author: MASSEY, Chief Justice.

text:
    A. H. ROEVER, Appellant, v. Tommie Leon DELANEY and Doyle Delaney, Appellees.
    No. 18142.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 18, 1979.

      Garrett, Settle & Callaway, W. Wallace Brady, Fort Worth, for appellant.
    The Firm of Larry S. Parnass, and Laurence I. Burshtyn, Irving, for appellees.
   OPINION

MASSEY, Chief Justice.

The case brought forward on appeal was a “rear-end collision case”. A large truck owned by defendant Doyle Delaney and being driven by defendant Tommie Leon Delaney collided with the rear of the pickup owned and driven by plaintiff A. H. Roever. The collision occurred on a freeway in Fort Worth not far from one of the freeway exits. A large truck ahead of Roever had come to a stop. In turn Roever stopped his pickup, and the Delaney truck ran against it.

Following trial without intervention of a jury the court rendered judgment for the defendants; and that Roever take nothing by his action. Therefrom Roever appealed.

We affirm.

There was no request for findings of fact and conclusions of law; none were filed. Under such circumstance we necessarily imply findings of fact to have been made against Roever on every issue he was obliged to establish by a preponderance of the evidence as a predicate for the desired recovery. Among these would be the damage issues. In other words Roever had the trial burden to prove and obtain findings that he did in fact sustain personal injuries as a result of the collision and/or damages to his property as a result. Of course he also had the burden to obtain a finding that Tommie Leon Delaney was guilty of one or more acts or omissions constituting a negligent tort which, furthermore, constituted a proximate cause or causes of the collision.

While the complete record brought forward on the appeal demonstrates without contradiction that Roever did sustain both personal injuries and property damage as result of the collision, the presumption is that the trial court, as the fact finder in the case, failed and refused to find any personal injury damages or any property damage to have resulted. Of this Roever has not complained by point of error.

In this case it is obvious that for the trial court to have found that Roever had failed to prove personal injuries and property damage to have resulted would have been so contrary to the greater weight and preponderance of the whole of the evidence in the case as to be clearly erroneous. The same situation is presented as would have been presented had there been a jury which failed and refused to find personal injuries and/or property damage to have resulted.

We have recently considered similar situations in instances where it was the jury which failed and refused to find damages for the plaintiff, but where on the appeal no point of error was presented raising the complaint of error because of the failure. Our holding has been that there has resulted a waiver of the error, if there was any, because of the jury’s refusal to so find, unless there is complaint on appeal. An appellant complaining about matters constituting error, even if the complaints are justified (in that reversible error was thereby actually occasioned), can gain nothing from this court unless he furthermore shows he has sustained actual harm as a consequence, and that he has not waived his right to reversal because thereof. More explicitly, we have affirmed the judgments in the cases below on the theory that the plaintiff/appellant has not been harmed by a take nothing judgment against him because of circumstances by which he is presumed to have been found to have sustained no damages; and furthermore is before the court conceding that he has sustained no damages. As a plaintiff who has sustained no damages, or is not making a complaint because of a finding of “no damages”, he would not have gained or lost anything no matter how the jury or other fact finder answered the liability issues. In other words, he is before the appellate court complaining of matters which occurred on trial, while at the same time conceding that he has suffered no harm. See Mitchell v. Chaparral Chrysler-Plymouth, 572 S.W.2d 359 (Tex.Civ.App. — Fort Worth 1978, writ ref’d n. r. e.), and Wooley v. West, 575 S.W.2d 659 (Tex.Civ.App.—Fort Worth 1978, writ ref’d n. r. e.).

While we hold that by the above explanation the judgment in the case is to be affirmed, it is furthermore one necessarily affirmed even if that was not the case.

In a rear-end collision case there is what might be visualized as a scale, at one end of which the circumstances are such that a defendant who runs his vehicle into the rear of another (which is, or has been, proceeding in the same direction) is guilty of negligence amounting to proximate cause thereof absent any presentation of the defendant in explanation of excuse or justification. Moving toward the other, end of the scale one reaches a point where the circumstances are such that, as a predicate for the plaintiff’s recovery, he must obtain fact findings, by a preponderance of the evidence, that some act or omission by the defendant was negligence amounting to a proximate cause of the collision. This situation may in some cases result whether or not the defendant has presented explanation and excuse or justification by his own evidence. In the instant case neither defendant, either the principal or the agent, testified to anything material other than the fact of agency. Even that testimony was elicited by attorney for Roever when defendants were placed on the witness stand by him as adverse witnesses. Neither of the Delaneys was asked a single question by their own attorney.

Without going into the cases, we take occasion to observe that the circumstances of the instant occasion — where the parties were driving in the same direction on a freeway-type roadway and not approaching any point where there was any signal-light or stop or yield sign, etc., — were such that Roever was obliged to obtain required fact findings of the Delaney negligence upon a preponderance of the evidence in order for him to be entitled to any judgment. In other words the circumstances were not such that the driver of the following vehicle would be negligent as a matter of law.

It is ordinarily true, as it was in this case, that the persons in the vehicle struck by the following vehicle know nothing about the actions or omissions on the part of the driver of the striking vehicle. Evidence on these usually comes wholly from the defendant himself. In the instant case defendant Tommie Leon Delaney was present and testified, but nothing was elicited from him relative to any act of omission or commission. No witness testified other than plaintiff and defendants.

It is true that during the course of Roe-ver’s testimony on direct examination he stated that at the scene of the collision he overheard something to the effect that prior to the time of the collision Delaney’s truck was being driven at a speed of 40 miles per hour. Though attempted to be elicited from him that it was the fact Roever never did attribute the statement to Delaney. Even had Roever done so the question would have remained for the fact finder to decide whether such speed was negligence.

Of the acts and omissions charged in Roe-ver’s allegations of negligence by Delaney those material in the circumstances could only have been the Delaney failure to keep a proper lookout, failure to control the movements of his truck by slowing down or even stopping the same or turning it either to the right or left so as not to collide with the Roever pickup, or in following too closely behind the pickup when Roever slowed it down and brought it to a stop, or in driving at too rapid speed.

It is obvious from the remarks of the judge of the trial court immediately following the close of the case that the judgment rendered, as then announced, was because of the court’s opinion that there was no evidence in support of Roever’s allegations on negligence. We agree. Even if in this we err it would not mean that there would be any error in the judgment. The Delaneys are entitled to additional benefit by law in those tests applicable to the Roe-ver appeal. There being no finding of fact to which there might be reference we must view the judgment as affirmatively supported by failure and refusal of the court, as fact finder, to believe that, by the preponderance of the evidence, Delaney had been guilty of any negligence, or in any event by negligence which amounted to proximate cause of the collision. On this we hold there was no failure or refusal to so find relative to negligence which was so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous.

Even if it should be that we err in the opinion stated in the paragraph preceding there is further reason why Roever cannot be entitled to reversal even if he would be entitled thereto despite the failure to find on the damages. We will attempt to demonstrate.

