author: CIRE, Justice.

text:
    Bill D. JACKSON, Appellant, v. M. E. LEONARD, Sr., Justice of the Peace, Precinct 3, Appellee.
    No. B1975.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 14, 1979.
    Rehearing Denied April 4, 1979.

      James R. Ansell, Harvey Bazaman, Galveston, for appellant.
    M. Bruce Fort, Simpson & Burwell, Texas City, for appellee.
   CIRE, Justice.

This is an appeal from the issuance of a preemptory writ of mandamus. Appellant Bill D. Jackson, in his capacity as county auditor of Galveston County, was directed by the writ to comply with the instructions of the Galveston County Salary Grievance Committee by increasing the salary of M. E. Leonard, Jr., Justice of the Peace of Precinct 3 of Galveston County, by an amount equal to $150.00 a month for the remaining budget year of 1976. Appellant refused to do so on the ground that the increase was not a “salary” increase but a subsidy for rental of office and courtroom facilities which the county is prohibited from providing by Tex.Rev.Civ.Stat.Ann. art. 3899b § la (Supp.1978). We affirm the action of the trial court.

The legislation controlling this issue is Tex.Rev.Civ.Stat.Ann. art. 3912k (Supp. 1978). Section 1 provides:

Salaries, Etc., to be Set by Commissioners Court
Except as otherwise provided by this Act and subject to the limitations of this Act, the commissioners court of each county shall fix the amount of compensation, office expense, travel expense, and all other allowances for county and precinct officials and employees who are paid wholly from county funds .

Section 2(b) sets up a grievance committee composed of nine voting members and a nonvoting chairman. Section 2(d) then provides as follows:

(d) Any elected county or precinct officer who is aggrieved by the setting of his salary, expenses, or other allowance by the commissioners court may request a hearing before the committee. . If, after a hearing, the committee by a vote of six of its voting members decides to recommend a change in the salary, expenses, or other allowance of the person requesting the hearing, it shall prepare its recommendation in writing and deliver it to the commissioners court, which shall consider the recommendation at its next meeting. A written recommendation signed by all nine members and delivered to the commissioners court becomes effective without the action of the commissioners court on the first day of the month following its delivery to the commissioners court (emphasis added).

Appellant contends first that the evidence that the salary grievance committee voted to increase appellee’s “salary” by $150.00 was legally and factually insufficient to support such a finding by the trial judge. Appellant urges that appellee’s grievance was based on an inequity between the salaries of those justices of the peace whose office space is provided by the county and those who must supply their own. He contends that the additional $150.00 a month granted by the committee was not a “salary” increase but was in lieu of office space and therefore improper.

By raising this point appellant is attempting to go behind the action of the salary grievance committee and attack it as illegal. We hold that in the case of a unanimous recommendation by the grievance committee the language of article 3912k § 2(d) prohibits such action on the part of the auditor.

By its terms article 3912k removes the auditor from the process of effecting a salary adjustment made pursuant to a grievance. In the usual case the auditor approves the claims submitted to him and then sends the claims to the commissioners court for its approval. Once the court approves the claims, it becomes a ministerial act for the auditor to comply with them.

Article 3912k § 2(d) provides that unanimous action by the salary grievance committee “becomes effective without the action of the commissioners court” after delivery of the written recommendation. Accordingly, in such a case, the commissioners court must in effect approve the action without the approval by the auditor being necessary.

It follows therefore that the auditor is not empowered to go behind the action of the salary grievance committee and question the mental processes behind such action or the motives thereof.

There is an additional reason for our holding that the auditor is not a participant in this process. Tex.Rev.Civ.Stat.Ann. art. 1660 states in part:

All claims, bills and accounts against the county must be filed in ample time for the auditor to examine and approve same before the meetings of the commissioners court. No claim, bill or account shall be allowed or paid until it has been examined and approved by the county auditor. .

The companion cases of Nacogdoches County v. Jinkins, 140 S.W.2d 901 (Tex.Civ. App.—Beaumont 1940, writ ref’d) and Nacogdoches County v. Winder, 140 S.W.2d 972 (Tex.Civ.App.—Beaumont 1940, writ ref’d) considered this article in relation to suits by the district and county clerks to recover the balance of salaries due them. The court there stated that article 1660 must be considered in connection with article 1661, passed as part of the same act. Tex.Rev. Civ.Stat.Ann. article 1661 § 1 (Supp.1978) provides:

Art. 1661. Requisites of approval
He shall not audit or approve any such claim unless it has been contracted as provided by law, nor any account for the purchase of supplies or materials for the use of said county or any of its officers, unless, in addition to other requirements of law, there is attached thereto a requisition signed by the officer ordering same and approved by the county judge. .

The court there held:

A literal application of Article 1660 without reference to Article 1661 would require the filing with the auditor of claims of every nature, but under Article 1661 it is readily seen that the auditor has no authority to audit or approve a claim of the nature here involved. It is evident that the claims which he is authorized to audit and approve under Article 1661 are claims based upon contracts lawfully made, and accounts for supplies and material supplied and contracted for as required by law, to which are attached the proper requisitions. There are no provisions in the law which indicate that the county auditor is vested with any authority to pass upon the merits of claims such as here. Appellee’s claim being one which under no circumstance could be approved by the county auditor, Article 1660 has no application to it.

140 S.W.2d at 904.

It is therefore unnecessary for us to consider appellant’s claim that the evidence did not support the finding that the grievance committee granted a salary increase. Points of error one, two, and three are overruled.

Appellant next alleges that the judge erred in finding that appellant refused to grant the salary increase because there was no evidence that appellant received the written recommendation of the committee prior to the institution of the suit.

Section 2(d) of article 3912k does not require formal notice to the auditor. Instead it states that action by the grievance committee becomes effective on the first day of the month following delivery of the written recommendation to the commissioners court. There was evidence that such a delivery was made. Appellant testified that appellee presented a demand for $150.00 a month over and above his previous salary every month from February of 1976 and that he refused to comply with the demand. Accordingly there was sufficient evidence for the trial judge to find that appellant refused to pay the increase in salary.

Appellant further argues that mandamus is not the proper remedy because his action in allowing or disallowing a claim against the county is a discretionary act, relying on the case of Smith v. McCoy, 533 S.W.2d 457 (Tex.Civ.App.—Dallas 1976, writ dism’d). In connection with this appellant contends that before mandamus will lie, appellee must establish the validity of his claim and his legal right thereto.

As stated previously, article 3912k § 2(d) eliminates the requirement of the auditor’s approval prior to a recommendation’s being sent to the commissioners court. In the case of a unanimous recommendation, the commissioners court must approve the grievance committee’s action. The duty of the auditor is then ministerial in complying with the recommendation. Accordingly the auditor’s action in allowing the claim is not discretionary, and mandamus is the proper remedy.

Further, in the Smith case the auditor was faced with a “difficult legal question” in determining whether sheriff’s deputies were entitled to pay during time suspended. He relied on an attorney general’s opinion in refusing to authorize payment. This is not the case here. Appellee is given a legal right to his claim, and its validity is established, by section 2(d) of article 3912k. There is therefore no question concerning the merit of appellee’s claim. The court in Smith stated that “when there is no legal justification for the auditor withholding approval of the claim or payment thereof, mandamus will lie. This is true because the refusal of the auditor . . would be an abuse of his discretion.” 533 S.W.2d at 460. Point of error seven is overruled.

Appellant raises some points of error concerning the constitutionality of article 3912k § 2d in relation to article 3 § 44 and article 16 § 61 of the Constitution of the State of Texas. These issues were not raised in the trial court, and in order to challenge the constitutionality of a statute on appeal, it is necessary that such issue have been raised in the court below. Fulcher v. Texas State Board of Public Accountancy, 571 S.W.2d 366 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); Trice Production Co. v. Dutton Drilling Co., 333 S.W.2d 607 (Tex.Civ.App.—Houston 1960, writ ref’d n. r. e.).

In his single cross-point, appellee argues that it was error for the trial judge to order appellant to comply with the instructions of the salary grievance committee only for the remaining eleven months of the budget year.

Section 2(a) of article 3912k provides as follows:

The salaries, expenses, and other allowances of elected county and precinct officers shall be set each year during the regular budget hearing and adoption proceedings on giving notice as provided by this Act (emphasis added).

Appellant argues that this section limits relief supplied under section 2(d) to the time remaining in the budget year, or until salaries are “set” for the succeeding year. We agree.

Section 2(d) provides a remedy for county officers who are aggrieved by the setting of their salaries. Each salary is set at the beginning of the budget year and will be set again the following year. The grievance committee’s action can have no effect on a salary as set by the commissioners court for any longer period than that for which the salary was originally set. Appel-lee was aggrieved by his salary for the budget year 1976. It was this salary alone which was before the committee, since ap-pellee’s salary for 1977 was not yet set, and he could not have been aggrieved thereby. The trial judge was therefore correct in holding that the salary increase of $150.00 a month extended only through the end of 1976.

Affirmed.

      . Article 1661 was amended in 1973, but the provisions pertinent here remain unchanged. Tex.Rev.Civ.Stat.Ann. art. 1661 (Supp.1978).


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    Sheena Thomasson FILES, Appellant, v. James Daniel THOMASSON, Appellee.
    No. B1999.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 14, 1979.
    Joe J. Newman, Houston, for appellant.
    No representation for appellee.
   J. CURTISS BROWN, Chief Justice.

This is a suit under the Texas Family Code to alter the divorced husband’s access to his minor children, whose managing con-servatorship is vested in the divorced wife. After a jury verdict and judgment below were rendered in favor of the father, the mother brought this appeal on the contention that there was no showing of a material change of circumstances as required by the Code.

James Thomasson (appellee) and Sheena Files (appellant) were divorced in 1976. Appellant was named managing conservator of the two minor children and appellee, as possessory conservator, was ordered to pay child support. In March 1977, appellant and appellee voluntarily caused the entry of an order depriving appellee of any access to the children and also relieving him of any obligation to pay child support. Later in the same year appellee brought this suit to reestablish his right of access to the children, alleging a material change of circumstances since March 1977, and that it would be in the children’s best interest to allow such access. The jury verdict and trial court judgment were in favor of appel-lee.

