the 1974 Act for a permanent seven-member board for the merged district has no rational basis because the Act makes such provision only in the case of a merger under KRS 160.041 (by application of the independent district to the county district, determinable by the State Board of Education in case in inability to agree), and not in the case of a merger under KRS 160.040 (by concurrent action of the two districts). We think there is a rational basis. On their face, both KRS 160.040 and 160.041 would authorize a merger by agreement, the only difference being that under KRS 160.040 either district might originate the merger proposal, whereas under KRS 160.041 the proposal must be originated by the independent district. As a practical matter, however, it is reasonably plain that there will be no occasion to resort to KRS 160.041 unless the parties in informal discussions have concluded that they will not be able to agree. Thus, KRS 160.041 is limited in practical application to the situation in which the parties cannot agree and the matter will end up for decision by the State Board of Education. It appears to us that the reasons which justify a seven-member board may in many instances be the very reasons why the two districts will not be able to agree, so in this is the reasonable basis for the legislative classification providing for a seven-member board only in case of a merger under KRS 160.041.

The fact that the 1974 Act specifically creates, by reference to census tracts, the seven election divisions to be used in the merged district for future elections of board members, whereas in all other districts the election divisions are to be laid out by the board of education itself, is again, we think, justified by the fact that this is an area most likely to be one of local disagreement by reason of the very factors which differentiate school problems in cities of the first class.

The judgment is reversed with directions to enter judgment in conformity with this opinion.

All concur.

      . In Lafollette v. Ovesen, 314 Ky. 535, 236 S.W.2d 457, this court held that in a merger under KRS 160.041 the boards of the merging districts could agree that all or part of the members of the board of the independent district serve on the board of the merged district until the expiration of their terms, and in OAG No. 37,927, under date of March 27, 1956, the Attorney General of Kentucky stated his opinion that in a merger under KRS 160.041 the State Board of Education, in case of disagreement, could direct that any or all of the members of the board of the independent district so serve. Pending the instant appeal, the State Board of Education, apparently relying on the foregoing authorities, held that following the merger here in question some of the members of the Louisville Board of Education would be entitled to serve, not beyond the expiration of their terms, on the board of the merged district.


source: Caselaw Access Project

author: CATINNA, Commissioner.

license: Public Domain

text:
    Homer JOHNSON and Haddix Coal Company, Appellants, v. Hazel HADDIX, Appellee.
    Court of Appeals of Kentucky.
    May 9, 1975.
    Charles Landrum, Jr., Landrum, Patterson & Dickey, Lexington, for appellants.
    James S. Hogg, Jackson, for appellee.
   CATINNA, Commissioner.

Homer Johnson and Haddix Coal Company appeal from a judgment entered on a jury verdict awarding Hazel Haddix the sum of $10,000 for injuries she sustained in an accident on the Haddix Coal Company property between an automobile in which she was a passenger and a truck being operated by Homer Johnson. On this appeal Johnson and Haddix Coal Company assert that (1) Hazel Haddix was negligent as a matter of law and they were, therefore, entitled to a directed ver-diet; (2) the instruction on the duty of Homer Johnson to sound his horn was erroneous; and (3) the verdict of the jury was excessive.

On August IS, 1967, Hazel Haddix was a passenger in her Corvair automobile then being operated by Gladys Haddix, her daughter. Gladys was taking Hazel and Amanda Deaton to Jackson. On the way they stopped at the Haddix Coal Company to pick up a payroll check belonging to Amanda Deaton’s husband.

Gladys drove the automobile off Kentucky Highway 1110 and onto the private property of the Haddix Coal Company. After leaving the state highway, Gladys crossed a private road known as the “scales road,” which ran roughly parallel with the highway. After crossing this road, she parked the automobile beside the trailer office fronting on the scales road.

While traversing the Haddix Coal Company property, Gladys observed an unattended truck parked on the scales road at a point approximately fifteen to twenty feet from the place where she finally parked. When Amanda Deaton was ready to leave, Gladys backed the automobile out of the parking place and onto the scales road where it collided with a truck being operated by Homer Johnson.

There is substantial conflict in the evidence concerning what actually happened. Prior to and at the time of the accident, Johnson was attempting to start a truck by pulling it with the one involved in the accident. The truck was being operated on the scales road which passed directly behind the parked Haddix automobile.

Gladys and her passengers testified that at the time she started to back out of the parking place, the Johnson truck was parked on the scales road about fifteen to twenty feet from the Haddix automobile. The driver, Homer Johnson, was standing on the ground beside the truck, and just as they started to back out, he started to get into the cab of the truck. Gladys said that after she had backed the automobile out onto the scales road about nine or ten feet she saw the Johnson truck bearing down upon the automobile. Before she could move from the path of the oncoming truck, the right front bumper of the Johnson truck collided with the right rear fender of the Haddix automobile.

Johnson testified that he parked directly behind the Haddix automobile and after making an adjustment on the tow chain he started the truck and had proceeded about fifteen feet when someone caused him to stop. He said it was only after he stopped that he discovered the Haddix automobile had backed into the side of the truck.

The salient fact in this case that demands attention is that this accident occurred when an automobile backed out of a private parking place onto a private road.

The claim that Hazel Haddix was negligent as a matter of law is predicated upon Gladys Haddix’ violation of statutory duties required of a driver entering a street or roadway from private property. KRS 189.330(7), KRS 189.330(4). Haddix Coal Company and Johnson assert that for the purposes of the law the backing of the Haddix automobile from the parking area onto the scales road is identical to backing an automobile from a private driveway on private property onto a street or roadway.

The duties required of a driver by KRS 189.330(7) and 189.330(4) or any other statutory provision regulating the operation of a motor vehicle do not apply where the motor vehicle is being operated on private property at the time of an accident.

In Blashfield Automobile Law and Practice, 3rd Edition, Section 181.1, pages 515—516, we find the rule stated as follows:

“Statutory provisions regulating the operation of motor vehicles on public highways have been held not to apply to the operation of motor vehicles on private premises. In accordance with this rule, particular provisions, such as those governing the operation of vehicles at intersections or when backing and starting, requiring vehicles to drive on the right half of the road or to give warning signals, or governing the weight of motor vehicles, have been held inapplicable.
“Under some authorities, in the absence of a statute or rule of the road governing the operation of motor vehicles on private property, the question of negligence thereon is governed by the common law, but the statutes have been regarded as evidence of customs which should and do guide the operation of vehicles away from the highway.

In Section 181.2, pages 517-519, we find:

“A motorist driving at a place not on a street or highway must use reasonable care to avoid injuring persons or property, and reasonable care should be commensurate with the dangers to be anticipated. The exercise of due caution may require the driver to keep a proper lookout, and to give ample warning of his approach.
“A motorist may not be held liable for injuries or damages sustained while driving on private premises in the absence of negligence on his part.”

In Miller v. Berry, 62 Tenn.App. 1, 457 S.W.2d 859 (1970), the court said:

“Since where this accident happened cannot be classified or defined as an intersection but occurred on private property, the duties and liabilities of the respective drivers must be governed by the basic principles of common law negligence requiring each person to exercise ordinary and reasonable care which an ordinarily careful and prudent person would exercise under the same or similar circumstances. * * *.
“Even though we say the statutory rules of the road are inapplicable, this does not mean the trier of fact, in determining what is ordinary care, cannot rely upon the widely recognized and established practices used in operating vehicles by reason of the common or statutory law. The statutory rules of the road merely set up minimum standards of care. * * *

Negligence on the part of Hazel and the operator of her automobile, Gladys, must be tested within the scope of the above rule. In other words, Gladys, as operator of the automobile, was charged with the duty of exercising ordinary care in its operation.

The rule that the violation of a statute or ordinance is negligence as a matter of law is basically inapplicable. However, a violation of duties required by the statute is to be considered for the purpose of determining whether the driver was exercising ordinary care in the operation of the Haddix automobile. When we eliminate the statutory aspect of negligence as a matter of law and consider the evidence upon the basic principle of common law negligence, ordinary care, we find that it was of such character as to require the submission of the case to the jury. Consequently, the Haddix Coal Company and Johnson were not entitled to have the court grant their motion for a directed verdict.

Haddix Coal Company and Johnson question the correctness of Instruction No. 1 primarily because it placed upon Johnson the duty “to give timely warning of the approach of said truck by sounding the horn.” This instruction detailed the statutory duties to be observed by Johnson in the operation of the truck. As the site of the accident was on private property, the only duty required of Johnson was to exercise such care for his own safety and the safety of others as an ordinarily careful and prudent person would exercise under the same or similar circumstances, and it was not necessary to instruct on specific duties.

We do not reach the question of the ex-cessiveness of the award of the jury.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


text:
    CITIZENS FIDELITY BANK AND TRUST COMPANY, Appellant, v. FENTON RIGGING COMPANY and International Harvester Company, Appellees.
    Court of Appeals of Kentucky.
    May 9, 1975.
    Thomas W. Bullitt, Robert L. Baird, Tarrant, Combs, Blackwell & Bullitt, Louisville, for appellant.
    Freeman B. Blackwell, Louisville, Squire R. Ogden, Ogden, Robertson & Marshall, Louisville, for appellees.
   CATINNA, Commissioner.