We shall assume that in this case it is reasonable to conclude that the driver of the Delaney truck either failed to keep a proper lookout, or contrariwise was going too fast, following too closely, or otherwise negligent in failing to apply brakes, turn, etc., and that the negative findings against Roever by the trial court, in the one case or the other, was against the great weight and preponderance of the evidence. Upon such a hypothesis we nevertheless are rendered helpless by the evidence to order reversal of the judgment because we would be wholly unable to determine which of the (implied) findings of the trial court should be condemned.

Where such a situation exists, so that a Court of Civil Appeals, though considering some one or more of several findings — or refusal to find — to be contrary to the greater weight and preponderance of the evidence, yet cannot identify which one or ones of the number involved are proper to be thus condemned, the proper judgment of the court is one of affirmance. That, in any event and even if issues of negligence (amounting to proximate cause) were raised by the evidence in this case, is the situation which has resulted. We cannot segregate and condemn any particular finding of implied refusal to find.

On the matters immediately proceeding see the three opinions by which was established the law in such respect. Hunt v. Parrish, 324 S.W.2d 887 (Tex.Civ.App.—Waco 1959 no writ). There, upon the conclusion that there was error by the jury either in its refusal to find defendant to have been following too closely or in failure to keep a proper lookout was so contrary to the greater weight of the evidence as to be clearly wrong, the Court of Civil Appeals had reversed the trial court’s take nothing judgment and reversed for another trial: followed by the Supreme Court’s opinion in Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960), in which it was held that the Court of Civil Appeals was obliged to determine which finding it was — i. e. either the negligent act or the omission — that was so contrary to the greater weight and preponderance of the evidence as to be clearly wrong and to require reversal — and remanded the case to that court to do so; followed by Hunt v. Parrish, 334 S.W.2d 505 (Tex.Civ.App.—Waco 1960, no writ), in which the Waco court held that since it could not determine which of the findings was so contrary to the greater weight, etc., the only thing possible to be done was to affirm the judgment of the trial court. See also Pederson v. Scott, 366 S.W.2d 260 (Tex.Civ.App.—Fort Worth, 1963, writ ref’d n. r. e.), where there were more issues than in the Hunt v. Parrish case, all of which the jury refused to find amounted to negligence. There this court, concluding that one or more, but not all, the findings were so contrary to the greater weight, etc. of the evidence, and concluding further that which it was — or were — something unable to be determined, stated that because of that inability of determination our judgment of affirmance would be compelled. However, in Pederson we went further and found that the judgment was to be affirmed because the jury had furthermore found that the acts and omissions to act charged against the defendant occurred when the defendant was acting in an emergency, pursuant to which he had acted as an ordinarily prudent person in the exercise of ordinary care in the same or similar circumstances. The approval of the Supreme Court, by its “n. r. e.” stamp, actually meant that the Supreme Court held the application for writ of error by the party deeming himself aggrieved by our decision presented no error which required reversal; though the Supreme Court was not satisfied that our opinion in all respects correctly declared the law. Thus the approval by the Supreme Court could have been on either of our theories stated in the opinion to require our affirmance of the trial court.

There was another case in which the foregoing principle was considered. Therein was stated that the necessity, as predicate for reversal in such a situation, is that the Court of Civil Appeals must make a finding on the answers to a specific issue that such answer was contrary to the greater weight and preponderance of the evidence. Ramirez v. Garcia, 437 S.W.2d 363 (Tex.Civ. App. — Corpus Christi 1969, no writ).

Judgment is affirmed.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Paula F. CHAGAS, Appellant, v. WEST BROS., INC., Appellee.
    No. 18139.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 18, 1979.
    Rehearing Denied Nov. 15, 1979.

      Ernest May, Fort Worth, for appellant.
    Simon & Simon, Mike Liles and Richard C. Bruse, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from the take nothing judgment rendered against the plaintiff in a suit to recover damages from personal injuries allegedly sustained in an automobile collision. The judgment was based on a jury verdict which the plaintiff claims is against the great weight and preponderance of the evidence. Plaintiff also contends she was prejudiced by impeachment on collateral matters, and the admission of irrelevant medical records of unrelated illness and injury.

We affirm.

Paula Chagas was involved in an intersec-tional auto collision with the auto driven by Samuel Essmeier in downtown Dallas on February 9,1971. Mrs. Chagas alleged that Essmeier struck her causing injury to her neck, back, and an eye. She sued West Brothers, Inc., alleging that Essmeier was driving the vehicle in the course of his agency for it. The case was tried to a jury. The jury failed to find that Essmeier was negligent. The jury found that Mrs. Cha-gas failed to keep a proper lookout and that her failure was a proximate cause of the occurrence in question. It failed to find that Mrs. Chagas was injured as a result of the occurrence in question. Based on the jury’s verdict the trial court rendered judgment that Mrs. Chagas take nothing.

On appeal Mrs. Chagas complains about the judgment through three points of error. By her first point she contends she was prejudiced by improper impeachment concerning collateral matters. The record reflects that Mrs. Chagas was thoroughly impeached throughout the trial by effective cross-examination. The impeachment of which she complains relates to cross-examination concerning her involvement in several lawsuits unrelated to the present action. Mrs. Chagas claims she was prejudiced because the trial court permitted cross-examination over her objection which resulted in her being portrayed to the jury as a quarrelsome and litigious individual.

West Brothers contends that the trial court did not abuse its discretion in allowing the cross-examination in this area because Mrs. Chagas opened the door by her testimony. The record reflects that during direct examination Mrs. Chagas testified that she had been involved in some litigation over some real property in Arkansas. She claimed that the incapacity caused by the injuries she sustained in the collision resulted in her inability to properly manage the property. She contended that this inability caused this litigation which resulted in damage to her. The record further reflects that on cross-examination Mrs. Cha-gas was asked whether she was familiar with court procedure. She answered that she was not too well familiar as she had been in court very little.

While we agree with West Brothers that Mrs. Chagas’s testimony certainly opened the door for cross-examination concerning the Arkansas litigation, we do not agree that it opened the door for questioning concerning every lawsuit involving her. West Brothers further contends that the cross-examination was proper impeachment of her credibility because it purported to show that Mrs. Chagas had been in court more than just a few times.

Although we recognize that the trial court has some discretion in this area, Mrs. Chagas has correctly stated the general rule that it is error to impeach a witness concerning collateral or immaterial matters. 1 C. McCormick & R. Ray, Texas Evidence, § 683, (2d ed. 1956). The test of admissibility of evidence which contradicts the testimony of a witness is whether the fact which contradicts the testimony would have been admissible for any purpose independent of mere contradiction. We cannot find any purpose for which the evidence of litigation unrelated to either the present action or the Arkansas suit would be admissible. Therefore, we conclude that Mrs. Chagas was erroneously impeached on collateral matters.

We must next consider whether this error was harmful under Tex.R.Civ.P. 434. The record reflects that Mrs. Chagas was properly impeached concerning prior and subsequent injuries and claims. We conclude that although the improper impeachment was obviously harmful to some degree, it was not calculated to cause, nor probably did cause the rendition of an improper verdict. Therefore, we hold that the error is harmless.