Section 14.08(a) of the Texas Family Code provides that:

A court order or the portion of a decree that provides for the support of a child or the appointment of a conservator or that sets the terms and conditions of conserva-torship for, support for, or access to a child may be modified only by the filing of a motion in the court having jurisdiction of the suit affecting the parent-child relationship. Any party affected by the order or the portion of the decree to be modified may file the motion. .

Section 14.08(c)(1) provides that:

After a hearing, the court may modify an order or portion of a decree that . provides for the support of a child, sets the terms and conditions for access to or possession of a child, or prescribes the relative rights, privileges, duties, and powers of conservators if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree .

Tex. Family Code Ann. § 14.08(a) and (c) (Supp.1978) (emphasis added). In making its determination, the court must adhere to section 14.07(a) which provides:

The best interest of. the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.

Tex. Family Code Ann. § 14.07(a) (1975) (emphasis added).

The statute thus places on the party seeking to alter the prior order the burden to show first, that there has been change of circumstances of either the child or any person affected by the order; and second, that a change or modification of the prior order would be in the best interest of the child.

Appellant, in her third point of error, contends there was no evidence to support the judgment. More specifically, the argument is that appellee failed to produce any evidence of a material and substantial change of circumstances since the entry of the March 1977 order. In reviewing this point, we will consider only the evidence favorable to the verdict and will disregard all evidence to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). When asked to list material changes that had occurred since the previous order, the appellee’s only response was that he had remarried, and that his new wife was pregnant, and that he had moved into and rented his parents’ house. These “changes” are neither material nor substantia] absent a showing of a relationship of such developments to the welfare of the children. The evidence that the children enjoy the visits and that the father subjectively wanted to see them, coupled with his desire that they become acquainted with the expected half-sibling, are not a material or substantial change of circumstances. Such evidence does bear on the question of the best interest of the children, which is the second evidentiary requirement. See Becerra v. Garibaldo, 526 S.W.2d 780 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.).

Therefore, we hold that appellee presented no evidence of a material and substantial change of circumstances. We reverse the judgment of the trial court and render judgment for the appellant.

Reversed and rendered.

      . “Access to” a child has been determined to have the same meaning as visitation and the terms will be used interchangeably in this opinion. Howard v. Pullicino, 519 S.W.2d 254 (Tex.Civ.App.—Austin 1975, no writ).

      . Although we question the wisdom of requiring a material and substantial change of circumstances before a court may alter the access to a child, we are bound by the provisions of the statute. Prior to the enactment of the statute, it was unnecessary to show any change of circumstances in order to change visitation. Rodgers v. Williamson, 489 S.W.2d 558 (Tex.Sup.1973).


author: REYNOLDS, Justice.

text:
    JAY FIKES AND ASSOCIATES, d/b/a Kings Park Apartments, Appellant, v. Sherry Smith WALTON, Appellee.
    No. 8971.
    Court of Civil Appeals of Texas, Amarillo.
    February 26, 1979.
    Rehearing Denied April 2, 1979.

      Griffith & Brister, Bill H. Brister, Lubbock, for appellant.
    Gerald L. Anderson Law Offices, Inc., Gerald L. Anderson, Lubbock, for appellee.
   REYNOLDS, Justice.

An action for conversion of a tenant’s property lead to a judgment for the value of the converted property, punitive damages and attorney’s fees. The awards for actual and exemplary damages are sustainable; but, absent establishment of a contractual or statutory right to recover attorney’s fees, the áward therefor must be eliminated. Modified and affirmed.

Sherry Smith Walton occupied a unit of the Kings Park Apartments in Lubbock under a written one-year lease agreement with Jay Fikes and Associates, d/b/a Kings Park Apartments. The lease agreement provided for a landlord’s lien on Walton’s non-exempt property which, after five days notice of any default under the lease, could be seized and retained until the default is cured. On the theory that Walton’s lease payments were in default, Fikes’s apartment manager, without any notice, entered Walton’s apartment and seized her stereo and vacuum cleaner. Walton vacated the apartment and brought this action.

Walton alleged that Fikes had unlawfully and maliciously converted her stereo and vacuum cleaner which had a total value of $1,000. She sought “exemplary treble damages in the sum of $3000,” and either (1) return of the converted property with interest on its value, or (2) recovery of the value of the property at the time of conversion. Her prayer for recovery based on her allegations was extended to include “attorneys fees.” By cross-action, Fikes alleged that Walton was liable for $1,650 due and owing under the lease.

Sitting without a jury, the trial court denied Fikes any recovery on the cross-action and rendered judgment for Walton in the sum of $1,299. The judgment amount is an aggregate of: $99 for the vacuum cleaner; $600 for the stereo; $300 as punitive damages; and $300 for attorney’s fees. Findings of fact and conclusions of law were made and filed.

Appealing from the judgment, Fikes does not complain of the court’s decision on the cross-action, nor question the imposition of liability for conversion, nor dispute the value found for the vacuum cleaner. Rather, Fikes challenges the amount of the award for the stereo, the sufficiency of the evidence to show a ground for exemplary damages, and the allowance of attorney’s fees.

Respecting the value of the stereo, the court heard testimony from Walton and Bob H. Smith, a Lubbock pawn broker. Walton testified that at the time the stereo was taken from her apartment its value to her was $600. Smith’s testimony was that he, as a pawn broker, would buy the stereo for $100 and that the retail value for it out of his store would be approximately $169 to $179. The court found as a fact that the reasonable market value of the stereo in Lubbock County on or about the time of the conversion was $600.

In challenging the award of $600, Fikes insists that the stereo is neither a personal effect nor a household good and, therefore, any award for damages should be based on its market value. Fikes points to the testimony of Smith as determinative of the stereo’s market value, and urges that the court’s finding of $600 as the market value to be without support in the evidence.

The courts of this State recognize a distinction between marketable chattels possessed for sale and chattels possessed for the comfort and well-being of the owner. The loss value of the former is determined by its market value while the loss value of the latter is measured by the value of its use to the owner who suffered the deprivation. Crisp v. Security National Insurance Company, 369 S.W.2d 326, 329 (Tex.1963). Walton’s stereo fits within the purview of the second classification and, by the guidelines of Crisp, Walton was entitled to recover not merely what the stereo could have been sold for in the market, but rather what its actual value was to her. Walton testified that she thought if somebody had offered her money for the stereo, she would not have taken $600 for it.

Nonetheless, the trial court, in finding the value of the stereo to be $600, did label that amount as the market value. Walton gave her opinion that when the stereo was taken from her apartment, its value was the same as, and it was worth the amount she paid, when she bought it, “around $600.” Testimony of this nature has been held to evidence the cash market value of converted property, Crouch Hardware Co. v. Walker, 51 Tex.Civ.App. 571, 113 S.W. 163, 164 (1908, no writ), and to be a sufficient basis to justify the court’s finding of value. Cunningham v. Villalon, 327 S.W.2d 461, 462-63 (Tex.Civ.App.—San Antonio 1959, no writ). Thus, we cannot say that there is no support in the evidence for the court’s finding of $600 as the market value of the stereo.

Fikes’s challenge to the award of exemplary damages is positioned from the viewpoint that its actions were justifiable and there is insufficient evidence to show either malice or gross negligence. To be a ground for exemplary damages, gross negligence is that entire want of care which raises the belief that the act or omission complained of is the result of conscious indifference to the right of the person to be affected by it. Atlas Chemical Industries, Inc. v. Anderson, 524 S.W.2d 681, 688 (Tex.1975). So, to recover exemplary damages here, Walton was required to affirmatively show that Fikes, through its employees or agents, disclosed an entire want of care or a conscious indifference to her rights. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, 713 (1943).

Fikes had no right to enter Walton’s apartment and seize her property unless Walton remained in default of a lease provision after five days notice. Yet, Fikes alleged and contends there was a proper predicate for the seizure in that Walton was delinquent in her lease payments and the apartment manager had heard from a reliable source that Walton was about to move.

However, from the evidence adduced, the trial court specifically found that: Walton was not in default of the lease agreement when the stereo and vacuum cleaner were seized; Fikes willfully and intentionally instructed the apartment manager to ignore the five-day notice requirement; the property was taken without the knowledge or consent of Walton; Walton’s demand for return of the property was denied; and at or about the time the property was taken, Fikes deliberately cut off the electricity to Walton’s apartment. The court did not make any finding of justification on Fikes’s part. Additionally, the evidence produced testimony that: Walton had no intention of moving until Fikes committed the acts found by the court; the apartment manager found no indication in the apartment that Walton was about to move; and the stereo was kept in the party room of the apartment complex and used by Fikes’s employees.

Other than by reference to testimony of Walton’s delinquency in payment and information that she was about to move as justification for its actions, Fikes does not directly attack the court’s findings of fact. The findings, therefore, are binding, Hines v. First Guaranty State Bank of Aubrey, 243 S.W. 972 (Tex.Comm’n App.1922, judgmt. adopted), and establish an entire want of care or conscious indifference of Walton’s rights on the part of Fikes. Moreover, even considering Fikes’s evidence of justification, a review of the entire record under the criteria of Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), demonstrates some evidence of a ground for exemplary damages, and we cannot say, in the light of all of the evidence, that the determination to award exemplary damages is manifestly unjust.

Fikes challenges the allowance of attorney’s fees. Fikes submits that the award was erroneous for the lack of proper pleadings and because in a conversion suit such fees are not allowed either as actual damages or under any statutory provision.

It is a fixed principle in our law that attorney’s fees are not recoverable in an action in tort or upon a contract unless provided by statute or by contract between the parties. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex.1967). Furthermore, in a conversion action, attorney’s fees are not recoverable as actual or exemplary damages. Security State Bank v. Spinnler, 55 S.W.2d 128, 129 (Tex.Civ.App.—Amarillo 1932, writ dism’d). Because the lease agreement contains no provision regarding attorney’s fees, Walton may recover them only if so provided by statute.