The Jefferson Circuit Court, Chancery Branch, First Division, adjudged that a mechanic’s lien filed by Fenton Rigging Company was a superior lien to one asserted by Citizens Fidelity Bank and Trust Company under a security agreement executed to it by Hughes Erecting and Rigging Company, Inc. The bank appeals.

Hughes Company contracted with International Harvester Company to perform certain work on its property located in Louisville, consisting primarily of the removal of heavy equipment and the relocating and installing of steel floors. The contract price was $18,737.50. Hughes Company contracted a major portion of the projected work to Fenton, thereby becoming indebted to it in the sum of $10,399.50.

In April 1970 Hughes Company established a line of credit with Citizens and executed a financing statement covering its accounts receivable, primarily those to become due from Harvester pursuant to the terms of the contract between Hughes Company and Harvester. On May 27, 1970, a security agreement was executed to Citizens by which it acquired a security interest in the accounts receivable. After execution of the financing statement and security agreement, Citizens advanced Hughes Company certain sums of money including the sum of $7,000 represented by a note which was not paid.

Fenton completed its work for Hughes on May 18, 1970, and on July 28, 1970, filed a mechanic’s lien pursuant to KRS 376.010 on Harvester’s property on Critten-den Drive in Louisville to secure the amount due it as a subcontractor for Hughes Company, Fenton filed this action against Hughes and Harvester, demanding judgment against Harvester for $10,399.50, and directing Harvester to pay Fenton from the proceeds of monies becoming due to Hughes Company under the contract, or for a judgment enforcing its mechanic’s lien against the Harvester property. Citizens intervened, asserting a prior lien on any sums which might be due Hughes as a result of its contract with Harvester to secure the payment of the $7,000 note. Harvester admitted that it was indebted under the Hughes Company contract in the sum of $10,399.50 (later determined to be $11,720).

The trial court found that Fenton had a mechanic’s lien on the property of Harvester to secure it in the payment of sums due from Hughes Company, which lien was prior to the lien asserted by Citizens under its security agreement upon any accounts due from Harvester pursuant to the terms of its contract with Hughes. The court also adjudged that there be paid to Harvester’s attorneys, Ogden, Robertson, and Marshall, fees in the amount of $200 for services rendered in the proceeding.

Upon this appeal, Citizens claims that the lien acquired by it upon the accounts receivable of Hughes by reason of the recorded financing statement and security agreement was prior to that asserted by Fenton.

KRS 355.9-101 through 355.9-507, Secured Transactions, detail the procedure parties must follow in order to obtain a lien upon accounts receivable. The problem area we here encounter concerns a determination of what constitutes the accounts receivable upon which Citizens had a lien by reason of its security agreement. KRS 355.9-106 defines “account” as meaning any right to payment for goods sold or leased or services rendered which is not evidenced by any instrument or chattel paper. “Contract right” is defined as meaning any right to payment under a contract not yet earned by performance and not evidenced by any instrument or chattel paper. The line of credit established by Hughes Company with Citizens was therefore secured by its “contract right” arising out of the Harvester agreement. The security agreement executed to Citizens granted a lien on all sums accruing and payable to Hughes Company in the future; however, it was essential that such future accruals be payable to Hughes Company and not to someone else.

When Hughes Company failed to pay Fenton as required by their agreement and Fenton filed its mechanic’s lien upon Harvester’s property to secure it in the payment of that amount, Harvester became directly obligated to pay Fenton sums claimed by it for the purpose of discharging the debt of Hughes and obtaining a release of the lien asserted by Fenton on its real property and equipment. Fenton’s services were performed as a part of the Hughes’ contract with Harvester, and, consequently, when Harvester became obligated to pay Fenton sums which otherwise would have been due Hughes Company under the contract, they ceased to be a part of Hughes’ “contract right” and therefore did not become accounts receivable covered by the security agreement executed by Hughes to Citizens.

As a consequence of Harvester’s becoming primarily liable to Fenton for services performed, the amounts due did not become subject to the lien of Citizens. Harvester was, therefore, obligated to Fen-ton first for the amount due it and, second, to Hughes Company for the balance that might be due under the contract, and upon that balance Citizens had a lien to secure it in the payment of the note executed by Hughes Company to the bank.

We have held in the past that the statutory lien of KRS 376.010 is restricted to land, buildings, and improvements, and will not encumber personal property or funds belonging to the party against whom the lien is asserted. There are other jurisdictions which have construed the Commercial Code and particularly Section 9-310 (KRS 355.9-310) so that a validly filed mechanic’s lien becomes prior to any lien created-by the Code regardless of the fact that it is confined to personal property and accounts receivable or contract rights. Cf. National Bank of Detroit v. Eames and Brown, 50 Mich.App. 447, 213 N.W.2d 573 (1973); Corbin Deposit Bank v. King, Ky., 384 S.W.2d 302 (1964).

Citizens also asserts that it was error to allow an attorney’s fee to the lawyers representing Harvester. However, the attorneys were not made parties to this appeal; therefore, the court cannot consider this claimed error.

The judgment is affirmed.

All concur.


author: HENRY, Justice.

text:
    Lucille J. WHITEHEAD, Appellant, v. Earl DAVIDSON et al., Appellees.
    Supreme Court of Tennessee.
    April 14, 1975.
    Gerald Largen, Kingston, for appellant.
    Paul Dunn, Jenkins & Jenkins, Knoxville, for appellees.
   OPINION

HENRY, Justice.

This action at law seeks to enforce an oral agreement between a liability insurance company and the driver of a vehicle struck by its insured, with respect to settlement of personal injuries and property damages.

The trial judge sustained a motion to dismiss and plaintiff has perfected an appeal to this Court.

I.

The complaint, filed 21 September 1972, alleges the occurrence of an accident on 22 September 1969 with a vehicle insured by State Farm Mutual Insurance Company. In view of the disposition we make of this case we set forth verbatim the allegations of the complaint from which plaintiff would have the Court find the existence of a contract:

The defendant, Davidson, was insured by the defendant, State Farm Mutual Automobile Ins. Co. Said insurance company contacted the plaintiff and her attorney. The company acknowledged liability as the insurer of the defendant, Davidson, and acknowledged that they were liable for the damages sustained by the plaintiff.
They promised that they would negotiate the claim with her and would pay her the money due within their policy limits. She was unable for a long period of time to give them an accurate estimate as to the extent per damages, (sic) as she was under the constant care of her physician and they were unable to give her a reasonable estimate of the extent of her injuries. The negotiations with the company were handled through her attorney and adjustor for said Company. This adjustor left said company some time shortly before the expiration of one year, from the date of the accident, but at no time was there any indication that the company had changed their mind about their liability or their willingness to pay the reasonable damages within their policy limits. The plaintiff’s attorney attempted to contact the automobile insurance company, when the adjustor left that company and no replacement had been appointed, for him. He was told that a replacement would be appointed shortly and would call upon him to continue efforts to settle his claim. Thereupon, Mr. David Griffin was appointed as adjuster and did call upon plaintiff’s attorney, and at that and for the first time plaintiff’s attorney was told that the company was relying upon the Statute of Limitations and would not pay any monies on this claim. Plaintiff avers that this is a case within the rule of Jackson v. Kemp, 211 Tenn. 438, 365 S.W.2d 437, wherein the parties have contracted with each other as to the settlement of a claim and the plaintiff refrained from pursuing her remedy at law based upon said contract, and promise to pay her reasonable damages, within their policy limits.

Thereafter, the complaint concludes by asserting that plaintiff sues for “$10,000.00 based on the contract to settle . . . ”

There is no demand for judgment with respect to personal injuries and property damage; the complaint simply alleges that “plaintiff was injured about her person and the automobile was badly damaged.”

The defendants moved to dismiss on the ground that, except as to property damages, the complaint fails to state a claim upon which relief can be granted. In their motion the defendants plead the one-year statute of limitations (T.C.A. § 28-304) and assert that the allegations of the complaint are not sufficient to support a contract, but are merely “an agreement to agree.” They further assert that the complaint shows that neither plaintiff nor her attorney was mislead into not filing a timely lawsuit and that plaintiff refused to timely negotiate and settle.

The trial judge sustained the motion. Plaintiff nonsuited as to her claim for property damages, prayed and was granted an appeal.

Appellant pleads and relies upon Jackson v. Kemp, 211 Tenn. 438, 365 S.W.2d 437 (1962). We find this reliance to be misplaced. In Jackson, the pertinent facts were that the insurance company’s adjuster and claims manager promised that

“if plaintiff would not employ an attorney to represent, but would deal directly with (the claims manager) and would not file suit in the claim, that he, as claims manager, would authorize and direct his company on behalf of the defendant . . to pay the plaintiff’s hospital bills, medical bills and as soon as extent of his injuries were determined would pay plaintiff for his injuries.

Pursuant to this commitment and relying thereon, Jackson did not employ an attorney and took no action. The declaration alleged forbearance.