[3] Mrs. Chagas next complains that the trial court erred in admitting evidence consisting of medical records which she alleges were of illnesses and injuries unrelated to the injuries she alleged were caused by the auto accident. After reviewing the records we conclude that they relate to injuries sustained by her both before and after the accident made the basis for this suit. It is proper to allow a thorough cross-examination concerning prior and subsequent injuries to show that the present physical condition of a party is not the result of the accident made the basis for the suit. Bonham v. Baldeschwiler, 533 S.W.2d 144 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).' We conclude that the evidence was properly admitted and overrule Mrs. Cha-gas’s second point of error.

Finally Mrs. Chagas complains that all of the answers to the special issues submitted to the jury are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In her brief Mrs. Chagas directs our attention to the jury’s failure to find any injury resulting from this occurrence. The record reflects that there is ample evidence from which the jury could have found an injury if they had chosen to believe Mrs. Chagas. However, it is well settled that it is within the jury’s province to believe or not to believe all or any part of the testimony of a witness.

In addition there was evidence that Mrs. Chagas did not seek any medical attention immediately after the accident. The record reflects that she drove from the scene of the collision in downtown Dallas to her home in Fort Worth. She then called her son and an attorney and posed for pictures in her car to depict the damage thereto. There was also evidence that on the day of the accident Mrs. Chagas and another woman inspected a house Mrs. Chagas was going to buy to see how much cleaning would be required. This inspection occurred after the accident. Thus we conclude that the jury’s failure to find injury was not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Since we have found that the jury’s failure to find injury is not against the great weight and preponderance of evidence, we need not consider Mrs. Chagas’s contentions that the other answers to special issues are against the great weight and preponderance of evidence. We note that each of the other issues complained of relate to liability. Where, as here, there is no injury and thus no damages, errors relating to liability would be at most harmless.

By a cross-point of error West Brothers complains the trial court erred in submitting the special issues in this case because even if the answers had been favorable to Mrs. Chagas, such a verdict would not have supported judgment for her because there was no evidence of agency or scope of employment between Essmeier and West Brothers. After reviewing the record we conclude that there was evidence which established that Essmeier was an employee of West Brothers and was driving the vehicle in the scope of his employment at the time of the occurrence in question. We overrule the cross-point of error.

We have duly considered each point of error and cross-point of error presented in complaint of the trial court’s judgment. We decide that no error requiring reversal of the judgment has been shown. Each of appellant’s points of error is overruled. Ap-pellee’s cross-point of error is overruled.

The judgment is affirmed.


author: MOORE, Justice.

text:
    Lon Neff “Pat” BEETS, Appellant, v. MALAKOFF INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 1288.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 25, 1979.
    Rehearing Denied Nov. 15, 1979.
    Larry R. Daves, Daves, McCabe & Crews, Tyler, for appellant.
    Glenn A. Sodd, Corsicana, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. Appellee, Malakoff Independent School District, sued appellant, Lon Neff “Pat” Beets, for $507.73 in delinquent school taxes and obtained a summary judgment for that amount. The principal issue on appeal is whether appellant’s land was validly annexed into the Malakoff Independent School District. Prior to 1940, appellant’s land was located in the Clear Creek School District. In 1940, the Clear Creek School District was consolidated into the Mallard Prairie Common School District. On October 11, 1954, the Mallard Prairie Common School District was consolidated into the Eustace Independent School District. On October 14, 1954, the Henderson County School Board met to consider a petition for detachment and annexation signed by a majority of the qualified voters in the old Clear Creek School District, requesting the detachment from the Eustace Independent School District and the annexation into the Malakoff Independent School District. On October 21, 1954, the School Board issued an order annexing all property in the former Clear Creek School District into the Malakoff Independent School District, thereby placing appellant’s land into that district.

Appellee,' in support of its motion for summary judgment, attached the affidavit of the tax assessor-collector and submitted with it a certified copy of the delinquent tax rolls of the Malakoff Independent School District concerning the real property of appellant. Appellant did not allege or offer any summary judgment proof attempting to establish that he did not own the property described in the tax rolls, or that the taxes had been paid, or that they were in excess of the limit allowed by law— the only defenses permitted by statute. Tex.Rev.Civ.Stat.Ann. art. 7329 (Vernon 1960). Instead, appellant argued in the trial court and in this court that a genuine issue of fact existed as to whether appellant’s property is located in the Malakoff Independent School District. Appellant, in his answer to appellee’s motion for summary judgment, admits that his land was situated within the boundary line of the Clear Creek School District, and that the Clear Creek district was later annexed into the Eustace Independent School District. Appellant, however, challenges the annexation of the old Clear Creek district into the Malakoff Independent School District. Appellant relies primarily upon the fact that the petition, as well as the order annexing the Clear Creek district into the Malakoff district, is missing from the official minutes of the Henderson County School Board.

The law is well settled in Texas that in a suit for delinquent taxes by a school district, a prima facie case is established by the introduction into evidence of the delinquent tax rolls. Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132 (Tex.1970); Sanford Independent School District v. Sanford, 159 Tex. 155, 317 S.W.2d 188 (1958). In the absence of any summary judgment proof to the contrary, the school district will have discharged its burden of establishing as a matter of law that there was no genuine issue of fact upon any essential element of its cause of action for the taxes due. Loomis v. City of Dallas, 472 S.W.2d 809, 810-11 (Tex.Civ.App.-Dallas 1971, writ ref’d n. r. e.). Thus, the question presented to us is whether appellant, through the medium of his affidavit in opposition to the school district’s motion for summary judgment, has presented sufficient evidence to create questions of fact concerning the taxable situs of the property within the Malakoff district. Brown v. City of Dallas, 508 S.W.2d 134, 135 (Tex.Civ.App.-Dallas 1974, no writ).

Although the petition, as well as the order annexing the old Clear Creek School District, has been torn out and removed from the official minutes, there is abundant evidence showing that the Clear Creek district in which appellant’s property is situated has been annexed to the Malakoff district. Affidavits, exhibits, pleadings, and depositions submitted in support of appel-lee’s motion for summary judgment establish conclusively and as a matter of law that appellant’s property is located within the Malakoff district and that appellant has failed to pay the taxes due to the school district. Consequently, the school district has discharged its burden of establishing as a matter of law that there was no genuine issue of fact upon any essential element of its cause of action.

Even if the annexation of the Clear Creek School District to the Malakoff Independent School District could in some manner be construed as defective, any such defect has been cured by subsequent validating acts. In 1955 the Texas Legislature enacted Article 2815g-50. The act provides in part:

“All acts of the county boards of trustees of any and all counties in rearranging, consolidating, grouping, annexing, changing, detaching, and attaching of territory, or subdividing any and all such School Districts, or increasing or decreasing the area thereof, or abolishing School Districts in any school district of any kind, or in creating new Districts out of parts of existing Districts or otherwise, and all acts of the governing body of any such municipalities in annexing territories to such municipally controlled school districts, are hereby in all things validated.
The boundary lines of any and all such School Districts are hereby in all things validated.”