The trial court concluded that Fikes, acting through its agents, took property in violation of Tex.Rev.Civ.Stat.Ann. art. 5236d § 5 (Supp.1978), which, as material here, provides that it shall be unlawful for a landlord or his agent to seize non-exempt property unless pursuant to the terms of the written rental agreement. Section 7 of the article specifies that upon willful violation of the article,

the tenant may recover one month’s rent, plus actual damages, plus reasonable attorneys fees, less any delinquent rentals or other sums for which the tenant is liable.

By the provisions of Section 8, the article does not diminish a tenant’s right to pursue additional consistent remedies at common law.

The determinative question, then, is whether Walton pursued the remedies allowed by Article 5236d, Section 7, or sought the recovery permitted under the common law action for conversion. As cast, her pleadings alleged the primary right to exemplary damages of three times the alleged value of the converted property and return of the property with annual interest on its value. Alternatively, she alleged the right to the exemplary damages and the value of the converted property. Other than being mentioned in the prayer, attorney’s fees were not included as an element of recovery in the allegations.

The allegations contained in the petition determine the nature and character of a suit. Wynn v. State ex rel. Wichita County, 431 S.W.2d 934, 935 (Tex.Civ.App.—Amarillo 1968, no writ). The petition must contain a statement in clear and concise language of the plaintiff’s cause of action and must give fair notice of the claim involved. Tex.R.Civ.P. 47; Christy v. Hamilton, 384 S.W.2d 795, 796 (Tex.Civ.App.—Amarillo 1946, no writ). Therefore, a party must recover in the right in which he sues and upon proof of the facts stated in his pleadings, and he cannot recover through a right not asserted. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, 132 (1942).

Governed by these principles, a fair reading of Walton’s pleadings compels the conclusion that she did not seek the remedies provided by the statute. The statute does not include among its remedies the exemplary damages Walton alleged as the principal amount of her recovery, and she did not encompass in her allegations any claim to the one month’s rent and reasonable attorney’s fees permitted by the statute. Walton’s pleadings do not refer to the statute, and we see nothing in the pleadings that asserted the rights conferred by, or gave fair notice that she intended to ground her action on, the statute.

Nor are we persuaded to accept Walton’s proposal that, although she did not specially raise the issue of reasonable attorney’s fees under the statute, the issue was tried by consent pursuant to Tex.R.Civ.P. 67. That rule does sanction an unpleaded issue to be treated as raised in the pleadings when it is tried by express or implied consent; but, the rule is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unpleaded issue. It is not intended to establish a general rule of practice and should be applied with care, and in no event in a doubtful situation. Foxworth Galbraith Lumber Co. v. Southwestern Contracting Corporation, 165 S.W.2d 221, 224 (Tex.Civ.App.—Fort Worth 1942, writ ref’d w. o. m.).

The only mention of attorney’s fees at trial occurred in the following manner:

THE COURT: Who will you have next, Mr. Florey?
MR. FLOREY [Walton’s counsel]: Your Honor, the only thing I have left to offer into evidence is the value of attorney’s fees. Mr. Brister and myself agreed that if the judge decides to access [s/c] attorney’s fees, that it shall be at his discretion to determine the amount and that testimony as to the value of such fees will not be necessary.
THE COURT: Do you so stipulate, Mr. Brister?
MR. BRISTER [Fikes’s counsel]: Yes.

The stipulation itself contains no language signifying any agreement that an allowance of attorney’s fees is either within the scope of the action or proper; the language merely stipulates to the understanding that the court may fix a dollar amount without hearing evidence on the value of attorney’s fees. If it be arguable that the stipulation constitutes the hearing of some evidence on the issue of attorney’s fees, the introduction of evidence alone does not mean the parties consented to a trial of the unpleaded issue; there must be more. Harkey v. Texas Employers’ Ins. Ass’n., 146 Tex. 504, 208 S.W.2d 919, 922 (1948). But here, there was nothing more. No indication was given to the court that Walton was claiming attorney’s fees for a willful violation of Article 5236d.

On balance, it is significant that by pleadings, in the manner of trial, and through their briefs, the parties have treated this cause as a common law action for conversion. This treatment authorizes us to likewise treat the action as one for conversion, McLellan Stores Co. v. Lindsey, 157 S.W.2d 1013, 1015 (Tex.Civ.App.—Eastland 1941, writ ref’d w. o. m.); Lucas v. Lucas, 365 S.W.2d 372, 379 (Tex.Civ.App.—Beaumont 1962, no writ), in which, as noted, attorney’s fees are not a separate element of recovery. Security State Bank v. Spinnler, supra, at 129. It being axiomatic that a judgment shall conform to the pleadings and the nature of the case proved, Tex.R. Civ.P. 301; Starr v. Ferguson, supra, 166 S.W.2d at 132, the award for attorney’s fees must be eliminated from the judgment.

Accordingly, the judgment of the trial court is modified to eliminate therefrom the award of $300 for attorney’s fees and, as modified, the judgment is affirmed. Tex.R. Civ.P. 434.

Seventy-seven (77%) percent of the costs are adjudged against Jay Fikes and Associates, d/b/a Kings Park Apartments, and twenty-three (23%) percent of the costs are adjudged against Sherry Smith Walton.


author: DIES, Chief Justice.

text:
    HODGE BOATS AND MOTORS et al., Appellants, v. Steven W. KING, Appellee.
    No. 8177.
    Court of Civil Appeals, Beaumont.
    Feb. 8, 1979.
    Rehearing Denied March 8, 1979.
    Jerry V. Pennington, Orange, for appellants.
    Buddie J. Hahn, Vidor, for appellee.
   DIES, Chief Justice.

Plaintiff below, Steven W. King, sued National County Mutual Fire Insurance Company (National) and Hodge Boats and Motors (Hodge) for damage done to his boat motor. Plaintiff alleged that the damage was either done by a foreign object in which case it should be covered by his insurer, National, or by an inherent defect in which case it should be covered by the manufacturer’s warranty (Mercury Marine). Hodge was the dealer from whom King bought the motor. In his first amended original petition, King plead that if the damage was not due to a foreign object or owner abuse Hodge was liable for breach of warranty and was in violation of the Deceptive Trade Practices — Consumer Protection Act. In the alternative, King plead that if the damage was due to owner abuse Hodge was liable on a negligence theory for failure to instruct plaintiff concerning the proper manner to operate the boat.

Trial was to a jury, and, prior to the submission of special issues, the court granted an instructed verdict for National. The jury found that Hodge had breached an express warranty. The court concluded that this breach was a violation of the Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Comm.Code § 17.50 (Vernon Supp.1978); found that plaintiff had suffered $1,400 actual damages; and, pursuant to subsection b of § 17.50, awarded plaintiff $4,200 in treble damages, and court costs and attorney fees of $1,625. The court further ordered that plaintiff take nothing from defendant National. From this judgment, defendant Hodge perfects this appeal.

There is a serious question here whether Hodge made any warranty. The “Limited Warranty” in our record is from Mercury warranting the motor “to be free from defects in material and workmanship.” It further excepted damage caused by “. . . abnormal operation or improper installation. . . . ” The delivery of the manufacturer’s warranty to the purchaser by the dealer does not make a dealer a party to that instrument. Bill McDavid Oldsmobile, Inc. v. Mulcahy, 533 S.W.2d 160, 164 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). See also Import Motors, Inc. v. Matthews, 557 S.W.2d 807 (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.).

But laying aside this problem, we agree with appellants that plaintiff offered no evidence of a defect in parts or workmanship. After the motor was installed by Hodge, plaintiff raised it on the transom to achieve more speed. Plaintiff’s only witness on defect was Mr. David Carnley, who did not examine the motor until approximately one and one-half years after the damage. Carnley gave several causes for scored pistons:

1. Improper fitting.
2. Inadequate lubrication.
3. Excessive r. p. m.’s.
4. Advanced timing.
5. Low octane gas.

It should be noted that three of the above reasons would be due to owner abuse.

Carnley was asked: “Is it correct then that you cannot state affirmatively that there was a defective part or defective workmanship in putting this engine together that caused the damage?” He replied: “Yes, and I also state that I can’t state that there wasn’t either.” This burden was on plaintiff consumer. See Woods v. Littleton, 554 S.W.2d 662, 669 (Tex.1977); Joe Oil Aromatics, Inc. v. Commercial Fuel Oil Co., 564 S.W.2d 490 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). If the evidence establishes no more than a surmise or suspicion as to the existence of the ultimate fact as found by the jury, there is no legally sufficient evidence to support the answer. W. D. Haden Co. v. Ryman, 362 S.W.2d 133 (Tex.Civ.App.—Houston 1962, writ ref’d). The judgment of the trial court is reversed, and it is rendered that plaintiff, Steven W. King, recover nothing of and from defendant Hodge Boats and Motors.

REVERSED and RENDERED.


author: MARTIN, Chief Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellant, v. Marvin W. BURGER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1979.
    Joseph L. Baker, Covington, for appellant.
    Marvin Wesley Burger, pro se.
    Before MARTIN, C. J., and HOGGE and VANCE, JJ.
   MARTIN, Chief Judge.

This appeal stems from the judgment of the Kenton Circuit Court affirming the award of $88.49 made by the Kentucky Board of Claims to appellee, Marvin Burger, for damages done to his automobile as a result of pieces of rock being thrown against the side of his vehicle by a lawn mower operated by an employee of the Kentucky Department of Transportation, Bureau of Highways.

There is no dispute as to how the incident happened or as to the amount of the damages sustained. On September 20, 1976, Burger was proceeding in a southerly direction along U.S. 27 near Falmouth, Kentucky, when his car was struck by pieces of rock thrown by a lawn mower operated by a Bureau of Highways employee. Subsequently, Burger filed a claim for his damages with the Board of Claims. On December 22, 1977, the Board rendered its decision in favor of Burger, finding the Commonwealth liable on the theory of strict liability. The Kenton Circuit Court affirmed this decision, although it added that it did not agree with the Board’s reasoning. The court did not elaborate on its differences with the Board.

On appeal, the Commonwealth contends that the Board of Claims is given no authority under K.R.S. 44.070 to make awards on the basis of strict liability, and that since the Board made no finding as to negligence on the part of the Commonwealth, the Commonwealth should be completely exonerated of liability for the damages.