In the instant case the complaint only alleges a “contract to settle” as a conclusion of the pleader. The complaint merely alleges factually and specifically that (1) the insurance company contacted plaintiff and her attorney and acknowledged that they were liable, and (2) that “they promised they would negotiate the claim with her and would pay her the money due within their policy limits.

Appellant was represented by counsel.

The complaint alleges no reliance upon the promise to negotiate, nor does it assert forbearance as the consideration for failure to institute suit within the statutory period.

Plaintiff made no effort in the court below to amend her complaint.

Viewed from any angle this complaint was “stillborn” and nothing in the Rules of Civil Procedure or the substantive law of this jurisdiction gives the Court any right to breathe into it any life or vitality.

The judgment of the trial court is affirmed. The costs of this appeal are taxed against appellant.

SANDERS, Special Justice and COOPER, BROCK and HARBISON, JJ., concur.


text:
    SAFECO INSURANCE COMPANY, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    Supreme Court of Tennessee.
    April 28, 1975.
    Max D. Lucas, Jr., Kirkpatrick & Lucas, Memphis, for appellant.
    Thomas F. Johnston, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for appellee.
   OPINION

HENRY, Justice.

In this action between two insurance companies, the question presented for determination is whether clauses appearing in the respective policies should be construed so as to require proration, or whether one provides basic and primary coverage and the other secondary or excess.

The Circftit Judge sustained a motion for judgment on the pleadings, holding that appellee’s policy “is obviously an excess policy known in the trade as an ‘umbrella’ policy or a personal catastrophe in excess of one hundred thousand ($100,000.-00) dollars, of underlying insurance issued by the plaintiff, Safeco Insurance Company.”

The record reflects that Safeco Insurance Company issued its policy of automobile liability insurance affording coverage to J. W. McDonald, and members of his family. His son, Paul McDonald, struck a minor pedestrian and, following suit in the United States District Court, at Memphis, judgments were awarded against him in the sum of two hundred and one thousand, three hundred and seventy-five ($201,375.-00) dollars.

Safeco Insurance Company paid one hundred thousand ($100,000.00) dollars, the limit of its coverage.

The McDonalds were also covered by a Personal Catastrophe policy issued by the Insurance Company of ■ North America, with stated limits of one million ($1,000,000.00) dollars.

The Insurance Company of North America paid the balance of the judgment in the sum of one hundred and one thousand three hundred seventy-five ($101,375.00) dollars.

Thereafter Safeco Insurance Company instituted this action insisting that there was a repugnancy between the provisions of the respective policies and, therefore, the coverage should be prorated on the basis of their respective limits of coverage with Safeco paying one eleventh (½.) and INA paying ten elevenths (10Ai) of the judgment.

The provision in question reads as follows :

SAFECO
OTHER INSURANCE: If the insured has other insurance against a loss covered by the Liability Section of this policy SAFECO shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance hereunder with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance. This is a standard "other insurance” clause.

INSURANCE COMPANY OF NORTH AMERICA

This policy shows on its face that the coverage is “in excess of the retained limit as stated herein.”

Sec. 4 of the General Conditions reads, in part:

Retained Limit — limit of liability. The company’s liability shall be only for the Ultimate Net Loss in excess of the Insured’s retained limit defined as the greater of:
(a) an amount equal to the limit (s) of liability indicated beside underlying policy(ies) listed, or insurance described in Schedule A hereof, plus the applicable limits of any other underlying insurance collectible by the insured; . . . (emphasis supplied)

In Schedule A, which is attached to and made a part of the policy, the insured warrants that he has underlying insurance (to the extent here applicable) as follows:

b. Automobile Liability — Bodily Injury Liability
$100,000 each person
$300,000 each occurrence

We think it is self-evident that there is no conflict, inconsistency or repugnancy between the appropriate provisions of these policies. It is obvious that Safeco’s coverage is basic and primary and that INA provides personal catastrophe, "umbrella” or excess coverage.

The respective undertakings or obligations are entirely different.

Safeco’s obligation is under the usual form of automobile liability coverage, and is the “underlying insurance.” INA’s coverage comes into play if, and only if, there is underlying insurance. Without the basic coverage provided by Safeco, INA would would have no contractual liability.

It follows that the INA policy was not “other insurance” within the meaning of that term as it is defined in the Safeco policy.

It results that this is not a proper case for proration between insurance carriers.

In Wommack v. United States Fire Insurance Company, 323 F.Supp. 981 (W.D.Ark.1971), the catastrophe liability policy was substantially the same as the INA policy, to the extent above quoted. The Court held that the carrier had no liability until insured had incurred a net loss in excess of underlying policies.

The factual situation in Aetna Insurance Company v. State Automobile Mutual Ins. Co., 368 F.Supp. 1278 (W.D.Ky.1973) is not precisely the same; however, we.think this case is relevant. Aetna issued a policy of Personal Excess Liability with coverage designed “to indemnify the insured for ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay as damages because of personal injury or property damage.” The definition of Retained Limit, is almost verbatim with that contained in INA’s policy in this suit. In holding that the umbrella policy was designed to indemnify the insured for only those amounts which were not covered by other insurance, the court said:

The language used in the coverage portion of plaintiff’s policy, taken together with the definition of the words “retained limit”, clearly indicate the plaintiff’s intention not to escape liability, but to protect the insured against loss where the amounts recoverable from primary insurance and by other secondary coverages are insufficient to carry out this function. Id. at 1282.

The whole theory of catastrophe or “umbrella” policies, as is indicated by their designation, is that the insured protects himself against catastrophic loss by the procurement of insurance coverage which takes up where his conventional policy leaves off.

We hold that the trial judge reached the correct conclusion and we affirm the judgment of dismissal; the costs are taxed against the appellant.

FONES, C. J, and COOPER, BROCK and HARBISON, JJ., concurring.


author: PER CURIAM.

text:
    Edward MITCHELL et al., Appellants, v. Benjamin E. CARMICHAEL et al., Appellees.
    Supreme Court of Tennessee.
    March 31, 1975.

      Jack Kershaw, Nashville, for appellants.
    Robert W. Simms, County Atty., Fay-etteville, W. Henry Haile, Asst. Atty. Gen., Nashville, for appellees.
   OPINION

PER CURIAM.

This action was instituted in the Chancery Court of Davidson County, Tennessee by citizens of Lincoln County, against the Commissioner of Education of Tennessee and the State Attorney General and other State officials. Also joined as defendants were the County Judge of Lincoln County, Tennessee and a- number of other county officials.

Following the release of the opinion of this Court in the case of Adams v. State ex rel. Chattanooga Coke & Chemicals, 514 S.W.2d 424 (Tenn.1974), on September 30, 1974, the Chancellor, sua sponte, dismissed the action as to the Lincoln County defendants upon the ground that the Chancery Court of Davidson County, Tennessee had no jurisdiction to determine the issues as to those defendants.

Although there is no order in the record before us praying for and allowing any sort of appeal, there is an order overruling a motion for a new trial and purporting to extend the time to allow the appellants to perfect their appeal.

There is no certification or other compliance with T.C.A. § 27-305, as amended, purporting to permit an interlocutory appeal in this case. Accordingly, for the reasons stated in Frame v. Marlin Firearms Co., Inc., 514 S.W.2d 728 (Tenn.1974), the interlocutory appeal filed in this Court by the appellants is dismissed at their cost.

Because of the public nature of the subject matter of this litigation and related litigation pending in the Chancery Court of Lincoln County, Tennessee, and pursuant to the supervisory jurisdiction of this Court, T.C.A. § 16-331, and its inherent power over the administration of justice and the conduct of attorneys in this state, the following directions are given, and a copy of this opinion will be furnished the Chancellor of the Chancery Court of Lincoln County, Tennessee for his information and guidance.

Following dismissal of their action in the Davidson County Chancery Court as to the Lincoln County defendants, appellants instituted an identical action in the Chancery-Court of Lincoln County, Tennessee against the Lincoln County defendants and also against the State officials who had been joined in the Davidson County case. It is the information of this Court that the Chancery Court at Nashville has subsequently dismissed the Davidson County litigation as to the State officials, as well as to the Lincoln County officials in reliance upon previous decisions of this Court in 1972 and 1973 in the cases of White v. Warf, No. 93495 and Young v. Warf, No. A-1536.

Accordingly the Davidson County litigation now stands entirely dismissed. Although there may be an appeal from the final dismissal of the action at Nashville, this Court sees no reason for delay in the setting and disposition of the Lincoln County case by reason of possible appellate proceedings in the Nashville case.

The Lincoln County suit, which is identical to that which had been filed in Nashville, is also very similar to the proceedings which were the subject of the two unpublished opinions of this Court in 1972 and 1973 above cited. The litigation seeks to prevent the consolidation of certain schools in Lincoln County, Tennessee. A public bond issue, approved by the Quarterly County Court of that county, is being delayed because of the pendency of these actions.

This Court, under its supervisory jurisdiction, will not permit an abuse of legal processes of this state for the purpose of harassment or delay. Every litigant or claimant in this state will be afforded an opportunity to present any meritorious claims he may have. No litigant will be permitted deliberately to harass public officials or delay the transaction of public business.

