author: SPURLOCK, Justice.

text:
    Neda Dolores MASSEY, Appellant, v. AZTEC LIFE INSURANCE COMPANY, Appellee.
    No. 17676.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 23, 1976.

      George G. Barber, Arlington, for appellant.
    Rivera & Ritter, and Robert F. Ritter, San Antonio, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a summary judgment granted in favor of the insurance company in a suit by a policyholder for medical expenses incurred.

We reverse and remand.

The insurance company had issued a master policy providing accident and health insurance coverage to the Texas Independent Automobile Dealers Association, Inc. Insurance Trust Fund, its members and their employees.

Plaintiff went to work for one of its insured members on May 1, 1972. By payroll deductions her employer, during the month of May, 1972, deducted from plaintiff’s pay the premium for her coverage for the month of June, 1972. The insurance company received this premium and admits coverage for that month. It issued a certificate of insurance covering plaintiff and her dependent, effective June 1,1972. The premium for July coverage was paid to the insurance company, partly by payroll deductions and in part by check from plaintiff to her employer.

On June 26, 1972, plaintiff worked 6 hours and left her employment early, advising her employer that she was ill. On July 3, 1972, she advised her employer that because of illness she would not be able to continue her employment and officially terminated her employment on that date. She and her dependent daughter were both insured. Both incurred medical expenses in July, 1972, and plaintiff incurred additional medical expenses in October, 1972. Because of her illness plaintiff was totally disabled from June 26, 1972, until March 19, 1973, when she went to work for another employer.

The pertinent terms of the insurance policy (Policy No. GA&H 1004) here involved are as follows:

Part VII entitled, “Grace Period”, provides: “. . .a grace period of thirty-one days will be granted for the payment of any premium after the first premium, during which grace period the Policy shall continue in force.”

Part III entitled, “Termination of Individual Insurance”, provides: “The insurance of the Insured Person shall immediately terminate on the earliest of the following dates ... (3) the date the insured employee leaves or is dismissed from the employment of the Employer . . . .”

The Major Medical Policy Rider, paragraph C, provides as follows: A benefit period terminates on “. . . the date on which the Insured Person’s insurance is terminated, except as provided in the coverage after termination of insurance provision of this Rider.”

Another section of the Major Medical Rider provides:

“PRE-EXISTING CONDITIONS
“If an injury or sickness causing loss shall have occurred prior to the effective date of an Insured Person’s insurance under this Rider such injury or sickness shall nevertheless be covered under this Rider (a) after a period of three consecutive months ending while the person is insured hereunder during which no expenses for the injury or sickness have been incurred, or (b) after an insured employee has been insured and continuously at full time active work for the Employer for at least six months, or (e) after an Insured Person has been insured hereunder for twelve consecutive months, whichever is earliest, and then only those Eligible Expenses incurred after the injury or sickness becomes covered will be considered for benefits. .
“COVERAGE AFTER TERMINATION OF INSURANCE
“A. If the Major Medical Insurance of any Insured Person terminates due to failure to pay premiums when due or at the request of the Employer, the Major Medical coverage for the Insured Person whose insurance so terminates will be extended as described below:
“1. If such Insured Person is wholly and continuously disabled and under the care of a Physician, for reasons other than pregnancy, at the time of such termination of insurance, coverage for such Insured Person pertaining solely to the illness which caused such disability will be extended, to the extent such coverage would have been provided had termination not taken place, during such disability while under such care, but not beyond 180 days following the date such termination of insurance occurs.
“B. If the Major Medical Insurance of any Insured Person terminates for any reason except (1) his Individual Maximum Benefit has become payable, or (2) this policy terminates due to failure to pay premiums when due or at the request of the Employer, the Major Medical coverage for the Insured Person whose insurance so terminates will be extended as described below.
“1. If such Insured Person is wholly and continuously disabled and under the care of a Physician, for reason other than pregnancy, at the time of such termination of insurance, coverage for such Insured Person pertaining solely to the illness which caused such disability will, to the extent such coverage would have been provided had termination not taken place, be extended during such disability while under such care, but not beyond the end of the calendar year next following that in which such termination occurs.” (Emphasis ours.)