As Burger has not filed a brief on appeal, we are authorized by CR 76.12(8)(c)(i) to accept the facts and issues stated by the Commonwealth as true. However, we have conducted an independent review of the record, and have found that the Commonwealth has accurately stated the case.

We are of the opinion that the theories of negligence and strict liability are mutually exclusive. Negligence, as defined by Restatement (Second) of Torts § 282(f) (1965) at 11, is “conduct which falls below the standard of behavior established by law for the protection of others” and “carries with it the idea of social fault.” Strict liability, on the other hand, may be described as “liability without fault.” Acts which create such a liability are those which, “although done with every precaution which it is practicable to demand, involve an irreducible minimum of danger to others, but which are so far justified by their utility or by traditional usage that even the most perfect system of preventive law would not forbid them.” Id.

We are further of the opinion that the power of the Board of Claims to make awards is limited to those cases in which it finds that the damages were proximately caused by the negligence of the Commonwealth or its agents. K.R.S. 44.070(1), which is the enabling statute for the Board of Claims, makes no mention of any basis for relief other than negligence. In setting forth the Board’s authority, it provides only that the Board can:

compensate persons for damages sustained to either person or property as a proximate result of negligence on the part of the commonwealth, any of its departments or agencies, or any of its officers, agents or employes while acting within the scope of their employment by the commonwealth or any of its departments or agencies;

Here, the Board declared that the Commonwealth was strictly liable for the damages incurred on the basis of its findings that the lawn mowers used by the Commonwealth were inherently dangerous machines, and that this inherent danger was known to the officials of the Bureau of Highways. As we believe that assigning liability on the theory of strict liability is inconsistent with the directive of K.R.S. 44.070(1), we must conclude that the Board exceeded its power and authority in this particular case.

However, we do not agree with the Commonwealth that at this point it can be exonerated from liability because of the Board’s failure to find negligence on its part. It is our opinion that the Board, in determining that the Commonwealth was strictly liable for the damage, failed to make a finding as to the Commonwealth’s negligence; not because it could find no negligent conduct, but rather because it did not feel it was necessary to make such a finding in light of the strict liability theory it espoused. The Board did make a passing reference in the last sentence of its opinion to the effect that the Commonwealth had to establish more than an inspection of the site of the mowing zone and the machines in order to prevail. It also stated that signs warning motorists of the mowing operation were placed along the highway near the scene, and that chains meant to deflect and reduce the velocity of rocks or debris had been placed over the discharge chutes of the lawn mowers. However, it did not pass on whether these precautions were all that was reasonably necessary under the circumstances, but rather stated, in effect, that regardless of these precautions the Commonwealth was strictly liable. As we have determined that the Board exceeded its power in proceeding under a theory of strict liability, we are of the opinion it should now have the opportunity to review the facts with an eye towards determining whether or not the Commonwealth was negligent, and if so, whether its negligence was the proximate cause of the damages Mr. Burger’s automobile incurred.

The judgment is reversed and the case is remanded to the circuit court with directions to remand to the Board of Claims for further findings consistent with this opinion.

All concur.


author: GANT, Judge.

text:
    Lloyd F. ADAMS, Appellant, v. Roy DAVIS, Regina Davis, and Stephen Harris, Individually and as Administrator of the Estate of Lydia Harris, Deceased, Appellees.
    Court of Appeals of Kentucky.
    March 9, 1979.

      William Mellor, Henry Triplett, Louisville, Raymond Overstreet, Liberty, Spra-gens, Smith & Higdon, Lebanon, for Lloyd F. Adams.
    William A. Miller, Louisville, Morris R. Butler, Greensburg, Fred Faulkner, Jr., Campbellsville, for Roy Davis and Regina Davis.
    Robert L. Dowell, Greensburg, William A. Miller, Louisville, Fred Faulkner, Jr., Camp-bellsville, for Stephen Harris, Individually and as Administrator of the Estate of Lydia Harris, Deceased.
    Before GANT, COOPER and WILHOIT, JJ.
   GANT, Judge.

On May 27, 1973, a tractor-trailer driven by appellant Adams collided with an auto driven by appellee Roy Davis, containing passengers Stephen Harris, Lydia Harris, and Regina Davis. Lydia Harris died as a result of the accident and the other three occupants of the car sustained injuries. Both the Davises and Stephen Harris, individually and as administrator of his wife’s estate, brought law suits arising from the accident. The two actions were consolidated for trial on September 27 and 28, 1977. A jury found Adams liable to the plaintiffs and judgment was entered on the jury’s verdict. On appeal, Adams asserts four grounds that he contends entitle him to a new trial.

I. Improper Conduct of Juror — A juror in this case apparently approached the appellant on two occasions during the same day of trial. The conversations that ensued are described in Adams’s affidavit as follows:

FIRST CONVERSATION

JUROR: Do you have liability insurance on your truck?

DEFENDANT: Yes, but I don’t know if I have enough.

JUROR: I know how expensive that can be for á person who is in business for himself.

SECOND CONVERSATION

JUROR: Are you still driving a truck?

DEFENDANT: No, I got out.

JUROR: Where are you working now?

DEFENDANT: I am working at Firestone in Danville.

JUROR: I wish I could talk with you longer but I can’t right now.

Adams states that only on being questioned by his attorney after the verdict had been reached did he report these conversations because he did not realize the significance of them. Adams’s motion for a new trial based on this occurrence was denied. Although the actions of the juror in this ease were highly improper and in direct contradiction to the instructions of the trial judge, appellant’s request for a new trial cannot be granted for two reasons. First, to allow a defendant to participate in misconduct, knowingly withhold information about it until a verdict is reached, and then complain of juror misconduct could subject every jury verdict to attack. The complaint must come before the jury is dismissed. Cf. Vanceburg Tel. Co. v. Bevis, 148 Ky. 285, 146 S.W. 420 (1912); and Hatfield v. Commonwealth, 180 Ky. 642, 645, 203 S.W. 562, 563 (1918). Appellant’s lack of knowledge of legal proceedings and technicalities is understandable, but this is the reason he obtained counsel to represent him. Appellant here had ample opportunity to discuss this matter with his attorney and chose not to do so. Although we will not speculate as to motive, if any, for appellant’s silence, suffice it to say that the granting of a new trial under these circumstances would encourage fraud on the part of disgruntled litigants and would be totally contrary to the law in this jurisdiction.

Further, appellant has shown no prejudice resulting from the juror’s conversation with him. If anything, the nature of the juror’s remarks indicates his sympathy with appellant’s position, and appellant’s reply to the juror’s inquiry was that he did not feel that he had enough insurance and seems more likely to create prejudice to the plaintiffs in this action. Insurance is a fact of life in our society and jurors are cognizant that most businessmen and operators of vehicles carry liability insurance of some kind. Under the present facts, including the fact that the appellant himself imparted this information to the juror, there is no showing of prejudice to warrant the granting of a new trial.

II. Testimony of David Dobson, Vocational Expert — Appellant maintains that appellee’s expert witness, David Dobson, vocational expert, should not have been allowed to testify as to the employment prospects of appellee Davis because his opinion was based on an out-of-court personal interview with Davis, specifically, Davis’s statements concerning pain and limitation of movement he was suffering. Dobson testified that his opinion that Davis was unemployable was based both on his interview with Davis and the deposition of Dr. Keis-ler, which was admitted into evidence, and that he read the doctor’s deposition only to ascertain if the doctor’s evaluation agreed with the patient’s own evaluation of his condition. The Supreme Court of Kentucky held in Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), that expert testimony may be based on information obtained from third persons if it is of the type customarily relied upon by other experts in the profession. If information from third persons may be used, obviously information obtained from the party himself — who is before the court and has given identical information into evidence from the stand — may be used. Dobson testified that he usually relies on a personal interview with his clients. At TR p. 206 he states:

Q. In forming an evaluation is it necessary to interview the person to determine what complaints they have as well as to physically look at them yourself?
A. Yes, sir, it is impossible to do a vocational evaluation without having an understanding of the education of the person, his physical condition, his work history, and any pertinent information which may help in determining what work skills a person has and what kind of work he can do.

Appellant likens the vocational expert to a physician and states that the basis for his testimony is unacceptable under the rule that a physician who examines a patient solely for purposes of testifying may not base his opinion on the patient’s case history. However, Big Sandy Community Action Program v. Chaffins, Ky., 502 S.W.2d 526 (1973), held that a testifying physician may take into account the subjective symptomology of the patient as distinguished from the case history. The only “case history” offered by Davis to Dobson was his work history, which is objective and not disputed. Subjective statements as to pain and limitation of movement at the time of the interview are a proper basis for Dobson’s testimony under Big Sandy, supra.

Additional support for admitting this testimony comes from the fact that Davis personally testified prior to Dobson’s taking the stand. Thus, the jury had ample opportunity to hear all the subjective symptoms firsthand, to observe Davis and judge his credibility for themselves. Any doubt left in the minds of the jury as to the basis of Dobson’s opinion was surely erased by the skillful cross-examination by appellant’s counsel, who elicited the admission from Dobson that, based solely on Dr. Keisler’s deposition, Davis would not be totally unemployable, while based on Davis’s own statements, he would be. There was no error in admitting Dobson’s expert opinion testimony.

III. Testimony of Dr. Carl Abner, Economist, as to “Potential Cumulative Wage Loss” Resulting from Death of Lydia Harris — Dr. Abner, expert witness for plaintiff/appellee, based his calculations on the assumption that Lydia Harris would work until age 65 at minimum wage and would earn a total of $208,104 from date of trial to age 65. Lost earnings of decedent at minimum wage of $1.60 per hour from date of death to date of trial were calculated at $13,312, for a total of $221,416. The amount of judgment for the estate of Lydia Harris was $200,000 for “destruction of power to labor and earn money.”