The legislature has continued to enact similar curative statutes since 1955, the most recent being Article 2815g-61, effective May 11,1971. These acts are very broad in their scope, and the curative effects have been held to validate the actions of the county school board of trustees even where such actions were found to be utterly void when taken. Marfa Independent School District v. Wood, 135 Tex. 223, 141 S.W.2d 590, 592 (1940); Lyford Independent School District v. Willamar Independent School District, 34 S.W.2d 854, 855-56 (Tex.Com.App.1931, judgmt adopted). Consequently, if any defect exists in the annexation of the Clear Creek School District to the Malakoff Independent School District, such defect has. been cured by the validating statutes.

Judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    R. B. BUTLER, INC. et al., Appellants, v. Fred HENRY et ux., Appellees.
    No. 6080.
    Court of Civil Appeals of Texas, Waco.
    October 26, 1979.
    Rehearing Denied Nov. 15, 1979.

      Royce R. Till and Russell H. McMains, Fulbright & Jaworski, Houston, Steven C. Barkley, Evans & Moses, Beaumont, for appellants.
    Mac L. Bennett, Jr., Bennett & Bennett, Normangee, John M. O’Quinn and Ernest H. Cannon, Riddle, Murphrey, O’Quinn & Cannon, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

Appellees Henry and wife, plaintiffs, sued appellants R. B. Butler, Inc. and McMahan Construction Company, Inc., defendants, seeking recovery for the destruction of their home and its contents that resulted from a fire on April 25, 1978. Plaintiffs alleged defendants dozed brush from a road right-of-way, piled it near their home, set it on fire when the wind was blowing from the direction of the brush pile toward their home, that the wind blew the fire onto the roof of their home burning it down, and that their home and all its contents were a complete loss.

It was established that Butler had a contract with the State of Texas to widen and pave Farm Road 1453 which ran near plaintiffs’ home; that McMahan agreed with Butler to doze off the right-of-way, stack and burn the brush for Butler; that McMa-han dozed, stacked and burned a pile of brush 306 feet from plaintiffs’ home; that plaintiffs’ home caught fire and burned; and that the house and its contents were a total loss.

Trial was to a jury which found: 1) through 8) McMahan was negligent in where and how it set and tended the brush fire, which was a proximate cause of plaintiffs’ loss.
9), 10) and 11) Butler failed to furnish proper protection to the adjacent landowners, which was negligence, and a proximate cause of plaintiffs’ loss.
12) Butler’s negligence caused 50% of the occurrence and McMahan’s negligence caused 50% of the occurrence.
13) Plaintiffs’ damage for loss of the house was $43,000.
14) Plaintiffs’ damage for loss of furniture and possessions was $38,000.

The trial court rendered joint and several judgment for plaintiffs against McMahan and Butler on the verdict for $84,765.12 ($81,000. plus prejudgment interest), and further decreed that Butler and McMahan have each established a right to require the other to pay one-half of the judgment, and that if either one pays more than one-half it shall have the right to recover from the other such excess payment.

Both McMahan and Butler appeal.

McMahan's Appeal

McMahan appeals on 3 points asserting there is no evidence and/or insufficient evidence to support the jury’s finding of $38,-000. in answer to Issue 14 (plaintiffs’ damage for loss of furniture and possessions).

Appellees have filed motion to dismiss McMahan’s appeal on the ground that McMahan’s appeal bond was not filed within 30 days after judgment as required by Rule 356 TRCP.

Judgment was rendered by the trial court on November 15, 1978; McMahan filed no motion for new trial; and filed its appeal bond on February 12, 1979.

Rule 356 TRCP requires appeal bond to be filed “within thirty days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law”.

Such requirement is mandatory and jurisdictional. Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315; Bellmead State Bank v. Campbell, Tex.Civ.App. (Waco) nwh, 386 S.W.2d 205; Wilson v. Worley, Tex.Civ.App. (Waco) nre, 562 S.W.2d 22.

And the fact that Butler filed motion for new trial and timely filed its appeal bond cannot help McMahan.

An appellant must base his appeal on his own actions and cannot rely on the acts of other parties to extend the time limits within which he must file his appeal bond. Olivares v. Service Finance Corp., Tex.Civ.App. (San Antonio) nwh, 513 S.W.2d 946; Angelina County v. McFarland, Tex., 374 S.W.2d 417; Perez v. Los Fresnos State Bank, Tex.Civ.App. (Corpus Christi) nwh, 512 S.W.2d 796; South Padre Development Co., Inc. v. Realty Growth Investors, Tex.Civ.App. (Corpus Christi) nre, 543 S.W.2d 880.

Even if we did have jurisdiction we would be compelled to overrule McMa-han’s points because McMahan is attacking the very judgment it requested the trial court to render. McMahan filed motion for judgment reciting the jury’s verdict and praying the trial court render judgment jointly and severally against itself and Butler for $81,000. plus interest at 9% from April 25, 1978. A party who induces the court to render a certain judgment cannot later complain of such judgment. Rogge v. Gulf Oil Corp., Tex.Civ.App. (Waco) nre, 351 S.W.2d 565; Smith v. Chipley, Com.App., Adopted S.Ct., 118 Tex. 415, 16 S.W.2d 269; American Surety Co. v. Whitehead, Com.App., 45 S.W.2d 958.

Butler’s Appeal

Points 1 through 8 contend the trial court erred in overruling Butler’s motion to disregard the jury’s answers to Issues 9, 10 and 11 because Butler was not legally responsible for guarding against McMahan’s negligence; and that there is no evidence and/or insufficient evidence to support the jury’s answers to Issues 9, 10 and 11.

Such issues found Butler failed to furnish proper protection to the property of adjacent landowners; that such was negligence; and a proximate cause of plaintiffs’ loss.

Butler asserts it was not legally responsible for guarding against McMahan’s negligence because McMahan was an independent contractor. There is evidence Butler retained the right to control the details of the work including where the brush should be burned, and retained the right to fire McMahan employees on the job if it wanted to. Such is evidence that McMahan was an employee of Butler and not a subcontractor. Newspapers, Inc. v. Love, Tex., 380 S.W.2d 582. Butler requested no issue as to whether McMahan was a subcontractor, nor did Butler object to the absence of such issue in the trial court’s charge.

It is not conclusively established that McMahan was a subcontractor, thus, the issue is deemed found by the trial court in support of the judgment. Rule 279 TRCP.

Thus, Butler had the duty to protect adjacent landowners, Restatement of Torts, Second, Sections 300, 302.

Butler contracted with the State to do work on the Farm Road near plaintiffs’ house. McMahan was employed by Butler to clear the right-of-way and burn the brush. Lockhart, who was McMahan’s superintendent, testified about a meeting with Howard, the superintendent for Butler, and that he told him that McMahan would not be responsible for fire getting out. The brush was burned by McMahan’s employees with Butler’s knowledge and pursuant to its agreement. No equipment was furnished to extinguish the fire if it got away from them. No water was made available. Mrs. Wager, the neighbor who first spotted the fire on plaintiffs’ house, testified “if we had had some water we could have put it out”. Witness Denson, who conducted an investigation of the damage to plaintiffs’ property, testified that if water had been available the house and its contents could have been saved. The brush fire was started 306 feet from plaintiffs’ house.

Points 1 through 8 are overruled.