Plaintiff, in her brief, attacks each and every ground upon which the trial court could have rendered a summary judgment under the record in this case.

Plaintiff assigns only one point of error, that being: “The trial court erred in granting appellee’s motion for summary judgment for the reason that the pleadings, exhibits, answers to interrogatories, admissions of fact, and deposition in this record establish that there is a genuine issue of material fact.” In plaintiff’s statement, argument and authorities, she contends that the defendant, as movant in the summary judgment proceedings, had failed to meet its burden of proof in that it failed to show there was no genuine issue as to any material fact and that the defendant was entitled to a judgment as a matter of law.

The insurance company objected to appellant’s first point of error on the grounds that it was overly general, vague, and multifarious, and therefore did not comply with Rule 418, T. R. C. P.

In view of the holding in Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.Sup., 1970) we are required to consider this point of error.

This objection is overruled based on the above cited authority and for the additional reason that it is now settled that even if the point urged is too general to comply with Rule 418, T. R. C. P., if the statement, argument, and authorities under the point do point out the particular things that are claimed to constitute reversible error, the appellate court will consider them. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

The insurance company, as movant, had the burden of complying with the requirements of Rule 166-A, T. R. C. P., which provides in part that a summary judgment shall be granted if it is shown “. there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

It is settled that the question on appeal and in the trial court is not whether the summary judgment proof raises fact issues with reference to essential elements of the cause of action, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup., 1970); Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.Sup., 1972).

The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against it. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, supra; Parrott v. Garcia, 436 S.W.2d 897 (Tex.Sup., 1969); Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.Sup., 1965).

The first point involved is whether or not as a matter of law the policy lapsed, or coverage ceased, solely by reason of plaintiff terminating her employment on July 3, 1972, and therefore her medical expenses incurred in July, 1972, were incurred after the policy lapsed, even though her premium was paid for coverage during July and even though the grace period provision extended coverage at least through that month.

Except for the effect of her deposition testimony that she was disabled from June 26, 1972, to March 19, 1973, she would have no coverage after July 3, 1972, because she terminated her employment on that date.

The mere fact that premiums were paid and received by the insurance company covering a period of time extending beyond the termination of employment under the terms of this policy does not have the legal effect of extending the policy coverage, unless the coverage is extended by other provisions of the policy. De Pauw v. Aetna Life Ins. Co., 268 S.W.2d 734 (Texarkana, Tex.Civ.App., 1954, no writ hist.); Mutual L. l. Co. of N. Y. v. Presbyterian Hosp. of Dallas, 503 S.W.2d 870 (Dallas, Tex.Civ.App., 1973, ref., n. r. e.).'

Section B(l) of “Coverage After Termination” of the Major Medical Rider, quoted herein, provides that if the insurance of any insured person terminates for any reason except the person has received all his benefits or failed to pay his premiums when due then the coverage for the insured person will be extended if such person, at the time of such termination, is wholly and continuously disabled. This language limits the extended coverage for such insured person pertaining solely to the illness which caused such disability and with a time limitation of not beyond the end of the calendar year following the termination, which in this case would be December, 1972.

The insurance company then had the burden of proving that neither the plaintiff nor her daughter had an injury or sickness causing the loss which occurred prior to June 1, 1972, and that at the time plaintiff terminated her employment she was not wholly and continuously disabled and that, if she was, the illness for which medical expenses were incurred was not the same illness which caused such disability.

The burden the insurance company had here is expressed in Rule 166-A, quoted above.

Plaintiff testified in her deposition to facts indicating that the insurance was extended because of her disability and that it was not pre-existing. The insurance company contends that the appellate court cannot consider her disability as having the effect of extending coverage because this contention is raised for the first time on appeal.