Although the parties stipulated as to decedent’s life expectancy, appellant objected to Dr. Abner’s basing his calculations on the assumption that her work-life expectancy would extend to age 65. Obviously this is pure speculation on the part of the witness. Decedent may have decided not to work past age 25 or she may have worked to age 90. Some assumptions must be made, however, to be able to calculate damages in an action for wrongful death. As stated in Americo Marketing Co. of Memphis, Inc. v. Myers, 494 F.2d 904 (1974), also an automobile accident case, applying Kentucky law:

This witness was qualified as an economist and very carefully testified concerning the methods which he used in reaching his estimates of future earnings. He also specified a number of publications which he stated are generally relied upon by economists in making similar calculations and which he referred to in reaching independent conclusions with respect to each of the decedents. The measure of damages in wrongful death actions in Kentucky is the value of the destruction of the power of the decedent to earn money, not the destruction of income from a particular job or occupation. Roland v. Beckham, 408 S.W.2d 628 (Ky.1966). The award in such a case is not limited to the past earnings of the decedent, as these may not be indicative of his power to earn. Humble v. Mountain State Construction Co., 441 F.2d 816 (6th Cir. 1971). Under this rule, there is necessarily an element of speculation involved in determining the power to earn money, particularly in the case of children and others who have not established a history of earnings. Yet the Kentucky courts have consistently upheld verdicts in such eases in the face of argument that they are based on speculation. See, e. g. Rice v. Rizk, 453 S.W.2d 732 (Ky.1970). Under the Kentucky rule of damages a great deal of latitude must necessarily be allowed in wrongful death cases. City of Louisville v. Stuckenborg, 438 S.W.2d 94 (Ky.1968). Id., page 913. (Emphasis added).

Dr. Abner explained that the table used by him represented no one individual but average statistics valid only for large groups. He also testified that his figures would be incorrect if the decedent left her employment at any time before age 65. With this knowledge, the jury was able to give whatever weight it wished to his testimony.

IV. Failure To Admit Evidence of Stephen Harris’s Remarriage — The measure of damages for a wrongful death in this jurisdiction is the value of the destruction of the power of the decedent to earn money. The existence and status of survivors has no bearing on the calculation of this value. Thus, the evidence of remarriage of a surviving spouse is incompetent for any purpose in a wrongful death action. See McGuire v. East Ky. Beverage Co., Ky., 238 S.W.2d 1020 (1951). The reason for this rule is the obvious prejudice to the plaintiff that would be impossible to overcome. Appellant urges that this evidence be admitted only upon retrial of the wrongful death action and then only in the event that evidence as to decedent’s value as a homemaker be introduced. This “equivalent value” testimony was stricken from the record at trial and the jury admonished not to consider it so there is no need to discuss contingencies here. There is no merit to appellant’s claim that evidence of Stephen Harris’s remarriage affects the legitimacy of his claim for bodily injury and appellant gives no authority or basis for that claim.

The judgment of the trial court is affirmed.

All concur.


author: DONNELLY, Judge. FINCH, Senior Judge,

text:
    STATE of Missouri, Respondent, v. Jack LINDSEY, Appellant.
    No. 60816.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.
    Respondent’s Motion for Rehearing Denied April 10, 1979.
    James J. Knappenberger, Shaw, Howlett & Schwartz, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Katherine M. Krause, Asst. Attys. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, Jack Lindsey, was convicted in the Circuit Court of St. Charles County, Missouri, of selling a controlled substance (§ 195.020, RSMo 1969), and his punishment was assessed at imprisonment for a term of twenty years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Eastern District of the Court of Appeals. The case was transferred to this Court, after opinion, by order of this Court. We decide the case here the same as on original appeal. Mo.Const. Art. V, § 10.

At trial, the following transpired on voir dire of the jury by the Assistant Prosecuting Attorney:

“MR. FANNING: What we mean by this is that the presumption of innocence — if you had to go back now and return a verdict without hearing evidence at all you would have to return a verdict of not guilty because as the client of Mr. Schwartz he is presumed to be innocent. That is what we mean by that. The State must go forward with evidence. The second principle is the burden of proof. The burden of proof is on the State who I represent in this case and we must go forward with the evidence. Mr. Lindsey doesn’t have to go forward with any evidence if he doesn’t wish to. He doesn’t have to take the stand if he doesn’t want to
“MR. SCHWARTZ: I object to the statement of counsel. May we approach the bench?
“THE COURT: The objection is sustained.
“MR. SCHWARTZ: May we approach the bench?
“(Counsel approached the bench and the following proceedings were had:)
“MR. SCHWARTZ: Judge, I move for a mistrial at this time on the statement of the Prosecuting Attorney in this case as to what the man’s rights are. I believe it is a misstatement of his rights and a direct comment on his right to testify or not to testify in this case. I think it is so prejudicial and suggests to the jury that the defendant has a duty to do something even though he may not do it where he is sitting or on the witness stand. It is a direct infringement of his constitutional right to remain silent and a direct comment on that right.” (Emphasis ours.)

Appellant’s request for mistrial was considered by the court and denied. Appellant subsequently took the stand and testified.

Article I, § 19 of the Missouri Constitution provides, in part, “That no person shall be compelled to testify against himself in a criminal cause, . . .” This language prohibits not only comments on the failure of a defendant to testify (see § 546.270, RSMo 1969, and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1964)), but also comments which have the effect of compelling a defendant to testify. The use of language which has either effect must be condemned. “The effect of the remarks must have been either to coerce the defendant to testify, as has been said, ‘with a halter about his neck,’ or to induce him to remain silent, with knowledge that the jury had been challenged in the outset to observe whether or not he would go upon the stand under the goad of the prosecutor’s statement.” Coleman v. State, 111 Ind. 563, 13 N.E. 100, 101 (1887).

We believe and hold that the italicized language used by the Assistant Prosecuting Attorney was of such character that the jury would naturally and necessarily be influenced so as to deny appellant a fair trial. Conduct which naturally and necessarily has the effect of denying an accused a fair trial can never be harmless.

The judgment is reversed and the case is remanded for new trial.

MORGAN, C. J., and BARDGETT and SEILER, JJ., concur.

FINCH, Senior Judge, dissents in separate dissenting opinion filed.

RENDLEN, J., and WELBORN, Special Judge, dissent and concur in separate dissenting opinion of FINCH, Senior Judge.

SIMEONE, J., not sitting.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

FINCH, Senior Judge,

dissenting.

I respectfully dissent.

The statement of the assistant prosecuting attorney during voir dire of the jury clearly shows that he was telling the jury that the defendant is presumed to be innocent and that the burden of proof to establish guilt is on the State. What he said about defendant not having to go forward with any evidence or take the stand was a part of that statement explaining that defendant is presumed to be innocent and must be proved by the State to be guilty.

I cannot agree with the conclusion in the principal opinion that the statement “was of such character that the jury would naturally and necessarily be influenced so as to deny appellant a fair trial.” This was not a comment that defendant had failed to take the stand and refute the State’s evidence. This was on voir dire and no evidence had been heard. The remarks also did not have the effect of compelling defendant to testify. The remarks did not challenge the jury to observe whether defendant would go on the stand and testify. The remarks had no such implication or tenor.

I do not mean to suggest that it is advisable or desirable for prosecutors to make statements such as the ones here in question. What has occurred shows how foolish it is to risk reversal of a conviction on the basis of any kind of a reference to defendant not being obligated to take the stand. However, having said that, I still would not reverse this conviction. In my view the statements were not harmful or misleading and do not justify reversal of this conviction.


author: SIMEONE, Judge. MORGAN, Chief Justice,

text:
    James Edward WELCH and Charlotte A. Welch, Plaintiffs-Appellants, v. Myron Edward HYATT, Defendant-Respondent.
    No. 60727.
    Supreme Court of Missouri, En Banc.
    March 13, 1979.
    Appellants’ Motion for Rehearing Denied April 10, 1979.

      W. Raleigh Gough, Butler, George T. Sweitzer, Jr., Harrisonville, Edward J. Murphy, Butler, for plaintiffs-appellants.
    Robert W. Spangler, Robert B. Reeser, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for defendant-respondent.
   SIMEONE, Judge.

This is an appeal by the plaintiffs-appellants James and Charlotte Welch from a judgment entered on April 3, 1975, upon a jury verdict by the circuit court of Cass County in favor of the defendant-respondent, Myron Edward Hyatt on the plaintiffs’ claim for damages for personal injuries and loss of services arising out of an automobile collision. The Court of Appeals, Western District affirmed the judgment. Upon motion filed by plaintiffs we granted transfer to this court and now decide the case as an original appeal, under the provisions of Art. V, § 10, Mo.Const. We adopt portions of the court of appeals opinion without quotation marks.

This cause arises from an automobile collision between a 1949 Chevrolet “pickup” truck driven by plaintiff James Welch and a 1969 Chevrolet driven by Myron Hyatt. Trial began April 1, 1975. The collision occurred on October 30, 1971 on Highway M — 2 in Cass County .6 of a mile east of Route J and six to eight miles west of Harrisonville, Mo. The collision occurred when the eastbound Welch pickup truck was struck from the rear by the Hyatt Chevrolet. At the scene of the collision Highway M — 2 runs “in a general easterly and westerly direction” or “basically east and west” and at the scene the highway is fairly level and straight but there is a curve in the road approximately 600 feet west of the point of collision. The highway is 21 feet wide with 12 foot shoulders. At the scene of the collision a “farm driveway” proceeds north from the highway to a trailer house on the north side of the highway where some junk pickup trucks rested. The trailer house was occupied by “Jack” who was known to Mr. Welch. The collision occurred near the driveway.

The essential question is whether at the time of the collision, Welch was in the process of a left-hand turn onto the driveway and, if so, whether his failure to signal that movement was contributorily negligent.

While the evidence is contradictory, the jury could reasonably find the following.

On October 30,1971, Mr. Welch was driving an old one-half ton pickup truck which he had borrowed from his brother two or three weeks before. “[T]he body wasn’t the best in the world.” The truck had “two cracked door glasses.” “They were busted up pretty bad.” There were no electric signals on the truck and only one brake light (the right) operated. On that date shortly before noon, Welch decided to drive to Bob’s Salvage Yard near Harrisonville to “try to replace [the] two door glasses.” In the truck with him were his two-year old son and his fifteen-year old brother-in-law. Mr. Welch testified that he was driving on the side of the road in a straight line and “never turned to the left or to the right” nor did he increase or decrease his speed.