Point 9 asserts the trial court erred in rendering judgment for contribution in favor of McMahan and against Butler, and in refusing to grant Butler’s requested judgment for indemnity against McMahan, because McMahan breached a duty to Butler in failing, to safely perform the contract work.

The judgment for plaintiffs was joint and several against both McMahan and Butler; and further decreed the two defendants each established a right to require the other to pay one-half of the judgment, and that if either pays more than one-half it should have the right to recover from the other such excess payment.

McMahan was Butler’s employee. McMahan was negligent in burning the brush which burned plaintiffs’ house. Butler was negligent in failing to furnish proper protection to adjacent landowners. Both McMahan’s and Butler’s negligence were proximate causes of plaintiffs’ loss.

In most indemnity cases, one tort-feasor has breached a duty which he owed to his co-tortfeasor and to the injured plaintiff. Although both tortfeasors are liable to the injured plaintiff, as between themselves, the blameless should be allowed indemnity. In order to determine whether the loss should be shifted from one tort-feasor to another the proper approach is to consider the one seeking indemnity as though he were plaintiff suing the other in tort, and then determine whether such a one as plaintiff, though guilty of a wrong against a third person, is nevertheless entitled to recover against his co-tortfeasor. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; General Motors Corp. v. Simmons, Tex., 558 S.W.2d 855.

McMahan in negligently burning the brush and burning plaintiffs’ house violated a duty to plaintiffs and to Butler. Butler in not providing fire protection and water to McMahan violated a duty to plaintiffs and to McMahan.

Moreover, VATS 2212a would appear to require the disposition here made. Point 9 is overruled.

The appeal of McMahan is dismissed; and the judgment is AFFIRMED.

AFFIRMED.


text:
    Eugene Walter HAAS, Appellant, v. Annie DODSON et al., Appellees. Annie DODSON et al., Appellants, v. Eugene Walter HAAS, Appellee.
    No. 6098.
    Court of Civil Appeals, of Texas, Waco.
    Oct. 11, 1979.

      Robert M. Mahaney, Mahaney & Higgins, James E. Hallman, Hallman & Allen, Cle-burne, for appellant Eugene Walter Haas.
    Meto Miteff, Miteff, Carter, Finney & Williams, Fort Worth, for appellees Annie Dodson, et al.
   OPINION

McDONALD, Chief Justice.

Eugene Walter Haas, husband of Lennie Mae Gunter Haas, filed application in the County Court of Johnson County, to be appointed temporary and permanent guardian of the person and estate of Lennie Mae Gunter, an incompetent. Annie Dodson, Ethel Cooke, Mrs. E. I. de Cordova, Jr., Mrs. Katie Lee Hegar, Mrs. Louise Davis and Jack Russell (sisters and brother of the incompetent) filed objections to jurisdiction and venue of the Johnson County Court (and objections to the appointment of Haas as guardian) alleging that Mrs. Haas lives in Tarrant County, has no estate in Johnson County, and that her principal estate lies in Tarrant County.

After hearing the trial court overruled Annie Dodson’s (et al.) objections to jurisdiction and venue and rendered judgment appointing Haas guardian of the person of the incompetent, guardian of her estate located in Tarrant County, and appointed W. T. Hanes guardian of the estate of the incompetent located in Dallas County.

Annie Dodson, et al., appeals contending the trial court erred in retaining venue and jurisdiction because the ward was not a resident of Johnson County, and her principal estate was not situated in Johnson County.

Mrs. Lennie Mae Gunter Haas was a 63 year old widow living in Fort Worth when she married Eugene Walter Haas in March 1978. Haas moved into her home in Fort Worth (Tarrant County). She was living in Fort Worth with Mr. Haas and his son by a prior marriage on December 5, 1978 when she went to visit her sister in Throckmorton, where she suffered a heart attack and stroke on December 6,1978, and has been bedfast and in a coma since such time. Mrs. Haas was in Fort Worth nursing home at time of trial. All the evidence is that Mrs. Haas resides in Tarrant County, and that she was residing there when the application on guardianship in this case was filed. All property owned by Mrs. Haas is located in Tarrant County or in Dallas County. She owns no property in Johnson County.

Texas Probate Code Section 7 provides:

“Venue for the Appointment of Guardians * * * (b) For the person and estate, or either, of an incompetent, in the County where such person resides, or where his principal estate is situated”.

Although dealing with a guardianship venue statute predecessor to the present Probate Code guardianship venue statute, the Court in Weeks v. De Young, Tex.Civ.App. (Galveston) er. refused, 290 S.W. 852 holds such a venue statute mandatory and jurisdictional. See also: Munson v. Newson, S.Ct., 9 Tex. 109; Gibson v. Dennis, Tex.Civ.App. (Texarkana) er. dism’d, 90 S.W.2d 319; Bagwell v. McCombs, Tex.Civ.App. (Dallas) nwh, 31 S.W.2d 835; Doyle v. Sorrells, Tex.Civ.App. (San Antonio) nre, 297 S.W.2d 233.

Doyle, supra, holds it was the duty of the trial court to transfer the case to Tarrant or Dallas County, and refusal to do so constitutes reversible error.

Dodson, et al.’s, contentions are sustained.

Dodson and Haas both contend on appeal the trial court erred in appointing more than one guardian of the estate of Lennie Mae Gunter Haas.

Section 116 of the Probate Code expressly provides (with exceptions not applicable here) “only one person can be appointed as guardian of the person or estate”.

The trial court’s appointment of Haas as guardian of the estate in Tarrant County and Hanes as guardian of the estate in Dallas County is void. McAdams v. Wilson, Tex.Civ.App. (Amarillo) er. ref’d, 164 S.W. 59.

Such contentions are sustained.

The judgment of the trial court is reversed and vacated, and the cause remanded with instruction to transfer same to Tar-rant County or to Dallas County.

REVERSED & REMANDED.


author: CLAYTON, Justice.

text:
    Paul TUSSEY, Jr., Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Oct. 9, 1979.
    Jack Emory Farley, Public Advocate, M. Gail Robinson, Asst. Public Advocate, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for respondent.
   CLAYTON, Justice.

A spool of insulated copper wire valued at approximately $1500 disappeared from the Armco Steel Corporation in Boyd County. The spool was later discovered in the vicinity of an Armco warehouse but off of the company’s grounds. The wire had been badly burned with most of the insulation destroyed. Armco officials, with the cooperation of the local police, organized a “stake out.” The next day, movant and another man were observed picking up junk in the area of the burnt wire. When the two men began loading the wire onto their truck they were arrested.

Movant was indicted for knowingly receiving stolen property under KRS 514.110. At trial, a witness for the Commonwealth testified that the wire no longer had any value for electrical purposes and that it would have value only as scrap. A defense witness testified that the present value of the wire was approximately $50-$60.

Movant was subsequently convicted of knowingly receiving stolen property with a value of $100 or more (a felony) and sentenced to two years in prison. Movant appealed and the Court of Appeals affirmed the conviction holding that the value of the property received by movant was to be determined at the date of the theft rather than on the date he received it. We granted discretionary review.