The oath of an attorney under which he is permitted to practice law in this state, as well as the ethical requirements of Rule 11 of the Tennessee Rules of Civil Procedure, requires that no attorney engage in harassing or unconscionable litigation.

We express no opinion whatever upon the merits of the Lincoln County litigation. We direct the Chancellor, however, to expedite the handling thereof and to set the same for hearing upon the issues presented under the pleadings as quickly as possible.

We recognize that a legitimate question may exist as to whether state officials may be sued in another county, other than the county of their official residence, in proceedings such as these. Where, however, there are bona fide and material local defendants resident in the county of suit, rather than immaterial or token defendants, it may be possible to bring state officials into the county by counterpart service of process. In all events, in the present case, the state officials have willingly submitted to the jurisdiction of the Lincoln County Chancery Courts, and have stated at the bar of this Court that no issue will be raised in those proceedings as to such jurisidiction or as to the validity of any judgment which may be rendered by that Court, insofar as the matters of venue and jurisdiction are concerned.

Accordingly, the Lincoln County suit will proceed with dispatch, and any appellate proceedings therein or in the Davidson County case will also be expedited to the maximum extent possible.

The Chancellor at Fayetteville and the Chancellor at Nashville are directed to advise the Clerk of this Court at Nashville of any attempts at vexatious delay or harassment which may come to their attention, and the proceedings both in Davidson County and in Lincoln County will continue under the direct and close supervision and scrutinv of this Court.

The reason for this extraordinary action on the part of this Court are apparent from the record and from the two unpublished decisions of this Court previously-referred to. This Court will not tolerate the thwarting of the issuance and sale of public bonds by vexatious litigation. Certain statements attributed to counsel for the appellants were read from newspaper articles at the bar of this Court, and were not denied. These statements were of a serious nature and indicated an intention on the part of counsel deliberately to delay the bond issue until building costs have so risen that the proposed school construction can no longer proceed. This is precisely what occurred in the Giles County litigation, which was the subject of the two unreported cases previously referred to. There litigation prosecuted by persons having no standing to sue was permitted to block an otherwise authorized and approved consolidated school project.

This Court, on the other hand, does not in any sense intend to intimidate any person or claimant having standing from prosecuting litigation and raising issues as to the validity of public bond issues and the actions of local or state officials, where the litigation is commenced in good faith and bona fide issues are presented, whether these are ultimately sustained or not.


author: TODD, Judge.

text:
    Donald D. DAVIS, Plaintiff-Appellee, v. J. B. WILSON and Sadler Brothers Trucking & Leasing Co., Inc., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 25, 1974.
    Certiorari Denied by Supreme Court May 12, 1975.

      George W. Yost, Springfield, for plaintiff-appellee.
    R. B. Parker, Jr., and Donald P. Paul, Nashville, for defendants-appellants.
   OPINION

TODD, Judge.

The plaintiff, Donald B. Davis, sued defendants, J. B. Wilson, driver, and Sadler Brothers Trucking and Leasing Company, Inc., owner of a transport truck, for personal injuries and property damage sustained in collision with said truck on January 3, 1972, on U. S. Highway 41 between Adams and Sadlersville, Tennessee. A jury awarded plaintiff $50,000.00, and defendants have appealed.

The first assignment of error is as follows :

“The trial court erred in refusing to grant the motion of these defendants for a directed verdict and in refusing to grant the defendants’ motion for a judgment non obstante veredicto (or, in the alternative, for a new trial), because there was no evidence to support the verdict.”

A motion for judgment non ob-stante veredicto (notwithstanding the verdict) is a test of the pleadings, is not a substitute for motion for a new trial, and is inapplicable to questions of evidence. Bluff City Buick Co. v. Davis, 204 Tenn. 593, 323 S.W.2d 1 (1959); Citizens Trust Co. v. Service Motor Car Co., 154 Tenn. 507, 297 S.W. 735 (1927); Buice v. Scruggs Equipment Co., 37 Tenn.App. 556, 267 S.W.2d 119 (1954); Jamison v. Metropolitan Life Ins. Co., 24 Tenn.App. 398, 145 S.W.2d 553 (1941); Nat. Life & Acc. Ins. Co. v. Amer. Trust Company, 17 Tenn.App. 516, 68 S.W.2d 971 (1934).

The first assignment must therefore be considered as being based upon a motion for new trial and for a directed verdict because there was no evidence to support a verdict for the plaintiff.

The rule has been too often stated and too long accepted to require citation of authority that, in reviewing the action of the Trial Judge on motion of defendant for directed verdict, the appellate court must take the view of the evidence most favorable to the plaintiff, give plaintiff the benefit of all favorable inferences which might be reasonably drawn from the evidence, and disregard all countervailing evidence and inferences; and, if the minds of reasonable men, viewing the evidence in such manner, might differ as to the determinative facts, then the cause should have gone to the jury. In such a case, the appellate courts will not disturb a verdict for the plaintiff. See authorities annotated in 2-A Tennessee Digest, Appeal and Error, § 989.

The review of evidence in a jury case by the appellate court is not to determine where the truth lies, or to find the facts, but is only to determine whether there was any substantial evidence to support the verdict. Short Way Lines v. Thomas, 34 Tenn.App. 641, 241 S.W.2d 875 (1951); Cherry v. Sampson, 34 Tenn.App. 29, 232 S.W.2d 610 (1950).

Even though the members of this Court may not necessarily agree with the factual conclusions reached by the jury, this Court does not re-weigh the evidence, and if some material and substantial evidence supports the verdict, it must be affirmed. Scarbrough v. City of Lewisburg, Tenn.App., 504 S.W.2d 377 (1974).

With these rules in mind, the evidence has been examined.

According to the uncontroverted evidence, the collision occurred when plaintiff’s southbound vehicle met defendants’ northbound vehicle in a curve of a two-lane highway.

The curve required defendant to turn to the left and plaintiff to turn to the right, that is, defendant was on the “outside” of the curve and plaintiff was on the “inside” of the curve.

It is also uncontroverted that, at the time of the collision, it was still dark, that the weather was cold and “frosty,” that there were “patches” of fog, that plaintiff’s vehicle had set outside shelter during the night and had frost on windows and windshield except where plaintiff had cleaned it off before leaving home for work.

Likewise, it is uncontroverted that the left front portion of plaintiff’s vehicle was in collision with a wheel or wheels at the left rear of the trailer portion of defendants’ tractor-trailer vehicle.

The disputed and determinative issues of fact are:

1. Whether defendants’ vehicle was wholly or partly across the center line in the path of plaintiff.

2. Whether plaintiff was contributorily negligent in driving with a partially obscured windshield, in crossing the center line to the left side of the road, in failing to see an obstruction on his own side, and/or in failing to avoid the obstruction without striking it.

The plaintiff testified that he was a road truck driver for State Stove Co. of Ash-land City; that he lived in the community of Sadlersville, about a mile from the scene of his injury; that he planned to arrive at work about 6:00 a.m.; that he arose about 4:00 a.m., washed, dressed, ate breakfast and then went out and removed frost from the left half of his windshield; that, by running the engine in his automobile “the defroster had done got warm”; that he got in his car and left for work; that, on the way to work, he had just started down a hill when he saw two sets of headlights in the fog ahead and then, “all of a sudden it got dark and I had nowhere to go”; that the defendants’ tractor-trailer was apparently trying to pass the truck ahead of him, then swerved his trailer to the right, but “the back of the trailer stayed out and I caught it with the car,” “I caught the back tandem of the trailer.”

The substance of this testimony is that, immediately prior to the collision, defendant’s truck was facing plaintiff on plaintiff’s side of the road; that defendant’s headlights blinded plaintiff; that defendant’s tractor moved to its own side of the road before meeting plaintiff; that, when plaintiff passed the lights of defendant’s tractor, he was left in comparative darkness in which he collided with the rear wheels of defendant’s trailer which remained on his (plaintiff’s) side of the road.

Taking this evidence as true and indulging the inferences most favorable to plaintiff, there is sufficient evidence to show negligence of the defendants and to exonerate the plaintiff of contributory negligence.

Defendants attack the sufficiency of plaintiff’s evidence on a number of grounds.

Defendants point out that plaintiff testified that the impact occurred only one foot inside plaintiff’s lane. This is, indeed, a circumstance reflecting upon the gravity, if any, of defendants’ negligence, the opportunity of plaintiff to avoid the collision and the contributory negligence of plaintiff. However, this evidence is circumstantial only, and not conclusive. It was for the jury to determine liability after consideration of this and all other facts and circumstances.

Defendants next rely upon the insistence that plaintiff testified that he collided with the second of two vehicles belonging to the defendant Sadler. Plaintiff did testify that he collided with the second of two trucks, but he did not testify that the first truck was a Sadler truck. It is true that the defendant, Wilson, testified that there was no truck ahead of him; but this contradiction in testimony involves an issue of credibility which is peculiarly within the province of the jury.