“Well, I was driving down the — east toward Harrisonville on Number 2, on my side of the road, and my little boy was standing up so my brother-in-law reached to get him, you know, took him back around and set him on his lap and driving along there and all of a sudden I just got rammed.”

He admitted that the collision occurred near the farm driveway and that he knew that “Jack” lived there and had some junk vehicles, that he had been to the trailer house before but denied that he was going to the trailer house to see him. Hence, he indicated he had no intention to turn — “Well, where you going to go to that trailer house to see that man [Jack] about some parts for your pickup at the time of the accident? . No, I wasn’t.” Welch testified that at the time he was struck his truck was “probably about a foot from the center line or so” on the south side of the highway. After the accident, Welch, while not unconscious, could not remember anything until he was in the doctor’s office some time later. He received injuries which are not the subject of dispute in this proceeding.

The defendant-Hyatt’s version of the collision was in marked contrast to that of Mr. Welch. Hyatt was driving the Chevrolet and his wife Marie was sitting in the passenger seat reading a book. It was his testimony that he was attempting to go to a farm “[t]o look for a bull.” He proceeded west on highway 2, went past the farm, asked directions, turned around and proceeded east. He was driving about 55-60 m. p. h. After he made the curve, he became conscious of the pickup truck ahead. He continued to observe the truck. The truck was traveling at about 45 m. p. h. and as the “truck was headed down the highway to the east, it had a light that come on and went off, come on and went off, and I apparently thought that he was probably going to pull off to pick up his mail or pull to the right so I pulled to the passing [north] lane of the highway.” The right rear light went on and off “[p]ossibly three times.” As Hyatt got closer to the truck, he noticed that “it was beginning to come from the right part of the — side of the highway toward the center line with the front wheels like it was going to turn to the left.” Hyatt began to apply the brakes. Welch “continued to be in motion going to the left of the highway.” Hyatt put on the brakes and the car began to slide. Hyatt “could see” that Welch was “going to cross the center line in the lane of passing lane [sic] that I was in. And I had thought how will I miss the truck altogether, so I pulled my car to the right [eastbound] lane.” The cars kept getting closer and “I thought if there was any way possible to get around behind why that is what I wanted to do to miss it completely.” But the cars collided— Hyatt’s left fender and bumper “contacted” the bumper of the pickup. At the time of the impact, Hyatt testified that the front of the pickup was “[a]cross the center line.” At the time of the impact the truck was traveling 7-10 miles per hour and Hyatt had slowed to ten miles per hour. Although he left skidmarks of 75 or 80 feet, he did not avoid the impact. The impact was referred to as a glancing blow. Hyatt’s auto came to rest east of a “mailbox” headed east and the Welch truck came to rest in the “driveway” headed in the opposite direction (west). Mrs. Hyatt went to the trailer house and called the police.

On cross-examination, plaintiffs’ counsel sought to show that Welch did not intend to turn left, and that Hyatt never sounded a horn at any time before he started to pass.

When asked on cross-examination “Now isn’t it true that at no time, up to the moment that the two vehicles came together, isn’t it true that no part of that pickup truck ever crossed the center line of the highway with the possible exception of the bumper, front bumper,” Hyatt answered “I don’t agree.” Hyatt was unsure as to how much of the truck crossed the center line “because I was trying to . control my car." Hyatt was also confronted with his earlier deposition in which he stated that the pickup, prior to the collision, did not cross the center line.

When asked at what angle the pickup was at the moment of impact, Hyatt stated “It would have been sitting with the front portion of it to the left of the highway, of the centerline, with the rear part to the right.” Due to the width of the highway and the width of the Welch pickup, counsel sought to show that the pickup moved “perhaps two feet” which indicated that Welch was going to turn left. He indicated the impact occurred “just about opposite” the driveway.

On cross-examination, of Hyatt, plaintiff’s counsel asked:

“Q. All right. Now you have described to the jury here that if you are coming down the road, you see this pickup is on its own right hand side and it begins to move to the left but at no time did it cross the center line prior to the impact. Are you saying that during that period of time then that the pickup moved perhaps two feet which indicated to you that he was going to turn to the left?
A. Yes.”

He did indicate, however, that the left front of the pickup was up to the driveway.

On redirect, Hyatt testified that at the time he saw the wheels of the pickup turn to the left, he was in the passing lane. He further testified that at the time of the occurrence, the pickup truck was headed “toward the driveway.”

A highway patrolman, who came to the scene following the collision, testified. He described the road, the shoulders, the topography of the highway and the farm driveway. He testified as to the location of the vehicles after they came to rest after the collision. The Hyatt vehicle was parked on the south shoulder facing east and the Welch pickup was facing back to the west. There were two skidmarks beginning north of the centerline in the west bound traffic lane of approximately 87 feet. The skid-marks curved back to the south into the east bound lane and ended close to the south edge of the pavement “[j]ust directly south of the driveway.” The officer found debris near the centerline of the highway “at the same point where what would have been the left wheel skidding came across the centerline.” The debris was just a few feet to the west edge of the driveway. Debris was found in the eastbound as well as the westbound lane. He checked the Welch vehicle, found no turn signaling devices but found it had only one brake light on the right rear — the left was not working.

After the evidence was closed and motions for directed verdicts on behalf of both parties were overruled, the court instructed the jury. The verdict directors for the plaintiffs were premised on the rear-end collision theory which authorized recovery unless the jury found that Welch was con-tributorily negligent. The court gave Instruction No. 4 which is one of the contentions of error here. Instruction No. 4 informed the jury:

“Your verdict must be for the Defendant whether or not you believe Defendant was negligent if you believe:
First, Plaintiff James Edward Welch failed to signal his intention to turn; and
Second, Plaintiff was thereby negligent; and
Third, such negligence of Plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”

The court also gave a converse instruction:

“Your verdict must be for defendant on plaintiff James Edward Welch’s claim for damages unless you believe that defendant was negligent as submitted in Instruction Number 4, [sic — 2] and that plaintiff James Edward Welch sustained damage as a direct result thereof.”

The trial court refused to give offered Instructions No. 13 and 14 which informed the jury that its verdict must be for the plaintiff if the defendant either failed to sound his horn before starting to pass plaintiff’s pickup truck or permitted his automobile to come into collision with the rear of plaintiff James Edward Welch’s pickup truck and defendant’s conduct in any one or more of such respects was negligent and as a direct result of such negligence plaintiff sustained damage.

During the closing argument of plaintiff’s counsel, counsel referred to the plaintiff’s verdict director.

“Then, the Court says, ‘as a direct result of that negligence,’ that is of the defendant running into the rear end of the plaintiff, ‘that the plaintiff sustained damages — ’ . . . ‘unless you believe that plaintiff’ is not entitled to recovery by reason of Instruction No. 4.’
“Now this is where we really get into the swearing match in this case. The plaintiff says, ‘I had no intention of making any left-hand turn. I was driving down the road and all of a sudden I was struck in the rear end.’ The defendant says, ‘I was coming down the highway, we come [sic] around a curve . and at that time the old pickup is about 150 feet from the driveway’, and at that time the defendant says, ‘Well it looked to me like the plaintiff’s pickup was pulling to the left.’ . . . Was the plaintiff intending to make a left-hand turn and if so, what evidence was there that the defendant observed at that time to indicate that? I submit to you there wasn’t any evidence . . . .”

Counsel referred to Hyatt’s deposition in which he stated that at no time was the pickup across the center line at the time of impact.

In defendant’s closing argument counsel informed the jury that Hyatt observed the “wheels turn to the left. This truck started to the left and he applied the brakes . . . . [H]e observed the truck coming over.” He also referred to the physical facts — debris near the center line of the roadway; at the same point where what would have been the left wheel skidding came across the center line; that the debris was just a few feet to the west edge of the driveway; the place the vehicles came to rest, a spare tire still lying in the bed of the truck; a glancing blow coming back to the right trying to miss him. Defendant also referred to Instruction No. 4 during argument:

“But there is another instruction in here that says if you find that this man was making a left turn and you believe that, then regardless of what you think Mr. Hyatt was doing, he still can’t recover, the plaintiff can’t recover. If you find that he was making a left turn without giving a timely warning . . . .” (Emphasis added)

After the instructions were given and arguments made, the jury retired and returned a verdict for the defendant. The judgment was entered on the verdict. In due course, plaintiffs filed their motion for new trial. In the motion plaintiffs contended the court erred in refusing to give the offered Instructions Nos. 18 and 14. With reference to Instruction No. 4 the motion stated:

“5. That the Court erred in giving and reading to the jury Instruction No. 4 submitted by Defendant Hyatt, over objection of Plaintiffs, which instruction erroneously directed and permitted the jury to return a verdict for Defendant if the jury found that Plaintiff James Edward Welch failed to signal his intention to turn which instruction erroneously assumed facts not in evidence, to wit: that Plaintiff . . . intended to turn or was making a turn of his vehicle at the time of the collision . . . ; that said instruction was further erroneous in that there was no evidence that a failure, if any, of Plaintiff ... to signal his intention to turn was a proximate or contributing cause of the collision mentioned in evidence.”

No mention was made about the erroneous reference in Instruction No. 5 to Instruction No. 4 instead of Instruction No. 2.

On appeal, plaintiffs urge reversal and contend the trial court erred (1) in giving Instruction No. 4 because such instruction erroneously hypothesized that plaintiff “failed to signal his intention to turn” when there was no evidence to show that plaintiff intended to “turn” or that he was in the act of turning; (2) in giving Instruction No. 4 because the instruction erroneously assumed a controverted fact that plaintiff intended to and was making a left turn; (3) in refusing to give Instructions No. 13 and 14 because failure to sound a horn before starting to pass was a pleaded ground of negligence which the evidence supported and (4) in giving Instruction No. 5 because it referred to Instruction No. 4, the contributory negligence instruction and the giving of such instruction was “plain error.”