Ordinarily, if the record shows an amendment of pleadings would render mov-ant’s position untenable, motion should be denied. In Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956) it is stated: “The trial court will normally look to the pleadings to determine the issues that may exist in the case, but when the depositions, admissions or affidavits disclose facts which show that an amendment to the pleadings of the opposite party will render the position of the moving party insupportable under the substantive law it cannot be said that the latter has established his right to judgment as a matter of law.” See also “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.Sup., 1972).

This fact issue concerning disability and extended coverage was raised when the insurance company took plaintiff’s deposition, which deposition was relied upon by the insurance company as a part of its summary judgment proof. We hold that the movant failed to meet its burden of proof on this issue.

The plaintiff next urges that the movant failed to meet its burden of proof that plaintiff was not covered because she suffered a pre-existing illness and therefore was excluded from coverage because of the “pre-existing” clause quoted herein. Plaintiff urges that the summary judgment proof in this case discloses a fact issue was raised on this issue and plaintiff was not precluded from a recovery for medical expenses as a matter of law.

We sustain this contention.

On this issue the insurance company relied on plaintiffs testimony contained in her deposition in which she testified she had had her tubes tied in September, 1971; had intermittent pain in her side since then; and was hospitalized on July 18, 1972. She then testified that the doctor told her that she was being hospitalized to find out why she was having pain in her side and the doctor told her that she had some sort of female genital disorder; that she might at sometime in the future need surgery but he had rather try something else first; a hysterectomy was done October 3, 1972; she terminated her job because of nervousness and her doctor told her that he was of the opinion that the nervousness was because of the job related pressure.

Ordinarily, the question of whether a disability or illness is pre-existing as it is applied to exclusionary provisions of an insurance policy is a question of fact for the jury. American Life and Accident Insurance Co. v. Smith, 380 S.W.2d 36 (Tyler, Tex.Civ.App., 1964, no writ hist.); Combined Insurance Company of America v. Thompson, 380 S.W.2d 142 (Amarillo, Tex.Civ.App., 1964, no writ hist.).

The summary judgment evidence upon which the insurance company relies on this point is both hearsay and opinion testimony, it being what the doctor told her as being his opinion.

In Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961) that court held that only admissible testimony having probative force is to be considered and this rules out summary judgment proof based on hearsay. See also Crain v. Davis, 417 S.W.2d 53 (Tex.Sup., 1967).

Opinion testimony of an expert witness is not binding upon the trier of facts and will therefore not support a summary judgment. Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup., 1968).

This contention of plaintiff is sustained.

The insurance company contends that plaintiff is estopped from claiming any benefit under the policy because the insurance company refunded to her former employer, after she terminated her employment, the insurance premium for the month of July.

Plaintiff, by way of deposition, testified that she did not know such refund had been made. She had not received the refund and was not aware of it.

“It is an indispensable requisite that the party sought to be estopped had knowledge of the material facts at the time of the act or omission claimed to constitute the estop-pel. Therefore, the defendant is not es-topped where the evidence shows that he did not mislead or deceive the plaintiff knowingly, intentionally, wilfully, or culpably.” 22 Tex.Jur.2d 676, “Estoppel”, Sec. 12, “Knowledge on part of party estopped”.

The insurance company, in answer to interrogatories, stated: it was notified by her employer that she had terminated her employment on June 26,1972; in the month of July the insurance company accepted the premium for July; the insurance company admitted that it had timely and duly received notice of the claim and proof of loss; this suit was filed February 14, 1973; the defendant answered March 15, 1973, and filed its amended answer on August 22, 1973, alleging that plaintiff was estopped from claiming any benefit under the policy because she had accepted the benefit of a refund of the July premium made to her former employer; on December 17, 1974, plaintiff served interrogatories on defendant and on January 13, 1975, in answer to interrogatory No. 17, the insurance company admitted that the premium for July, 1972, which it received in July, 1972, was refunded to plaintiff’s former employer on September 13, 1973, three weeks after it had filed its amended answer in this case.