Defendants next insist that plaintiff was negligent in cleaning only one half or less of his own windshield and that he negligently drove directly into the left side of defendants’ trailer. This Court cannot say that the evidence, viewed in the light most favorable to plaintiff, shows him to be guilty of proximate contributory negligence as a matter of law, hence this Court cannot set aside a jury verdict on this ground.

Defendants have submitted a comprehensive and detailed chart of the testimony. While said chart may show that the evidence preponderates against the finding of the jury (which is not grounds for reversal), said chart does not show that there is no substantial, credible, evidence to support the verdict.

In their propositions of fact, defendants point out that Leslie Watkins, driver of another Sadler-owned truck, testified that he was following the truck involved in the collision with plaintiff and that the impact took place in defendants’ proper lane of travel. This testimony does contradict plaintiff’s testimony, but it makes an issue of fact for the jury. For the same reason, the testimony of defendant, J. B. Wilson, that the impact occurred on his own, proper side of the road cannot be determinative.

Even though “all of the witnesses who testified to any personal knowledge” of location of debris placed most of it on defendants’ side of the road, this would not completely and effectively erase the testimony of plaintiff, supra. There remains the issue of credibility and the known fact the debris does not conclusively establish the exact point of collision.

Defendants rely upon the uncontro-verted fact that plaintiff’s vehicle stopped on plaintiff’s left (defendants’ right) side of the road after the collision. This circumstance likewise is persuasive but not conclusive, for the course of travel of vehicles after collision is unpredictable and not conclusive as to manner or place of collision.

Defendants rely upon testimony that only part of plaintiff’s windshield was clear of frost, that, by plaintiff’s own admission, his vision was obscured by condensed fog on the windshield at the time of impact; and that plaintiff was driving 50 miles per hour. Of course, driving a vehicle with no vision whatsoever would be negligence as a matter of law; but obscured vision is less than perfect vision, which is a matter of degree, and projects issues of fact for the jury as to how badly the vision was obscured, whether a reasonably prudent person whould have attempted to drive under such a handicap, and whether the obscurity of vision was one of the proximate causes of the collision.

Defendants rely upon plaintiff’s statement at the scene that, “ . . . the glare of the truck hit my windshield. The glare on the windshield blinded me . ” Apparently defendants insist that being blinded by glare of headlights on a windshield partially obscured by frost constitutes negligence as a matter of law. This Court cannot agree with such insistence. It is well known that the formation of ice, frost or fog upon a windshield in certain weather conditions is not noticeable until emphasized by a beam of light. Whether such a situation confronted plaintiff in this case was for the jury.

It is well known that when two vehicles meet on a curve, the vehicle on the “outside” of the curve (turning left) tends to direct the beams of its lights to the right side of the road and not toward the vehicle being met on the left side of the road. For this reason, if defendant were indeed on the right side of the road, the beams of his headlights would not have been directed toward plaintiff, but off the road to the right. Only if defendant were on his left side of the road, directly in the path of plaintiff, would his (defendant’s) lights be expected to shine directly at plaintiff.

Defendants rely upon the rule that, where physical facts belie the truth of oral testimony, the oral testimony becomes no evidence whatever, citing Camurati v. Sutton, 48 Tenn.App. 54, 342 S.W.2d 732 (1961). In that case, the testimony of the witness, David H. Sutton, was contradicted by the physical facts testified to by him; and said facts, testified to by said witness were such as to render impossible the other facts related by him. Thus, in Camurati v. Sutton, the testimony of a single witness was internally inconsistent and impossibly contradictory: Such is not true in the present case. Moreover, as previously pointed out, the physical facts testified to by some of the witnesses are circumstantially, but not conclusively inconsistent with plaintiff’s testimony.

In Carpenter v. King, Tenn.App., 488 S.W.2d 383 (1972), authorities are cited and this theory of law is discussed. A study of said authorities will disclose that physical facts must be entirely undisputed and must by their nature, be such as to conclusively show inconsistent testimony to be untrue, before such testimony can be discarded in favor of a directed verdict.

In McRay v. Hughes, 53 Tenn.App. 533, 385 S.W.2d 124 (1964) this Court pointed out that a verdict would not be directed where differing inferences might be drawn from the physical facts, some consistent, and some inconsistent, with the testimony.

In Carpenter v. King, supra, this Court held:

“Under this record, and the undisputed physical facts, reasonable minds could reach only one conclusion. ...”

In the present case, reasonable minds could reach different conclusions, hence the issue was for the jury.

Defendants argue various bases for the jury’s evaluation of weight and credibility of testimony, however these matters are concluded by the verdict of the jury and not subject to review by this Court.

Defendants argue that they are not insurers of the safety of plaintiff who must show that his injuries are the proximate result of defendants’ breach of a duty owed to plaintiff. As previously pointed out, there is evidence to support a finding that defendants’ truck was on plaintiff’s side of the road in a curve and that the defendants’ lights blinded plaintiff. This being true (and the jury evidently so found), the grounds of defendants’ liability are established.

Defendants rely upon contributory negligence of plaintiff. Driving with any obstruction to vision in any degree may be held to be negligence. However, as previously stated, it was for the jury to determine whether the degree of obstruction was negligence under the circumstances and, if so, whether it constituted one of the proximate causes of the injury. Whether the plaintiff’s driving with impaired vision, or his speed, or his failure to avoid colliding with defendants’ truck were negligent and a substantial cause of his injuries were questions for the jury under the evidence.

Defendants cite authority for the proposition that a verdict must be supported by substantial evidence and urge that the uncorroborated testimony of plaintiff, standing alone, is not substantial evidence in his favor. Where one witness testifies with positiveness to a fact found, there is material evidence upon which to rest the verdict of the jury. Standard Loan & Accident Ins. Co. v. Thornton, 97 Tenn. 1, 40 S.W. 136 (1896).

For the reasons stated, the first assignment of error is respectfully overruled.

The second assignment of error is as follows:

“The trial court erred in failing to grant defendants’ Request for Special Instructions No. 2, as follows:
I further charge you that in Tennessee, a motorist is not an insurer of every injury that might occur as the result of the operation of his motor vehicle. To recover damages, an injured party must prove the usual essential facts to establish common law negligence: that the defendant owed a duty, that he negligently breached his duty, and that the injuries were a proximate result of the defendant’s negligent breach of duty.”

A review of the charge given by the Trial Judge discloses that the substance of the requested charge was included in the general charge. For example, the following sentences occur at various points in the charge:

. . Now, by no stretch of the imagination could you return a verdict against this corporation unless you first find that Mr. Wilson was guilty of negligence which caused the accident and if you should find that to be the case then your verdict should be against both defendants. .
Now, if you find at the time and place of the accident that the defendant violated that code section in the operation of his truck and that violation, if it was, was the direct and proximate cause of the accident then of course the defendant would be guilty of negligence. Now that is the theory briefly of the plaintiff in this case.
“. . . You have two defendants in this case. The legal effect of their answer and their theory in the lawsuit is to deny each and every material allegation set forth in the plaintiff’s complaint and cast the burden of proof with reference thereto upon the plaintiff who must prove his case by a preponderance of the evidence before any recovery can be had in favor of the plaintiff, .
“Now, I charge you that the proximate cause of an accident and the resulting injuries is that which is a procuring, efficient and a predominant cause, that act or omission or failure to act which caused or failed to prevent such injuries, an act or omission, occurring or concurring with another, which had it not happened the accident would not have happened and the injuries would not have been inflicted.
“The term negligence means the failure to exercise ordinary care. That is such care as an ordinarily prudent person would exercise under the same or similar circumstances, sometimes referred to as due care.
“. . . If the defendant driver was guilty of such an act or omission and could with the exercise of ordinary care have anticipated or foreseen that an accident of such a nature as the one which occurred would probably result from such act or omission then the defendant would be guilty of negligence and if such negligence, if any, on the part of the defendants was the proximate cause of the accident and the plaintiff’s injuries and damages the defendants are liable.
“It’s also the duty of the defendant driver to exercise ordinary care at all times in the operation of his truck and if the defendant failed to do so then he would be guilty of negligence and if such negligence on his part was the proximate cause of the accident and the resulting injuries then these defendants are liable.”

Where the substance of a special request is included in the general charge, it is not error to refuse the special request. Cohen v. Cook, 62 Tenn.App. 292, 462 S.W.2d 502 (1969).

The second assignment of error is respectfully overruled.

The third assignment of error is as follows:

“The court erred in failing to grant defendants’ Request for Special Instructions No. 6, as follows:
I further charge you that where the physical facts are such that belie the truth of oral testimony, there can be no weight given to the oral testimony, for it becomes no evidence whatever.”

The application of the rule of law embodied in this request to the facts of this case has been previously discussed. The physical facts relied upon by defendants, if true, were not necessarily inconsistent with the testimony of plaintiff.

The third assignment of error is respectfully overruled.

The fourth assignment of error is as follows:

“The court erred in failing to grant defendants’ Request for Special Instructions No. 7, as follows:
I further charge you that assumption of the risk is a legal doctrine of this state which provides the defendants with a complete defense to the plaintiff’s allegation of negligence. Where a plaintiff voluntarily places himself in a situation wherein he is aware of possible dangerous consequences, and the nature of those consequences, he is said to have assumed the risk of any injury he receives as a result. This legal doctrine will defeat a plaintiff even though he makes out a case of negligence against the defendant.”