We are persuaded by movant’s contention that the value of the stolen property on the date the offender receives it is the proper date for determining the severity of the violation. We conclude that this position conforms not only to existing law in Kentucky (Clatos v. Commonwealth, 298 Ky. 851, 184 S.W.2d 125 (1944)) but also to a logical interpretation of the statute. The act of receiving stolen property is a criminal offense independent of the criminal act of theft. The value of the property stolen determines the culpability of the thief. If a person steals property worth less than $100 he commits a misdemeanor; more than $100, a felony. See, e. g., KRS 514.030. Applying this rationale to the separate offense of receiving stolen property results in a similar conclusion: a person who receives stolen property worth less than $100 has committed a misdemeanor; more than $100, a felony.

It is possible to envision various circumstances which result in the substantial depreciation of the value of an item of stolen property. To hold an individual responsible for an act unrelated to his or her own criminal liability would contradict all theories of fairness in modern justice.

The decision of the Court of Appeals is reversed, the judgment of the Boyd Circuit Court is affirmed to the extent that it convicts the defendant of receiving stolen goods of a value less than $100, and the case is remanded to the trial court with directions to conduct a new trial only for the purpose of assessing and imposing a misdemeanor penalty.

All concur.

      . KRS 514.110 reads in part: “. . Receiving stolen property is a Class A misdemeanor unless the value of the property is $100 or more, in which case it is a Class D felony.”

      . “The crime of knowingly receiving stolen property is a substantive crime, complete in itself, and is not, under the statute, an accesso-rial act to a larceny . . ..” Ellison v. Commonwealth, 190 Ky. 305, 227 S.W. 458, 460 (1921). See also Logan v. Commonwealth, Ky., 319 S.W.2d 465 (1958).


author: PALMORE, Chief Justice.

text:
    Hon. Kelley ASBURY, Judge, Boyd Circuit Court, Division One, Movant, v. Elizabeth BEERBOWER and William Beerbower, Respondents.
    Supreme Court of Kentucky.
    Oct. 30, 1979.
    Stanley R. Hogg, Ashland, for movant.
    Robert L. Woolery, II, Ashland, for respondents.
   PALMORE, Chief Justice.

James Murphy, Jr., brought suit against Elizabeth Beerbower and her husband for damages resulting from an automobile accident. Murphy sought to discover, by deposition, the contents of a statement allegedly given by Mrs. Beerbower to her liability insurance carrier after Murphy had retained counsel but before counsel had been retained for Mrs. Beerbower and before the filing of the lawsuit. After the trial court had decided the point in Murphy’s favor and had entered an order to that effect, the Beerbowers applied to the Court of Appeals for a writ of prohibition to prevent the trial judge from permitting the discovery. The Court of Appeals granted relief upon the ground that the communication by Mrs. Beerbower to her insurance company fell within the scope of the attorney-client privilege, citing KRS 421.210(4); CR 26.02; Hollien v. Kaye, 194 Misc. 821, 87 N.Y.S.2d 782 (1949); People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964); and Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45 (1973). The respondent trial judge thereupon appealed to this court as a matter.of right. Cf. Const. Sec. 115.

Mrs. Beerbower’s insurance policy required her to cooperate with the insurance company and obligated the company to provide counsel for her. The prevailing view, though something less than an avalanche of authority, is that under these circumstances “a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him and which is covered by the policy, is a privileged communication, as being between attorney and client . . .”81 Am.Jur.2d, Witnesses, Sec. 193. See also annotation, “Privilege of communications or reports between liability or indemnity insurer and insured,” 22 A.L.R.2d 659 (1952).

“The insured is ordinarily not represented by counsel of his own choosing either at the time of making the communication or during the course of litigation. Under such circumstances we believe that the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured.” People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964). We think this conclusion makes good sense. When a person has had an automobile accident that may result in litigation he would normally confide in counsel. If, however, he is insured, he has paid an insurance company to exercise that choice for him. He should not be penalized for his prudence in that respect.

The decision of the Court of Appeals is affirmed.

All concur.


author: COOPER, Judge.

text:
    Billy Joe HELTON and wife, Carol Delores Helton, and Billy Joe Helton, Guardian of Melissa Dawn Helton, an infant, Appellants, v. FOREST PARK BAPTIST CHURCH, and Edgar Mills, Lucian Thornton, Phil Dye, Jimmy Felts and Marvin Easley, Trustees of the Forest Park Baptist Church, Appellees.
    Court of Appeals of Kentucky.
    July 13, 1979.
    Discretionary Review Denied Nov. 27, 1979.

      Stephen B. Catron, Reynolds, Catron & Johnston, Bowling Green, for appellants.
    Joe B. Campbell, Campbell & Crandall, Reginald L. Ayers, Bell, Orr, Ayers & Moore, Bowling Green, for appellees.
    Before COOPER, HOWERTON and GANT, JJ.
   COOPER, Judge.

This is an appeal from a summary judgment in the Warren Circuit Court wherein the trial court sustained the defendants’ motion for same as a matter of law.

It appears that the facts in this case are generally undisputed.

On February 1, 1976, Melissa Dawn Hel-ton, the two and one-half year old daughter of the appellants, Billy Joe Helton and Carol Helton, sustained a severe injury to her right eye as a result of an accident that occurred at the Forest Park Baptist Church.

The evidence establishes that the infant-appellant was injured while on the appel-lees’ premises. She and ten to twelve other children in her age category were occupying a nursery room at the Church while their parents attended religious services. They were being supervised by two adults whom appellants, Billy Joe Helton and Carol Hel-ton, described as mature, responsible people. The nursery and all toys contained therein had been carefully examined by the nursery room coordinator, Marlene Wallace, a few days before this unfortunate incident. The toys in the nursery were in good working order and safe. All of the toys in the nursery were designed for use by children in that age group. None of the parties or witnesses knew of any dangerous or unsafe conditions existing in the nursery. The infant-appellant’s parents testified that they did not observe any dangerous or unsafe condition or toy in the nursery when they delivered the infant on the morning of the accident. All of the attendants and nursery supervisors were volunteers. Usually, the volunteers consisted of parents whose children were in the nursery. Both appellants, Billy Joe and Carol Helton, had previously served as volunteer supervisors in this nursery.

It is undisputed that no one saw this accident occur. There are no witnesses who know: 1) what object or instrumentality injured the infant-appellant; 2) how long it had been in the nursery; 3) where it came from; or 4) how it found its way into the nursery. All of the toys, furniture and fixtures were examined after the incident, and no one could find any object which could have caused such an injury. Melissa Helton was first observed lying on the floor immediately after the injury occurred. Neither of the supervisors knew whether she had been struck in the eye by an object while standing or whether she fell on some object on the floor. No one saw her fall and there were no toys or other dangerous conditions in the immediate vicinity of where she was lying when she was first observed.

In essence, the only thing established by the evidence is that an accident occurred on the appellees’ premises which resulted in an injury to the infant-appellant’s eye.

The appellants contend that their theory of recovery is based upon the doctrine of res ipsa loquitur, and not upon the theory of ordinary negligence.

The trial court concluded that the doctrine of res ipsa loquitur was not applicable and that the appellees were entitled to a summary judgment as a matter of law.