It is our opinion, under these facts, that plaintiff was not estopped, as a matter of law, from maintaining this suit because of said refund about which she had no knowledge; and thus the insurance company failed to meet its burden of proof.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    SYRING-WORKMAN, INC., and American National Fire Insurance Company, Appellants, v. Joseph H. R. COLBERT, Appellee.
    No. 5522.
    Court of Civil Appeals of Texas, Waco.
    Jan. 23, 1976.
    Rehearings Denied Feb. 19, 1976.
    Kendall, Randle, Finch & Osborn, Terrence Kendall, Austin, for appellants.
    Stayton, Maloney, Hearne & Babb, William M. Knolle, Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Syring-Workman, Inc., and-American National Fire Insurance Company from judgment against them in favor of Joseph H. R. Colbert for $13,742.43.

The case arose out of a construction contract to remodel and renovate a 3-story office building in Austin, Texas. Syring-Workman was the general contractor; Colbert was the owner; and the Insurance Company was surety on the contractor’s performance bond.

Syring-Workman as plaintiff sued Colbert as defendant alleging plaintiff as contractor and defendant as owner, executed a written contract on January 3, 1973 whereby plaintiff would remodel defendant’s office building for costs plus 10%; that plaintiff was due $171,796.40 less $99,491.73 which had been paid, leaving a balance of $72,304.67; that defendant refuses to pay such balance of $72,304.67 due under such contract; prayed judgment for $72,304.67; and alternatively for the reasonable worth of such services rendered.

Defendant answered that the written contract provided the maximum cost of the project was not to exceed $120,000; that he had paid such maximum cost and was not liable further to plaintiff. Defendant then as cross plaintiff sued Syring-Workman and its performance bondsmen as cross defendants for damages, for not completing the 2nd and 3rd floors, for increased interest on his loan; and for loss of rentals.

Trial was to a jury pertinent findings of which are partially summarized as follows:

1) “Do you find from a preponderance of the evidence that Workman and Colbert, at the time they signed the contract on January 3,1973, did not agree that the provision, ‘The Approximate. Maximum Cost shall be $120,000.’ contained in Article 6 of the contract, meant that the contemplated remodeling and renovation of the Heierman Building under the contract would be done for a maximum cost, including the Contractor’s fee, of $120,000.? “Answer: They did agree that the work would be done for a maximum cost of $120,000, including the Contractor’s fee.”
2) The costs necessarily incurred in the proper performance of the work furnished by Syring-Workman under the January 3, 1973 contract, including a 10% Contractor’s fee was $140,651.36.
3) Colbert and Workman did contemplate partitioning and finishing the 2nd and 3rd floors.
4) $23,260. was the reasonable and necessary cost in 1973 to partition and finish the 2nd and 3rd floors.
5) $5,101.92 is the reasonable value of “extras furnished by Syring-Work-man.”
6) Colbert paid $6,905.12 to 3rd parties to complete the project as contemplated by the January 3, 1973 contract.
7) Workman contemplated or should have contemplated that if he failed to complete the contract by September 3, 1973, Colbert would lose rental from the 2nd and 3rd floors.
8) $9,187.50 is the value of such rental.

The trial court rendered judgment on the verdict; holding the contract provided for a maximum cost to Colbert of $120,000; and awarded Colbert $13,742.43 against cross defendants. (The court added the extras of $5,101.92 to the $120,000. maximum contract price, then subtracted the $99,491.75 paid by Colbert, the $6,905.12 Colbert paid to 3rd parties, the $23,260. necessary to complete the 2nd and 3rd floors; and the $9,187.50 loss of rentals).

Syring-Workman and the Insurance Company appeal on 7 points contending:

1) Since under the written agreement no maximum cost of the proposed work was agreed to, but only a provision that the “approximate maximum” cost should be $120,000. it was error for the trial court to submit Issue 1, asking the jury if that provision “meant that the contemplated remodeling and renovation would be done for a maximum of $120,000.”, over appellants’ objection that the issue assumes to vary the terms of a written contract, which neither party alleged was ambiguous.
2) The trial court erred in refusing to grant Syring-Workman’s Motion for Judgment Notwithstanding the Verdict; on the undisputed facts, judgment in its favor should be rendered for the amounts billed and not challenged, less the amounts paid.
3) Alternatively the trial court erred in refusing to enter judgment for Sy-ring-Workman for the amount of the costs necessarily incurred in performance of the work less the amounts previously paid to Syring-Workman.