After defining negligence as previously quoted, the general charge continues:

“The defendants say affirmatively that this plaintiff drove his automobile at an excessive and dangerous speed under the conditions then and there existing. That he was driving his automobile with the windshield covered over with a sheet of ice thereby obstructing his vision. That he was guilty of violating the provisions of 816, which I will find and read to you, and that he was guilty of proximate contributory negligence in that he failed to yield to the defendant one-half of the roadway, and that the plaintiff crossed over the centerline thereof and struck the left front corner of the defendant’s trailer. Now, that is the theory of the defense.
“If the plaintiff Mr. Davis was guilty of such an act or omission and could by the exercise of ordinary care have anticipated or foreseen that an accident of such a nature as the one that occurred would probably result from his act or his omission then the Plaintiff Mr. Davis would be guilty of negligence and if such negligence, if any, on the part of the plaintiff was the proximate cause of the accident and the plaintiff’s injuries then the plaintiff cannot recover.
“Now, if you find that both the plaintiff and the defendants were guilty of negligence which proximately concurred in producing the accident and the plaintiff’s injuries the plaintiff cannot recover.
“Now, it was the duty of the plaintiff to exercise ordinary care for his own safety and if he failed to do so then he would be guilty of negligence and if such negligence was the proximate cause of the accident and his injuries or jproxi-mately concurred with the negligence of the defendant in producing the accident then the plaintiff cannot recover.”

In Gargaro v. Kroger Grocery & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561 (1938), this Court said:

“[8,9] The doctrine of assumed risk, sometimes (as in Hatch v. Brinkley, 169 Tenn. 17, 80 S.W.2d 838), referred to as incurred risk, is usually applied to contract cases growing out of the relation of master and servant, but such is not always the case. The application of the doctrine is often simply another way of applying the rule of contributory negligence, and frequently the difference between the two is merely a difference in the choice of language or style of expression. In other words, the fact that one knows of potential danger and voluntarily subjects himself thereto may and often does render him contributorily negligent if accident or injury ensues.” 22 Tenn.App. p. 75, 118 S.W.2d p. 564.

In view of the above quoted charge on the general aspects of contributory negligence, it is not deemed reversible error to refuse to charge the specifics of negligent exposure to risk.

The fourth assignment of error is respectfully overruled.

The fifth assignment of error is as follows:

“The court erred in failing to grant defendants’ Request for Special Instructions No. 8, as follows:
I further charge you that among the things you should consider in evaluating the weight of oral testimony are these: whether the witness is interested in the out come of the lawsuit, his means of knowledge or knowing about the things of which he testifies, whether his testimony is reasonable or unreasonable, probable or improbable, whether his testimony is corroborated by that of other witnesses, and whether his testimony is supported by the physical evidence and those facts which are proven beyond doubt. All of these things and more determine the credibility of a witness.”

In this connection, the Trial Judge charged as follows:

“By a preponderance of the evidence is simply meant the greater weight of the testimony which is not necessarily determined by the greater number of witnesses, but by their character, and their intelligence and their means of knowledge touching the subject matter of their testimony, their interest or lack of interest, if any, in the results of the lawsuit, their willingness or unwillingness to answer questions propounded by the one side or the other, their prejudice or bias, if any, is apparent to you, and the consistency or inconsistency of their statements made either in or out of court, their demeanor as witnesses and the reasonableness of their testimony.”

While not identical with the requested charge, the general instruction contained the general substance of the special request. Moreover, the concluding' sentence of the request, by including the words “all these things and more,” was itself obscure and of doubtful validity.

The fifth assignment of error is respectfully overruled.

The sixth assignment of error is as follows:

“The court erred in failing to grant defendants’ Request for Special Instructions No. 11, as follows:
I further charge you that if you find that the failure of the plaintiff to properly clean and maintain the windows of his automobile was a substantial factor in causing this collision, then you are obliged to return a verdict in favor of the defendants.”

The previously quoted portions of the charge substantially instructed the jury on this subject, hence the failure to charge as requested was not reversible error.

The sixth assignment of error is respectfully overruled.

The seventh assignment of error is as follows:

“The trial court erred in charging the jury as follows:
Now ladies and gentlemen of the jury, the legal effect of the defendants . You have two defendants in this case. The legal effect of their answer and their theory in the lawsuit is to deny each and every material allegation set forth in the plaintiff’s complaint and cast the burden of proof with reference thereto upon the plaintiff who must prove his case by a preponderance of the evidence before any recovery can be had in favor of the plaintiff, although a bare preponderance of the evidence, however slight in the plaintiff’s favor will be sufficient to entitle the plaintiff to recover in this case. (Emphasis supplied.)”

Defendants’ argument concedes that this portion of the charge was technically correct, but insist that by emphasizing the words “barq preponderance, however slight” in conjunction with “other errors and omissions in the charge” was prejudicial. The general charge stated:

“If there is no preponderance of the evidence, if it is equally balanced, either in favor of the plaintiff or in favor of the defendant your verdict will be for the defendant.”

Having charged that equally balanced evidence must result in dismissal, it was desirable and proper to charge that a slight preponderance in favor of plaintiff would not be an “even balance,” and would result in a verdict for plaintiff. No such need existed in respect to a slight preponderance in favor of defendants since they would benefit from an even balance.

No injustice or prejudice is seen in the combination of the instruction under discussion with other portions of the charge.

The seventh assignment of error is respectfully overruled.

The eighth assignment of error is as follows:

“THE COURT: Now, the defendants filed an answer in this case and they admit that the accident happened and that it happened at the time which they said, but they deny specifically that Mr. Wilson was exercising due care for his own safety and they deny that he was driving on his right hand and proper side of the road and they deny that Mr. Wilson turned or cut to his left across the center line of the highway as the two vehicles approached each other. (Emphasis supplied.)”

In this portion of the charge, the Trial Judge erroneously referred to the plaintiff as “Mr. Wilson.” This was an obvious inadvertence which was doubtless recognized by the jury, and it is not probable that the jury was misled thereby. The inadvertence should have been even more readily recognized by counsel and called to the attention of the Trial Judge for correction at the time. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897 (1948); McMahan v. Tucker, 31 Tenn.App. 429, 216 S.W.2d 356 (1949); Town of Lebanon v. Jackson, 14 Tenn.App. 15 (1931).

The eighth assignment of error is respectfully overruled.

The ninth assignment of error is as follows:

“The trial court abused its discretion and erred in failing to allow the foreman and the jury to fully and correctly report its verdict, and in accepting an incomplete verdict as shown in the report of the foreman, and in the method of the court in accepting and recording the verdict.”

When the jury reported its verdict, the following occurred:

“THE COURT: Mr. Foreman, what is the verdict of the jury?
FOREMAN: Your Honor, we, the jury, find for the plaintiff, Mr. Davis, and against the defendants. We fix Mr. Davis’ damages at a total of fifty thousand dollars, $31,000.00 being for hospital expenses .
“THE COURT: Well, you don’t have to itemize it. Is your total verdict fifty?
FOREMAN: Fifty thousand. Yes, sir.
THE COURT: Did you allow a separate amount for the automobile?
FOREMAN: Yes, sir, that includes everything.
THE .COURT: That’s everything ?
FOREMAN: Yes, sir.
THE COURT: All right. Is that the unanimous verdict of you ladies and gentlemen ?
(JURY NODS AFFIRMATIVELY)”

Defendants insist that it was improper for the Trial Judge to interrupt the report of the foreman, especially since the report appeared to contain a mathematical error in that $31,000.00 appeared to be the amount allowed for hospital expenses which were shown to be a much smaller amount. From the above, it is evident that the foreman reported $31,000.00 as the total of a number of items of which the first was hospital expenses. The other items were never named because of the interruption. If defendants had desired the details of the foreman’s report in this regard, they should have moved the Trial Judge to allow the foreman to continue. Said report was not a necessary part of the verdict, but would have been enlightening to the Trial Judge, the parties, and this Court.

There was evidence of doctors and hospital bills of $7,813.30, of an additional hospital bill of over $300.00. Plaintiff testified that he earned $9,408.01 in his last full year of employment, that, to the date of trial, he had lost two years and three months earning computed to be $21,168.00 and that his car, worth $1,000.00, was a total loss. The total of the foregoing specific items is $30,281.30. Plaintiff was unable to work at the time of trial and his doctor testified that he had suffered a 50 percent impairment of his left knee which would prevent the resumption of his former work for an indefinite period, possibly permanently. It would appear, therefore, that the jury computed plaintiff’s “special damages” at $31,000.00 and that the remainder of the $50,000.00 verdict represented. compensation for pain and suffering and future disability of a 35-year old man.

The evidence of damages, cited supra, negatives any suggestion that the jury erroneously concluded that hospital expenses were $31,000.00. It does not appear that the partial" report of the foreman reflects any prejudicial error on the part of the jury.