As to the first point, plaintiffs argue that it was the defendant’s theory that Welch was guilty of contributory negligence because — as alleged in his answer — plaintiff commenced a turn to the left without first giving a timely and adequate signal. They argue that plaintiff “positively testified that he did not intend to turn into this driveway” and the vehicle never crossed the center line. They contend that there was no sufficient evidence that Welch was in fact intending to turn left or that he was turning — in the sense of “accomplishing a permanent change of direction.” “Plaintiff so testified and there is no testimony directly contradicting his testimony.” Plaintiffs emphasize certain testimony of the defendant Hyatt — as he got closer it was moving from right to left “toward the center line,” like it was “going to turn to the left.” He continued “in motion going to the left of the highway” and he could see that “it was going to cross the center line.” Appellants say that “[sjtill there is no testimony that any part of the truck crossed the center line.” Appellants argue that in any event the angle of the turn was very slight which constituted “more of a veer” and that such a slight turn (he contends two feet) is not a “turn” within the meaning of § 304.019. A “turn” is a permanent change of direction for the purpose of proceeding in an entirely different direction. Section 304.019, it is contended, does not prohibit every slight deviation from a straight course so long as the vehicle does not leave its right hand side of the highway. Appellants conclude by contending that plaintiff could not have been contributorily negligent in failing to signal an intended left turn in the sense of a turn across the left lane. At most, Welch was negligent in his failure to signal an intention to move right or left upon a roadway, the fourth and separate occasion for a signal under § 304.019 which was not in issue here.

As to the second point, plaintiffs argue that Instruction No. 4, the contributory negligence instruction, is erroneous because in stating that plaintiff “failed to signal his intention to turn” it assumes that plaintiff had an “intention” to turn and was in the act of turning — a controverted fact in the trial. Appellants argue that a jury would conclude that the instruction assumed as an undisputed fact that Welch intended to turn and that the only question was whether or not he failed to give a signal of his intention to turn.

As to the third point, appellants argue that the refused Instructions No. 13 and 14 referring to alternative submissions of defendant’s failure to sound a horn or permitted his automobile to come into collision with plaintiff’s truck should have been given because the petition alleged the failure to sound a horn as an additional ground of negligence. If defendant had sounded his horn when he first started to pass a jury could reasonably have found that plaintiff would then have kept his attention on the defendant’s automobile — he could have seen him in the rear mirror and he would have kept his truck as close to the right side of the road and possibly over onto the shoulder, when he saw defendant’s automobile move to the right.

And lastly, he argues that Instruction No. 5 was erroneous because it inadvertently referred to Instruction No. 4 (the contributory negligence instruction) rather than Instruction No. 2 (the verdict director). This was an obvious error and although not mentioned in the motion for new trial plaintiffs urge that we treat the erroneous reference as “plain error” under Rule 84.13(c).

On the other hand, respondent contends that (1) the court did not err in giving Instruction No. 4 because it was supported by substantial evidence; (2) the court did not err in giving the instruction on the ground that it assumed plaintiff intended to make a left turn because (a) the matter was not preserved in the motion for new trial in that the motion did not state that appellants had “some complaint related to the assumption of a controverted fact,” and (b) “since the jury did not find for defendant without finding plaintiff intended to or was making a left turn,” (3) the court did not err in refusing to give Instructions No. 13 and 14 because there was no substantial evidence that a failure to sound a horn directly and proximately caused the collision, and (4) the misnumbering in Instruction 5 was not plain error.

As to the first point raised by the appellants in analyzing whether there is evidence to support the submission of a contributory negligence submission, we consider the evidence in the light most favorable to the defendant and give him the benefit of all favorable inferences reasonably to be drawn from all of the evidence. Plaintiff’s evidence is to be disregarded unless it tends to support the grounds of contributory negligence submitted in the instruction. Thomas v. Fitch, 435 S.W.2d at 709; Jackson v. Skelly Oil Company, 413 S.W.2d 239, 242 (Mo. banc 1967); Highfill v. Brown, 340 S.W.2d at 661.

We hold that there was substantial evidence to support the giving of the contributory negligence Instruction No. 4. While the plaintiffs argue that the Welch movement was only a veer and not a substantial change of direction which a turn implies, there was substantial evidence from which the jury could find that the plaintiff intended to turn or was in the act of turning into the driveway. However, halting the description given by the defendant of the events, there was substantial evidence that the plaintiff was in the act of turning and crossed the center line before the impact. His testimony considered in the context of the position of the Welch truck after impact, and the other physical facts related above supports the contributory negligence submission of the contributory negligence instruction. The evidence to support such a submission need not be by direct and positive testimony only but may be shown by proof which fairly suggests that the contributory negligence proximately produced the injury.

In Thomas v. Fitch, supra, a rear end collision where plaintiff asserted his vehicle was completely in the right lane at the time of impact, the court affirmed a judgment for defendant. Plaintiff denied he ever crossed the center line and denied he had undertaken or intended to turn left at an intersection. Defendant testified that as the front of his car approached the rear of plaintiff’s vehicle he pulled into the left lane more or less straddling the center line. Defendant estimated the impact occurred two or three feet left of the center line of the highway. The court gave an instruction which in part related to the plaintiff’s failing to signal his intention to turn. Plaintiff objected because there was no substantial evidence that plaintiff intended to turn. The court stated:

“ ‘Intention’ is a state of mind seldom capable of direct proof and ordinarily is determinable only through logical deduction from proven facts. The question of intention is usually decided by the trier of the facts, and while a party may testify to his intention at a given time, if his testimony is at variance with the evidence it is of little value.” 435 S.W.2d at 709.

In Thomas, the evidence showed that plaintiff decreased his speed as the vehicle neared the intersection, the vehicle moved left and partially into the left lane so as to completely straddle the center line. The court held that under the facts it was permissible for the jury to infer and deduce from the evidence that plaintiff did, in fact, undertake and intend to turn left and that it was proper for the trial court to submit the instruction on contributory negligence.

Thomas is persuasive here. Not only is there testimony here that a portion of Welch’s vehicle crossed the center line, but the physical facts permit the jury to infer and deduce from the evidence that plaintiff intended to turn.

Plaintiffs in their reply brief contend nevertheless that the trial testimony of the defendant was contradicted by his deposition testimony that no part of the Welch truck had crossed the center line before the collision and so the probative effect of his court testimony was nullified. The plaintiffs claim the effect of the rule [Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647[6, 7][8] (1933)] that contradictory testimony by a witness on an issue — without other explanation — does not make a prima facie submission on that issue. That principle, however, does not appertain here and must be distinguished from the principle that the prior statement of a witness, even when the witness is a party, although admissible as impeachment, does not destroy the prima facie effect of his proof at the subsequent trial. Bonastia v. Terminal Railroad Ass’n of St. Louis, 409 S.W.2d 122, 125-126 (Mo.1966). That is because testimony given at the trial is subject to cross-examination and so is trustworthy to prove an issue, while the prior statement is hearsay as to that issue and so is valuable only as impeachment. McCormick on Evidence, § 34, et seq.; 88 C.J.S. Trial § 214(2). When the prior inconsistent statement comes from a witness who is also a party to the proceeding, the statement may be used in two aspects: as an admission of the adversary and so as substantive evidence upon the fact issues, or for the limited purpose of impeachment of credibility. Swift v. St. Louis-San Francisco Ry. Co., 15 S.W.2d 964, 968-969 (Mo.App.1929); Davidson v. St. Louis-San Francisco Ry. Co., 301 Mo. 79, 256 S.W. 169, 170[3] (banc 1923); McCormick on Evidence, § 37. The deposition testimony that Welch turned left without signal across the center line of the highway; these contradictions were for the jury to assess. The trial testimony of the defendant that Welch made that maneuver was substantial evidence to support the contributory negligence instruction.

Appellants’ principal contention is that Instruction No. 4 based on MAI 17.06 is erroneous because it assumes a controverted fact in the cause — the plaintiff intended to and did turn left. Plaintiffs contend that the first paragraph of Instruction No. 4 — that Welch “failed to signal his intention to turn” assumes the controverted fact that Welch intended to and did turn and thus violates the basic principles of instructions. Plaintiffs in reality contend that MAI 17.06 is not a viable instruction because it assumes a controverted fact and violates the comments of MAI 1.02 that where a ground of negligence consists of several elements they still must be stated in the conjunctive.

It is true that:

“The clear purpose of the new method of instructing juries, adopted by Supreme Court Rules 70.01 and 70.02, V.A.M.R., effective January 1, 1965, was to submit ultimate issues, not evidentiary details. Plaintiff, in drafting the instruction, was subject to the requirement that the instruction submit only the ultimate factual issues, be within the general scope of the pleadings, not assume issuable facts, and be understandable by a reasonably intelligent jury.” Zipp v. Gasen’s Drug Stores, Inc., 449 S.W.2d 612, 617 (Mo.1970).

While the general principle has been and is that an instruction assuming controverted facts is error, the facts of each case must be inquired into. If close scrutiny of the instruction demonstrates that it is calculated to lead the jury to believe assumed disputed facts the instruction suffers from the infirmity of the principle. Cf. Kewanee Oil Company v. Remmert-Werner, Inc., 508 S.W.2d 23, 26 (Mo.App.1974).

Plaintiffs rely on several cases to support their position that Instruction No. 4 suffers from the infirmity of assuming the controverted fact of “intending to turn” when the instruction refers to Welch’s failure to “signal his intention to turn.”

In Hawkeye-Security Ins. Co., supra, the court gave an instruction which informed the jury the verdict must be for the defendant whether or not defendant was negligent if it believed that the plaintiff’s insured failed to swerve or disregarded electric warning signals or arm signals given by defendant. The instruction was a composite of several. The submission of the “disregarded signals” element in the instruction, the court held, abdicated to the jury its essential function of declaring the law of the case by defining the facts which were for the jury’s determination. The submission was erroneous because it gave the jury a roving commission and an unlimited license to find contributory negligence on any theory of its own invention. Additionally, the court stated the “disregarded signals” submission was erroneous because it assumed as a fact that hand signals were given and did not require a finding that there was apparent danger of a collision as a predicate to the performance of some evasive action.