Syring-Workman is a general contractor; Colbert is a lawyer who purchased a 100-year old 3-story building in downtown Austin, and decided to have it remodeled and renovated so that he could occupy the 1st floor as his office and rent the 2nd and 3rd floors to others. Colbert employed an architect and met with Workman in October, 1972, explaining how he wanted the remodeling done. Workman said he could do the job for $120,000. and went to work tearing out partitions and removing debris and other work necessary before actual remodeling could begin. On January 3,1973, Syring-Workman and Colbert signed a written contract which provides that Syring-Workman will remodel and renovate the office building “according to plans and specifications to be prepared” by architect Wade; that the job be completed on or before September 3,1973; that the contractor be reimbursed for costs of the work paid by the contractor plus 10%. The contract was on a printed form which had the words “The maximum cost to the owner, including the cost of the work, and the contractor’s fee is guaranteed not to exceed $ .” The foregoing was deleted by Colbert’s attorney who prepared the contract, and the following substituted therefor: “The approximate maximum cost shall be $120,-000.”

Workman continued to make the building ready after January 3, 1973. The architect did not furnish plans for the 1st floor until April and has never furnished plans for the 2nd and 3rd floors. There is evidence that Workman “understood” what he was to do, and Workman testified if he had had plans and specifications in January he could have finished by September 3rd. There is evidence that Colbert considered the contract to an absolute maximum cost of $120,000; that Workman did not so consider it; and architect Wade testified the contract was a guideline: to Colbert not to require a job to cost over $120,000., to Wade not to design a job to cost over $120,000., and to Workman to keep construction costs under $120,000.

There is evidence that some $10,000. more was required by the architect for the air conditioning than was envisioned; that a more expensive elevator was required by the architect than was envisioned; as well as other items. There is evidence that in April, 1973, when only some $13,000. had been expended Colbert knew the job would cost much more than $120,000, but did nothing to stop the project. After Colbert had paid $99,491.73 to Workman he refused to pay more and Workman stopped the job.

The 1st floor was finished as was most of the other work except partitioning and completing the 2nd and 3rd floors. Colbert had received a $120,000. loan initially, and paid the $99,491.73 out of such as well as the interest on the loan. Colbert in December, 1973, tried to borrow additional money to continue the project.

The contract in plain words of easy understanding provides: “The Approximate Maximum Cost shall be $120,000.” There is no way that this could mean that the maximum cost was $120,000, and no more. Clearly “approximately” contemplates the possibility of a reasonable variance between the stated figure and the final cost. Norton v. Menard Lumber Company, CCA (San Antonio), NWH, 523 S.W.2d 791. Parol evidence cannot contradict the clear terms of the written contract. Hubaeek v. Ennis State Bank, S.Ct., 317 S.W.2d 30.

Point 1 is sustained. The trial court erred in submitting Issue 1, and the judgment must be reversed.

The interest of justice requires that the cause be remanded for a new trial on the theory that the parties agreed to an “approximate maximum cost of $120,000.” plus additional work authorized by defendant. The amount of variance from the $120,000. would undoubtedly be affected by the evidence recited, if believed by the fact finder.

Moreover from the record as a whole we believe a remand in the interest of justice. Scott v. Liebman, S.Ct., 404 S.W.2d 288; Adams v. Herd, CCA (Waco) NWH, 526 S.W.2d 295.

Reversed and remanded.


author: ROBINSON, Justice.

text:
    Oscar CARSON, Appellant, v. Gaylon BRYAN, dba Bryan Trucking Company, Appellee.
    No. 8554.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 28, 1976.