Since there was no request for special verdict or finding of facts by the jury, or for completion of the foreman’s report, and the interrupted report of details of damages was not a necessary part of the verdict, the partial announcement by the foreman or the failure of the Court to hear the remainder of his report was not reversible error.

The ninth assignment of error is respectfully overruled.

The tenth assignment of error is as follows:

“The court abused its discretion and erred in failing to properly poll the jury as requested by defendants, and in such a manner as to ascertain if the verdict announced by the foreman was the verdict of each and every juror as shown in the method the trial judge polled the jury.”

Immediately after the report of the jury, quoted supra, the following is recorded in the bill of exceptions:

“MR. PARKER: We would like to ask for a poll, Your Honor.
THE COURT: Call Miss Ann in here and let her poll the jury.
(THEREUPON THE JURY WAS ASKED INDIVIDUALLY IF THEY AGREED WITH THE VERDICT AND ALL MEMBERS ANSWERED AFFIRMATIVELY)”
“MR. PARKER: Your Honor, we would like for the jury to be polled on remote or proximate negligence.
THE COURT: Well, they have returned a general verdict and they have been polled on that and I think that is sufficient.
MR. PARKER: Note an exception.
THE COURT: All right.”

Defendants argue:

“Defendants contend that the proper question to be put to each juror is whether the verdict announced by the foreman was his or her own verdict. To fail to ask the question in this manner is to leave open the possibility of one or more jurors who, as a minority, agreed that that majority decision would prevail. In this situation, it is possible that one or more jurors whose individual vote was always for a defendants’ verdict, or for a smaller plaintiff’s verdict, may have “agreed” with the announced verdict without ever acknowledging that it was his or her own individual verdict. For the trial court to fail to perform this simple task correctly is inexcusable, for it leaves the defendants to wonder forever whether the plaintiff actually received a unanimous verdict.”

The complaint as to the manner of polling the jury comes too late. If, as defendants insist, the form of the poll left some doubt as to the unanimity of the jury, counsel should have moved for a poll in a particular form. As stated in Smith v. Weitzel, 47 Tenn.App. 375, 338 S.W.2d 628 (1960),

“As was said in Dixon Stave & Heading Co. v. Archer, 40 Tenn.App. 327, 291 S.W.2d 603, in the absence of a statute prescribing the method of conducting a poll of the jury, the method is entirely within the discretion of the trial judge, whose judgment will not be disturbed unless it clearly appears that there was abuse of discretion. It is further pointed out in said opinion that no particular form of answer is essential on the polling of a jury it being sufficient if the answer of the juror indicates with reasonable certainty that the verdict is his own.
“In the instant case, we think the trial judge, in his discretion, did ascertain with accuracy the verdict of each member of the jury and we, therefore, overrule the assignment directed at this alleged error.” 47 Tenn.App. p. 397, 291 S.W.2d p. 638.

In the cited case, the Trial Judge questioned each juror in substance as follows:

“Your foreman has reported a verdict in favor of the will. Is that or not your verdict ?”

The exact verbiage of the interrogation is not preserved in the present record. It would certainly be unusual for this Court to reverse for inadequate verbiage when the exact verbiage is not preserved in the record.

In Lovell v. McCullough, 222 Tenn. 567, 439 S.W.2d 105 (1969), the Supreme Court said:

“[3] In this state polling of juries upon request is mandatory under T.C.A. §§ 20-1324, 20-1325. These statutes require no particular method in the conduct of the poll and under Dixon Stave & Heading Co., Inc. v. Archer, 40 Tenn.App. 327, 291 S.W.2d 603 (1956), such was in the sound discretion of the trial judge. In the Archer case the court quoted with approval from 53 Am. Jur., Trial, Sec. 1015:
‘Examining the jury by the poll is the most generally recognized means of ascertaining whether they are unanimous in their decision. In no other way can the rights of the parties to the concurrence of the jurors be so effectually secured as to have each juror answer the question, “Is this your verdict?” in the presence of a court and counsel. By this means it can be ascertained for a certainty that no one has been coerced or induced to agree to a verdict to which he does not fully assent. The poll of each member of the jury on the question whether the verdict rendered is the verdict of each juror represents the extent to which the court may go in inquiring of the jurors as to the method of reaching their verdict.’ 40 Tenn.App. at 336, 291 S.W.2d at 608. (Emphasis supplied).” 222 Tenn., pp. 575, 576, 439 S.W.2d 108.

It does not appear that the manner of polling the jury was reversible error.

Defendants do not assign as error the refusal of their request for a poll of the jury on remote or proximate negligence. The right to such a response from the jury, formerly prescribed by statute, is now governed by Rule 49 of Tennessee Rules of Procedure. Said rule appears to repose discretion in the Trial Judge as to special findings or verdicts, presumably upon timely application of a party prior to the deliberation of the jury.

The tenth assignment of error is respectfully overruled.

The complaints in regard to the charge and omissions therefrom are not entirely unfounded. Seldom is a charge delivered to a jury which could not be improved. It is better practice for the Trial Judge to reduce his charge to writing before delivery and to carefully compare its verbiage with that of the special requests submitted by counsel so that all proper words, phrases and rules may be included. Nevertheless, perfection is not the criterion for affirmance or reversal; and a charge which states the law with substantial accuracy and fairly submits the issues to the jury should not be grounds for reversal.

As previously intimated, this Court does not necessarily agree with the verdict of the jury. The record contains substantial evidence upon which proximate contributory negligence might have been found. However, this Court cannot say as a matter of law that the undisputed evidence shows the plaintiff to be guilty of proximate contributory negligence as a matter of law. Such a finding by this Court would require reversal and dismissal, which is not justified by the record on appeal.

This record, does not justify a finding of remote contributory negligence as a matter of law; however, there was substantial evidence upon which the jury-might have found remote contributory negligence. Indeed, the verdict of the jury is consistent with such a finding in that the amount of the verdict is considerably less than the amount which might otherwise have been awarded for the injuries sustained. As previously stated, the actual lost earnings, medical expense and property damage exceed $30,000.00. In addition to the allowable compensation for an extended period of pain and suffering, there was the substantial consideration of the permanent disability of a 35-year old truck driver with an earning record of over $9,000.00 per year. According to the medical evidence, the disability of plaintiff’s knee would prevent him from driving trucks for an indefinite period, possibly permanently. Slightly more than two years additional loss of earnings would account for the remainder of the $50,000.00 verdict, leaving no compensation for accumulated pain and suffering and continued pain and suffering and partial disability beyond the assumed two years of continued total disability.

Under the foregoing reasoning, an award of more than $50,000.00 might have been justified. Therefore, it may be considered that the jury may well have found remote contributory negligence and reduced the verdict to $50,000.00 from a larger amount which they would have otherwise awarded.

From a consideration of the entire record, this Court is unable to find any valid grounds for disturbing the verdict.

The judgment of the Trial Court is affirmed. Costs of this appeal will be taxed against the defendants and their surety.

Affirmed.

SHRIVER, P. J., and DROWOTA, J., concur.


author: SAM D. JOHNSON, Justice. REAVLEY, Justice

text:
    E. C. HEDDIN et ux., Petitioners, v. DELHI GAS PIPELINE COMPANY, Respondent.
    No. B-4760.
    Supreme Court of Texas.
    May 14, 1975.

      Elliott & Bass, Clyde Elliott, Jr., Canton, Wynne & Wynne, Gordon R. Wynne, Wills Point, for petitioners.
    Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., Dallas, for respondent.
   SAM D. JOHNSON, Justice.

Delhi Gas Pipeline Company brought this suit against E. C. Heddin and wife, Lillie Belle Heddin, to condemn a portion of their land for the purpose of laying a gas transmission pipeline. At trial the Heddins (landowners) recovered substantial damages for injury to their property by reason of the condemnation. Delhi Gas appealed; the court of civil appeals reversed and remanded the case for a new trial. 509 S.W.2d 954. We affirm the judgment of the court of civil appeals.

The landowners’ property is an almost square-shaped, eighty-acre tract of land in Van Zandt County, Texas. The easement runs generally north to south through the western edge of the property; it is fifty feet wide, 1,644 feet long and totals approximately 1.5 acres. The gas pipeline is 12¾ inches in outside diameter and is buried thirty-six inches under the ground. This pipeline carries a gas which contains approximately 3.2 percent hydrogen sulfide, a lethal poison, at 1,180 pounds of pressure per square inch. As stated by the court of civil appeals, “[i]t is the dangerous nature of the contents of this line and the fear created by its presence on the land which generate the entire controversy of this appeal.” 509 S.W.2d 954 at 955.

The landowners sought to prove that the market value of their property was decreased substantially by reason of fear in the minds of the buying public of the possible escape of this type of gas from gas transmission pipelines. Though the date of taking was December 8, 1970, the trial court, over objection, permitted the introduction of evidence of damages caused by a rupture in another gas transmission pipeline on July 5, 1971, almost eight months after the date of taking. This rupture occurred approximately two miles away in a gas transmission pipeline owned by Pan American.