In Bledsoe, an action for personal injuries sustained in an airplane crash, the court gave a contributory negligence instruction requiring a verdict for the defendant if the plaintiff “failed to retract the landing gear of the airplane after it left the ground, thus decreasing the airspeed and reducing the airworthiness of said airplane “flew the airplane in too steep a climbing attitude under the conditions then and there existing, thus decreasing the airworthiness of said airplane.” The court held the instruction erroneous because each alternative assumed the fact required to be found which would have a certain result and because the alternatives do more than assume facts. “They assume that the facts required to be found would have certain definite results .” because of the word “thus”. 429 S.W.2d at 728-733.

These decisions relied upon by the appellants are not in our opinion controlling. They clearly violate the principle of assumption of controverted facts and either gave the jury a roving commission or proceeded to compel certain definite results. Bledsoe required the jury to accept as a matter of course, one controverted fact once a precedent fact was found to exist.

In the total context of this case, however, we hold that Instruction No. 4 was not prejudicially erroneous; the instruction when viewed with all the other facts did not cause confusion to the jury. The issue to be decided by the jury was whether under the testimony and the physical evidence Welch intended to and did turn left into the driveway. Counsel for both parties recognized this issue in closing arguments as outlined in the facts above. The issue of whether there was a turn or not was made clear in the argument referring to the “swearing match.” The jury was not confused as a result of this instruction. No juror could reasonably have returned a verdict for the defendant without having found that the plaintiff made and intended to make a left turn. The principal dispute was whether a left turn was made.

We believe, however, that in the future when a turn is a controverted and disputed fact, MAI 17.06 should require a finding that (1) there was a turn and (2) that there was a failure to signal an intention to turn. But under the circumstances here, the instruction was not prejudicially erroneous and the court did not err in giving it.

The plaintiffs next complain that the court refused Instructions No. 13 and 14 based on the negligence of the defendant for failure to sound his horn before he began to pass the Welch truck. The theories of these tendered submissions contradict the trial theory and evidence of the plaintiffs that their truck was struck at the rear as it proceeded straight ahead in the proper lane of travel. A plaintiff may not rest recovery on a theory which gainsays his own positive evidence. Tomlin v. Alford, 351 S.W.2d 705, 711[3, 4] (Mo.1961). Nor, on the rear-end collision recovery submitted by plaintiffs, could the failure to sound a horn have been the proximate cause of their injury. Linneman v. Freese, 362 S.W.2d 585, 587[2] (Mo.1952). There was no error in refusal of these instructions [Nos. 13 and 14].

The last point contends that Instruction No. 5 for defendant which, on the model of MAI 33.03(5), undertakes to converse causation and damages was erroneous because it misrefers to another instruction and so renders the direction meaningless. The plaintiffs made no timely objection to the submission and so contend for plain error under Rule 84.13(c). Instruction No. 5 as given directs:

“Your verdict must be for the defendant on plaintiff James Edward Welch’s claim for damages unless you believe that defendant was negligent as submitted in Instruction No. 4, and that plaintiff James Edward Welch sustained damage as a direct result thereof. [Emphasis supplied.]”

Instruction No. 4 was actually the contributory negligence submission of the defendant, the reference intended was to Instruction No. 2, the verdict-director of plaintiff Welch. The plaintiffs now say that the misreference misled the jury and the verdict resulted from that plain error. The plaintiffs have not shown such prejudice nor does the record disclose any. The issue before the jury was single, clear and simple — whether plaintiff Welch made a left turn on the highway. It was an issue definitively presented by the evidence and the arguments and one from which the jury could not have been distracted by the misre-ference in Instruction No. 5.

In the total context of this case we find no reversible error.

The judgment is affirmed.

BARDGETT and SEILER, JJ., and FINCH, Senior Judge, concur.

MORGAN, C. J., dissents in separate dissenting opinion filed.

RENDLEN, J., and ALDEN A. STOCK-ARD, Special Judge, dissent and concur with separate dissenting opinion of MORGAN, C. J.

DONNELLY, J., not sitting.

WELLIVER, J., not participating because not a member of the court when cause was submitted.

MORGAN, Chief Justice,

dissenting.

I respectfully dissent.

As recognized in the principal opinion, plaintiff (in the front vehicle) testified that “he had no intention to turn,” and that he did not leave the right side of the highway. To the contrary, defendant (in the following vehicle) testified that plaintiff did drive to the left of the center line. Thus, it would appear that whether or not plaintiff turned left was the ultimate issue as to liability and was for the jury to decide.

MAI 17.06 was not applicable to the facts of this case because said instruction “assumes” that a turn was being made. It is appropriate only in those instances where the adequacy of the signal is the ultimate issue. The instruction should have been modified to hypothesize the fact of a turn and require the jury to so find. Thereafter, and for the first time, a signal or lack thereof would become an issue for resolution.

Admittedly, the contributory negligence instruction given (No. 4) assumed that a turn was made and guided the jury toward the presence or absence of a signal. The instruction thereby failed to require resolution of the real issue. Price v. Seidler, 408 S.W.2d 815, 824 (Mo.1966); Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., 407 S.W.2d 622, 630 (Mo.App.1966); Thompson v. Gray, 415 S.W.2d 299 (Mo.App.1967).

Although defendant gave a different version as to what happened, plaintiff by the instruction given was denied any hope the jury would believe his version.

The judgment should be reversed.

      . The motion contended that the cause be transferred because (1) the court of appeals opinion required the jury to find rather than to assume a controverted fact in Instruction No. 4, (2) in so concluding violated Rules 70.01 and 70.02 and the Committee’s Comment to MAI 1.02 that where a ground of negligence consists of several elements they must be submitted conjunctively, (3) MAI 17.06 assumes that a “turn” was being made so that the instruction should be modified to hypothesize the fact of a turn by a separate clause which Instruction No. 4 does not do and (4) the opinion of the court of appeals is in conflict with prior decisions: Bledsoe v. Northside Supply and Development Co., 429 S.W.2d 727, 730 (Mo.1968); Highfill v. Brown, 320 S.W.2d 493, 496 (Mo.1959) (failing to submit the facts to base a finding that plaintiff intended to turn left); Melber v. Yourtee, 203 S.W.2d 727, 730 (Mo.1947); Day v. Mayberry, 421 S.W.2d 34, 40-41 (Mo.App.1967); Hawkeye Security Ins. Co. v. Thomas Grain Fum. Co., 407 S.W.2d 622, 630 (Mo.App.1966); and Hengelsberg v. Cushing, 51 S.W.2d 187, 189 (Mo.App.1932).

      . Mr. Welch was hospitalized a year earlier for dizziness and in August, 1972, was involved in another accident while driving a truck which turned over. No damages were sought as a result of this second accident.

      . Instruction No. 4 of course was the contributory negligence instruction — this is an obvious error; Instruction No. 2 was the verdict director on James Welch’s claim.

      . Hyatt testified that “As I got closer to the truck, and it continued to move on as we kept gaining upon the truck, I noticed that it was beginning to come to the right part of the — side of the highway toward the centerline with the front wheels like it was going to turn to the left.”

      . His exact words were that he “wasn’t” going to go to that trailer house to see “that man [Jack]” about some parts for the pickup truck at the time of the accident.

      . Appellants rely on Thomas v. Fitch, 435 S.W.2d 703 (Mo.App.1968).

      . Hyatt did testify however that at the time of the impact the front of the pickup was “[a]cross the center line.” He also stated “I could see that it was going to cross the center line and be in the lane of passing line that I was in.” He disagreed when asked “isn’t it true that no part of that pickup truck ever crossed the center line of the highway . . .

      . Appellants rely on Noce v. United Railroads, 53 Cal.App. 512, 200 P. 819 (1921); and Balzer v. Caldwell, 220 Wis. 270, 263 N.W. 705, 707-708 (1935).

      .He relies on Hawkeye-Security Ins. Co. v. Thomas Grain Fum. Co., supra; Hengelsberg v. Cushing, supra; Melber v. Yourtee, supra; and Bledsoe v. Northside Supply & Development Co., supra.

      . Respondent argues that the motion merely stated that Instruction No. 4 was improper because the instruction “erroneously assumed facts not in evidence,” . . .; respondent fails to point out in his brief however that the allegations in the motion continued by stating “to wit: that Plaintiff . . . intended to turn or was making a turn of his vehicle at the time of the collision mentioned in evidence . . . ."

      . Among other matters, Hyatt testified that (1) as he got closer to the truck after the right . rear light flickered it was beginning to go to the center line with the front wheels like it was going to turn left, (2) Welch continued in motion going to the left of the highway, (3) he could see Welch was going to cross the center line, (4) at time of impact the front of the truck was across the center line, (5) the truck slowed to 7-10 m. p. h., (6) Hyatt did not agree when asked isn’t it true that no part of the truck crossed the center line. The physical facts, as outlined above, also support the submission of the contributory negligence instruction — debris close to center line; skidmarks which come back into the eastbound lane, damage to the pickup indicates a glancing blow; the position of the vehicles after the collision; plaintiff was looking for replacement windows; debris deposited 18-20 feet west of the driveway near the center line; plaintiff knew “Jack.”

        . Respondent contends this issue is not preserved. But a fair reading of allegation 5 of the motion for new trial convinces us that this issue was sufficiently, although not clearly articulated, preserved for purposes of appeal.

      . See also Price v. Seidler, 408 S.W.2d 815, 823-824 (Mo.1966)—assumption of issuable facts were improper before MAI; they are still improper under the new method. Penberthy v. Penberthy, 505 S.W.2d 122, 130 (Mo.App.1973).

      . See the numerous decisions in Mo.Digest, Trial, <S=> No. 191(1)(6).

      . In Bledsoe, the error was not cured by the giving of an instruction that the court does not mean to assume as true any facts referred to in these instructions.

      . The instruction is not inconsistent with the decisions relied upon in plaintiffs’ motion to transfer: Highfill v. Brown, supra, failed to submit facts to base a finding that plaintiff intended to turn left; Day v. Mayberry, supra, required the inclusion in the instruction of the status of a discovered trespasser and a necessary element of recovery; Melber v. Yourtee, supra, deals with sole cause.
      Neither does the instruction MAI 17.06 violate the principle that where there are several elements of negligence they must be submitted in the conjunctive. The example given in MAI 1.02 comments is that of the humanitarian doctrine. Under § 304.019, negligence consists of turning when not safe to do so and then only after a signal.