Two issues are presented to this Court as follows:

Whether the trial court erred in refusing to apply the doctrine of res ipsa loquitur to the allegations and evidence presented. Whether the trial court erred in sustaining the appellees’ motion for summary judgment and in overruling the appellants’ motion to vacate the findings of fact, conclusions of law and summary judgment.

To invoke the doctrine of res ipsa loquitur, three essential elements must be met: 1) the instrumentality must be under the control or management of the appellees; 2) the circumstances, according to common knowledge and experience, must create a clear inference that the accident would not have happened if the defendant had not been negligent; and 3) the infant-appellant’s injury must have resulted from the accident. See Commonwealth, Dept. of Highways v. Burchett, Ky., 419 S.W.2d 577 (1967). In the present case, there is no evidence as to what the instrumentality was that caused the injury, and there is no evidence that it was under the control or management of the appellees. There is no evidence to establish, or from which it can be inferred, that the appellees or any of the appellees’ volunteer servants caused or created such condition or that they knew or should have known of the existence of such condition, object or instrumentality. Secondly, the circumstances testified to do not create any clear inference that the accident would not have happened if the appel-lees had not been negligent. Cf. Herrin’s Adm’x v. Jackson, Ky., 265 S.W.2d 775 (1954). Under Kentucky law, the doctrine of res ipsa loquitur is inapplicable where the instrumentality producing the injury or damage is unknown or is not in the exclusive control of the defendant. Hall v. E. I. Dupont DeNemours and Company, 142 F.Supp. 737 (E.D.Ky.1956). Res ipsa loqui-tur applies only where the thing shown speaks of negligence of the defendant and not merely the occurrence of an accident. Davies Flying Service, Inc. v. United States, 114 F.Supp. 776 (W.D.Ky.1953), aff’d, 216 F.2d 104 (6th Cir. 1954). The doctrine does not apply where the existence of the negligent acts is not more reasonably probable and where the proof of occurrence, without more, leaves the matter resting only to conjecture. Schroerlucke v. McDaniel Funeral Home, Inc., Ky., 291 S.W.2d 6 (1956).

Whether the infant Melissa Dawn Helton was a licensee or invitee is of little significance since the duties owed to her are essentially the same. See Grimes v. Hettinger, Ky.App., 566 S.W.2d 769 (1978). Negligence or a violation of those duties may not, however, be presumed but must be established by the evidence. Mulberry v. Howard, Ky., 457 S.W.2d 827 (1970). There is no evidence in this case which establishes negligence or from which a jury could reasonably infer negligence. Cf. McAtee v. Holland Furnace Co., Ky., 252 S.W.2d 427 (1952); Darnell v. Beard, Ky., 296 S.W.2d 743 (1956).

A jury could only speculate, surmise or guess as to how Melissa’s injury occurred, and for this reason the case is one to be decided by the court as a matter of law. Hollon v. Greyhound Corp., Ky., 272 S.W.2d 329 (1954).

The appellee-Church was not an insurer of the infant’s safety. See Hannin v. Driver, Ky., 394 S.W.2d 750 (1965); Sands v. Sears, Roebuck and Co., 438 F.2d 655 (6th Cir. 1971).

In view of the facts and law in this case, we would conclude that the trial court did not err in refusing to apply the doctrine of res ipsa loquitur and granting a summary judgment for the appellees.

The judgment is affirmed.

All concur.


text:
    Sherry L. WHITE, Appellant, v. Patricia PILES, Appellee.
    Court of Appeals of Kentucky.
    Aug. 10, 1979.
    Rehearing Denied Nov. 9, 1979.

      John S. Kelley, Kelley & Heaton, Bards-town, for appellant.
    William R. Gentry, Jr., Bardstown, for appellee.
    Before COOPER, GANT and HOWER-TON, JJ.
   COOPER, Judge.

On January 12, 1975, plaintiff-appellant, Sherry L. White, while a passenger in an automobile driven by Richard Molyneaux, was involved in a collision with an automobile driven by defendant-appellee, Patricia J. Piles. Appellant suffered a shattered knee and a fractured knee joint. Subsequently, she filed suit naming Molyneaux and Piles as defendants. Because Moly-neaux was uninsured, the Western Casualty and Surety Company was named as a defendant, since the policy it had provided White contained an uninsured motorist clause.

The case proceeded to trial where a verdict was directed imposing sole liability against Ms. Piles. Both Molyneaux and the insurance company were dismissed from the action at that point. The question of damages was submitted to the jury which returned a verdict for combined damages in White’s favor against Piles in the amount of $24,312.00. Motion was made and a new trial was granted on the grounds that: 1) the existence of insurance had been improperly injected into the trial, and 2) that the verdict was excessive. A new trial was held solely on the question of damages. The jury awarded only $10,000.00 in damages at the second trial. During the second trial, counsel for defendant was permitted — over objection — to read into evidence the deposition of Dr. George McCroeklin who had been present as a witness and who had testified earlier at the second trial. A motion for new trial was denied. It is from judgment entered upon the second verdict that this appeal is taken.

Appellant complains that: 1) the trial court erred in the first instance by granting a new trial, and 2) in refusing to grant a new trial after the second trial.

I

One of the two reasons given by the trial court for granting a new trial was the improper injection of the existence of liability insurance into the case in the final argument before the jury. Appellant responds that the fact of insurance was already before the jury. This contention is not without arguable merit. An uninsured motorist, Molyneaux, was involved in this case. Under the regime of Wheeler v. Creekmore, Ky., 469 S.W.2d 559 (1971), it is proper in such cases for counsel for the insurance company providing the uninsured motorist’s coverage to be identified. Otherwise, the jury would be left to speculate as to the interest represented by the attorney who, although participating in the trial, had no apparent connection with any of the parties. See Wheeler, supra at p. 563.

In accordance with Wheeler, counsel for the insurance company, in the presence of the jury, identified himself and his interest, which was the exposure to liability of the uninsured motorist Molyneaux. Logic would dictate that Ms. Piles, who was not identified as an uninsured motorist, would therefore be insured. We do not know what the jury actually thought at the point when Molyneaux and the insurance company were dismissed, but there was clearly sufficient information before it to support a conclusion that only an insured motorist was left in the case. But, whatever the jury’s state of mind or knowledge prior to the closing argument, counsel for appellant’s statements at that time served to dispose of any remaining doubt or ignorance on the part of the jury as to Piles’ insured status.

No objection was made to the opening statements concerning insurance. Indeed, we find nothing objectionable there given the requirements of Wheeler. Objections were entered to two comments uttered by counsel for appellant in closing argument in which he stated to the effect that the judge had simplified matters for the jury by throwing out the “only uninsured motorist in here,” (emphasis ours) and in his rejoinder to a comment made by counsel for appellee in his closing argument concerning appellee’s financial status and doubtful ability to pay any judgment which might be rendered against her. In response to opposing counsel’s statement, counsel for appellant accused his counterpart of “just trying to pull a red herring over in front of you.” In this latter statement we find no prejudicial error. A defendant’s ability or inability to pay a judgment is no more relevant to the issue of liability than is the fact of insurance. A case should be tried on the merits without reference to the wealth or poverty of the parties. Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106, 41 S.W.2d 661 (1931). By injecting the issue of his client’s ability to pay into his closing argument, counsel for appellee opened the door for the comment in response by counsel for appellant. Under such circumstances the comment was not prejudicial. Cf. Aker v. Smith, Ky., 290 S.W.2d 496 (1956).