In answer to special issues the jury found: (1) before the taking the per-acre value of the 1.5 acres actually taken for the easement was $400; (2) after the taking the per-acre value of the 1.5 acres actually taken for the easement was $50; (3) before the taking the per-acre value of the 78.5-acre remainder was $400; and (4) after the taking the per-acre value of the 78.5-acre remainder was $275. Upon this verdict the trial court rendered judgment for the landowners in the amount of $10,287.50, less deposits.

On appeal Delhi alleged that the large diminution found by the jury in the market value of the landowners’ remainder stemmed from error on the part of the trial court in admitting evidence of the Pan American rupture. The court of civil appeals agreed with Delhi’s contention that evidence of the Pan American rupture was irrelevant to the question of the market value of the landowners’ property on the date of taking. The basis for that court’s decision was that “an event which occurred approximately eight months later could not affect the market value of the Heddin property determined as of the 8th day of December, 1970.” 509 S.W.2d 954 at 957. The court of civil appeals held that admission of evidence of the Pan American rupture was reversible error and remanded the cause for a new trial.

For reasons which will hereinafter appear we affirm that court’s judgment of reversal and remand to the trial court. Since this'case must be retried, it is incumbent upon this court, as a guideline for trying this and other similar cases, to set out a definitive statement of its position regarding the relevance of evidence of ruptures occurring subsequent to the date of taking.

It is clear that compensation for land taken by eminent domain is measured by the market value of the land at the time of the taking. Tex.Const. art. 1, § 17, Vernon’s Ann.St.; Vernon’s Tex.Rev.Civ.Stat.Ann. art. 3268; City of Fort Worth v. Corbin, 504 S.W.2d 828 (Tex.1974); Fuller v. State, 461 S.W.2d 595 (Tex.1970). It is equally clear that fear in the minds of the buying public on the date of taking is relevant to the proof of damages when the following elements appear:

1.That there is a basis in reason or experience for the fear;
2. That such fear enters into the calculations of persons who deal in the buying and selling of similar property ; and
3. Depreciation of market value because of the existence of such fear.

Buzzard v. Mapco, Inc., 499 S.W.2d 352 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.); Delhi Gas Pipeline Company v. Reid, 488 S.W.2d 612 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.); Gulledge v. Texas Gas Transmission Corp., 256 S.W.2d 349 (Ky.1952). See Delhi Gas Pipeline Company v. Mangum, 507 S.W.2d 631 (Tex.Civ.App.—Tyler 1974, no writ); 4A Nichols, Eminent Domain § 14.241(1) (1971); Annot., 38 A.L.R.2d 788, 801.

To establish that there is a basis in reason or experience for the fear, it is incumbent upon the landowners to show either an actual danger forming the basis of such fear or that the fear is reasonable, whether or not based upon actual experience. Reduction in market value due to fear of an unfounded danger is not recoverable. Northeastern Gas Transmission Co. v. Lapham, 19 Conn.Sup. 468, 117 A.2d 441 (1955); East St. Louis Light & Power Co. v. Cohen, 333 Ill. 218, 164 N.E. 182 (1928); Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 291 P. 768 (1930); Kentucky Hydro Electric Co. v. Woodard, 216 Ky. 618, 287 S.W. 985 (1926); Onorato Brothers v. Massachusetts Turnpike Auth., 336 Mass. 54, 142 N.E.2d 389 (1957); Johnson v. Airport Authority of City of Omaha, 173 Neb. 801, 115 N.W.2d 426 (1962). See United States v. Borth, 266 F.2d 521 (6th Cir. 1959); 4A Nichols, supra, §§ 14.241 et seq. This rule is designed to exclude consideration only of those few situations in which the danger underlying the fear finds its basis in neither reason nor experience but is predicated rather on fancy, delusion or imagination.

Proof of specific instances in which similar pipelines have developed ruptures under similar circumstances is directly relevant to the question of whether there is an actual danger underlying assertions that fear adversely affected market value. Evidence of specific similar ruptures occurring prior to the date of taking would of course be admissible to substantiate allegations that fear of an actual danger from the pipeline reduced market value. The question remains, however, whether evidence of a rupture subsequent to the date of taking is wholly precluded —and precluded solely because it occurred after the date of taking.

The general rule that compensation for land taken by eminent domain is measured by its market value at the time of taking would appear to require exclusion of evidence of all ruptures occurring after the date of taking. A rupture occurring subsequent to the date of taking could not have had an effect on market value as of the date of taking. However, we believe evidence of a subsequent rupture is admissible under certain limited circumstances and for a properly limited purpose. That is, when the condemnor asserts the pipeline is free from danger, or when the condemn- or otherwise takes the position that fear of a danger from the pipeline is not a factor affecting market value, the landowner may, in rebuttal, introduce evidence of specific ruptures in the same or a closely similar pipeline.

In the instant case evidence of the subsequent Pan American rupture was offered by the landowners and admitted by the trial court generally as a factor affecting market value before condemnor’s appraisal witnesses testified on the subject. More specifically, the landowners’ evidence of the subsequent rupture of the similar pipeline was not in rebuttal to the posture of the condemnor that the proposed pipeline was not dangerous. At the time the landowners offered evidence of the subsequent rupture, Delhi objected on the grounds that it occurred after the date of taking and could have no relevance to the market value of the landowners’ property as of that date. Under these circumstances the court of civil appeals properly held the evidence was inadmissible.

Moreover, the damaging nature of the testimony concerning the Pan American rupture is clearly evident from the record. Three witnesses were called by the landowners to establish the circumstances surrounding the Pan American rupture. These witnesses were allowed to give detailed accounts of the damage from the rupture and of the fact that it had killed three pets and ten head of cattle belonging to the landowner on whose property the pipeline was buried. Due to the impressive nature of the improperly admitted testimony concerning the Pan American rupture, the court of civil appeals properly reversed the judgment of the trial court and remanded the case for new trial under Rule 434, Texas Rules of Civil Procedure.

Even if the evidence of the Pan American rupture had been offered for the limited purpose of rebuttal, which it was not, we would still be compelled under this record to affirm the court of civil appeals. This conclusion is inescapable when the method used to illustrate the damage caused by the Pan American rupture is examined. Over strenuous objections, a number of photographs of the carcasses of the cattle and the pets belonging to the landowner in the Pan American case were introduced. Although photographic reproductions can be beneficial to all parties in the trial of a lawsuit, those that are merely calculated to arouse the sympathy, prejudice or passion of the jury and do not serve to illustrate disputed issues or aid the jury in its understanding of the case should not be admitted. Southern Transp. Co. v. Adams, 141 S.W.2d 739 (Tex.Civ.App.—Beaumont 1940, writ dism’d jdgmt cor.); Ryan v. United Parcel Service, 205 F.2d 362 (2d Cir. 1953); Haddad v. Kuriger, 437 S.W.2d 524 (Ky.1968); Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793 (1958); 29 Am.Jur.2d Evidence § 787. See Annot., 73 A.L.R.2d 769, 841. The photographs of the dead animals introduced on behalf of the landowners here had no relevance to the disputed issues; they were not calculated to aid the jury in its understanding of the case. Indeed, it must be concluded that they were shown not for the purpose of establishing the dangerousness of the pipeline but rather for their shock value — in the words of counsel for the landowners, “for further knowledge of what he [the landowner in the Pan American case] really saw out there.” These photographs must be construed as an attempt to appeal to the prejudice and passion of the jury. Admission of these highly inflammatory and irrelevant photographs was such error as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

The judgment of the court of civil appeals is affirmed.

Concurring opinion by REAVLEY, J., m which WALKER, J., joins.

REAVLEY, Justice

(concurring).

The Court of Civil Appeals has accurately disposed of the appeal. 509 S.W.2d 954. It may be that we will someday be faced with a case where we will not require the condemnor to pay for all of the actual consequences of the taking and the facility to be constructed — the reason for that limitation on condemnee’s recovery being that the fear of the facility is a product of wild fancy. See 1 Orgel, Valuation Under Eminent Domain § 61 [1953]. However, imaginary danger is certainly not in the present case. The parties might debate the extent of the danger, though they should not be allowed to do so. But no one can find any reason to argue that fear of a high pressure gas pipeline is based on sheer ignorance or is a reaction to an imaginary danger.

Condemnor’s expert witnesses testified that the market value of the remainder was not diminished by the taking. The majority opinion apparently regards the offer of this testimony by the condemnor as taking “the position that fear of a danger from the pipeline is not a factor affecting market value.” The door is then opened to try out questions of the similarity of pipelines and to make proof of subsequent disasters. I submit that the trial thus becomes needlessly more complicated and confusing. The purpose of the introduction of evidence of the subsequent event may be limited, by condemnor’s offer and by the court’s instruction to the jury, but the jurors may have great difficulty in confining their thoughts accordingly. Since that proof could be highly prejudicial to the condemnor, and since there is no issue that requires its consideration for any purpose necessary to the case of the condemnee, evidence of the subsequent disaster should be excluded.

WALKER, J., joins in this concurring opinion.

      . We expressly reserve any holding as to whether liability for damages incurred from a rupture in the pipeline located on the land involved in the condemnation should be adjudicated in the condemnation proceeding. See Glade v. Dietert, 166 Tex. 382, 295 S.W.2d 642 (1956).