The “uninsured motorist” comment made by counsel for appellant may not be disposed of so easily. Granting that the jury had sufficient information before it from which it could have concluded that appellee was insured, counsel’s comment erased any doubt in that regard and positively emphasized the existence of insurance. It was unnecessary and we cannot say the record shows clearly that no prejudice resulted. For that reason we must uphold the trial court’s ruling granting a new trial. Cf. Finch v. Conley, Ky., 422 S.W.2d 128 (1967).

In upholding the trial court, we do not disregard the teaching of Wheeler, supra. Rather, we interpret it narrowly in light of the long-standing rule in Kentucky prohibiting the mention of insurance even indirectly in jury cases. See, e. g., Randle v. Mitchell, 283 Ky. 501, 142 S.W.2d 124 (1940). The rule excluding any mention of insurance is founded on the premises that it is irrelevant to the issue of whether insureds tend to be less careful than unin-sureds and, more importantly, that knowledge of insurance coverage might cause the jury to impose liability without regard to fault. See Star Furniture Co. v. Holland, 273 Ky. 617, 117 S.W.2d 603 (1938); Lawson, Ky. Evidence Law Handbook § 2.40 p. 29 (1976). The prohibition against mentioning insurance is so embedded in the law of Kentucky that we feel constrained to interpret Wheeler narrowly as permitting only such mention of insurance as is necessary to effectuate its principal purpose, which is to clear up any confusion in the minds of the jury as to what interests respective counsel represent. Counsel’s comment did not fall within this exception and there is no clear showing it was not prejudicial. The trial judge’s grant of a new trial was therefore proper.

We do not reach the question of whether the award of damages was excessive, except to note in passing our reservation as to whether the damage award was so large that it struck our mind at first blush as being superinduced by passion or prejudice — or knowledge of insurance. However, a comparison of the amounts of the two verdicts does furnish ground for some interesting speculation in this regard.

II

Appellant’s second point on appeal is that the trial court erred during the second trial by permitting Dr. McCrocklin’s deposition to be read into evidence during appellee’s case, even though the doctor had testified earlier at the second trial, but at the time the deposition was read had been excused as a witness. Appellee argues that the deposition was admissible for impeachment purposes. While that assertion is correct, the proper method for using a deposition to impeach was not followed in this instance.

6 W. Clay, Kentucky Practice, CR 32.01, Comment 4 (3rd ed. 1974) states:

Before the deposition may be used to contradict or impeach the witness’ testimony, a foundation must be laid as required by Rule 43.08. Id. at p. 506.

Although we have located no Kentucky case expressly rejecting the method used to impeach at trial below, the rule as stated by Clay, supra, squares with the plain language of CR 43.08 which states in relevant part:

Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with, opportunity to explain it. .

The language of the rule would clearly encompass a deposition, and we have heard no reason advanced here which would justify the creation of an exception. To the contrary, we think that where a witness has made a prior sworn statement which is arguably contradictory, he is especially entitled to have that fact pointed out to him and to be afforded an opportunity to explain the inconsistency.

In reviewing the record, we find that Dr. McCrocklin’s deposition substantially contradicts his testimony from the witness stand. Since there are material conflicts which most surely affect the weight and credibility of the witness’s testimony, it cannot be said that the error was merely harmless.

It gives us no pleasure to order a third trial in this case, but we must since the requirements of CR 43.08 were not followed and we cannot say with reasonable certainty the error was harmless.

This case is reversed and remanded for a new trial.

All concur.


author: GANT, Judge.

text:
    Charles H. FOSTER, Appellant, v. Wanell Baize FOSTER, Appellee. Wanell Baize FOSTER, Cross-Appellant, v. Charles H. FOSTER, Cross-Appellee.
    Court of Appeals of Kentucky.
    Aug. 24, 1979.
    Rehearing Denied Nov. 2, 1979.

      Freeman B. Blackwell, Louisville, for appellant and cross-appellee.
    George B. Walton, Louisville, for appellee and cross-appellant.
    Before GANT, COOPER and HOWER-TON, JJ.
   GANT, Judge.

The parties hereto divorced after 30 years of marriage, the lower court awarding one-half of the marital property to each spouse, providing for maintenance for the wife for five years, and further granting the wife one-third of the future benefits received by the husband in his pension Upon retirement. This appeal and cross-appeal are primarily concerned with the division of the pension benefits.

The husband, 58 years of age, has worked for American Synthetic Rubber Co. for 19 years. His pension plan provides monthly payments upon retirement based on $10.00 multiplied by the number of years of continuous service. Although contribution to the fund was made solely by the employer, the plan had been amended to comply with the requirements of the Employee Retirement Income Security Act (ERISA), and was fully vested under the provisions of that Act and the plan itself because of the length of service and the age of the husband. The plan further provided for disability benefits and for reduced monthly benefits upon early termination of employment.

There is a conflict among the states which have faced the question of whether a noncontributory retirement or pension plan is marital or nonmarital property. See Phillipson v. Board of Admin. Pub. Emp. Ret. Sys., 3 Cal.3d 32, 89 Cal.Rptr. 61, 473 P.2d 765 (1970); In re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (1974); In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), all holding said funds marital property and subject to division; In re Marriage of Ellis, 538 P.2d 1347 (Colo.App.1975), and Ellis v. Ellis, 552 P.2d 506 (Colo.1976), both holding said plans nonmarital. We feel that the direction of the Kentucky courts has been set by Beggs v. Beggs, Ky., 479 S.W.2d 598 (1972). Although that case concerned a contributory fund, in contrast to the noncontributory fund in the instant case, the vested rights, not the contribution of the teacher, were determinative. Even though this pension plan was noncontributory, it was a part of the consideration earned by the husband during marriage. In addition, and most importantly, it was vested so that the husband was entitled to receive monthly payments upon termination for any cause, with only the amount to be fixed.

It is therefore our opinion, under these circumstances in which the husband had received the benefits of this plan for 19 years, and his rights had become vested, all of which occurred during the marriage, his retirement plan is marital property, subject to proper division.

The wife, as cross/appellant, urges that the 50/50 ratio used for other property should be utilized in this division, asking for a lump-sum payment of the present value or 50% of the value at retirement. The actuary in this case placed the present value of the pension at $21,181.90. However, the husband is not entitled, at any time, to draw a lump-sum payment, and his rights and benefits are prospective only. We feel that the lower court was correct in making the rights of the spouse equally prospective, and do not consider the ratio of two-thirds/one-third inequitable. The wife is not entitled to share in any pension benefits earned after divorce and before retirement, and it would clearly be possible for this pension to increase by $70.00 a month before retirement. We therefore find no abuse of discretion by the lower court.

The claim of the wife/cross-appellant that the court did not include the bank accounts in the division of property is without merit.

The judgment is affirmed.

All concur.