      Culton, Morgan, Britain & White, W. F. Countiss, Amarillo, for appellant.
    Lovell, Lyle & Renfer, Michael P. Met-calf, Dumas, for appellee.
   ROBINSON, Justice.

The trial court rendered judgment for plaintiff for the difference between the before and after value of plaintiff’s truck and for “loss of business” which a jury found resulted when plaintiff Gaylon Bryan’s Kenworth truck, driven by his employee Gavino Rodriquez, collided with the rear of defendant Oscar Carson’s bobtail truck, driven by defendant’s employee Willard May. Defendant Carson appeals challenging the measure of damages and the legal and factual sufficiency of the evidence to support jury findings regarding negligence. We modify the judgment to eliminate the recovery for loss of business and affirm the judgment as modified.

The evidence shows that defendant’s driver was driving slowly on a two-lane highway, intending to turn left off the highway at an intersection. Plaintiff’s driver was approaching from the rear, intending to pass defendant’s vehicle on the right. The combined width of the right lane of the highway and the shoulder was sufficient to accommodate the two trucks running in the same direction. Plaintiff’s driver testified that defendant’s truck moved to the left so that its left wheels were across the center line as it approached the intersection, but that it turned back in front of him when it was too late for him to avoid a collision. He stated that he locked his brakes and swerved to the right. The left front of plaintiff’s cab collided with the right rear of defendant’s truck. Defendant’s driver testified that he intended to turn left and signaled but that he did not cross the center line. He stated that he could not turn because he saw plaintiff’s truck coming close and fast and that he could not have turned left without being run over.

The jury found that defendant’s driver May was negligent in failing to keep a proper lookout, in not completing the left turn, and in turning to the right when the vehicle driven by plaintiff’s driver was overtaking and about to pass his vehicle on the right. The jury failed to find plaintiff’s driver negligent with respect to lookout, the manner of approaching defendant’s vehicle, the act of attempting to pass on the right, the time of application of his brakes, or the reduction of his speed.

Defendant’s driver, May, testified that he watched the approach of plaintiff’s truck and there is no evidence to the contrary. Thus, there is no evidence to support the jury finding that he failed to keep a proper lookout. Agnew v. Kelley, 464 S.W.2d 717, 719 (Tex.Civ.App.—Fort Worth 1971, no writ). Nevertheless, the court’s determination of liability is supported by the other jury findings. Rodriquez, plaintiff’s driver, testified to facts supporting the jury findings of negligence on the issues relating to the negligence of May and rebutting May’s testimony concerning Rodriquez’s negligence. The testimony of the highway patrolman who did not see the accident but investigated it later corroborates in part Rodriquez’s testimony. We find that the jury findings of negligence on the part of May, except for the lookout finding, are supported by some evidence and after considering all of the evidence, including that opposed to the jury findings, conclude that those findings are supported by sufficient evidence and that those failing to find negligence on the part of Rodriquez are not against the great weight and preponderance of the evidence.

We next consider defendant’s contention that the trial court erred in rendering judgment for damages including “loss of business.”

Where one is entitled to judgment for harm to a chattel, not amounting to total destruction, he may recover (1) the difference between the value of the chattel before the harm and the value after the harm or (2) at his election, the reasonable cost of repair where feasible with due allowance for any difference between the original value and the value after repairs and the loss of use of the chattel during the time for making repairs or the period of time repairs could have been made with reasonable diligence. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950); Chicago, R. I. & G. Ry. Co. v. Zumwalt, 239 S.W. 912 (Tex.Comm’n App.1922, jdgmt. adopted). But when the chattel is totally destroyed, the measure of damage is the difference in market value immediately before and immediately after the injury, and no additional recovery can be had for use of the chattel while it is being replaced. Export Insurance Company v. Herrera, 426 S.W .2d 895 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.); Cogbill v. Martin, 308 S.W .2d 269 (Tex.Civ.App.—Waco 1957, no writ); Kansas City Southeran Railway Co. v. Frederick, 276 S.W.2d 332 (Tex.Civ.App. — Beaumont 1955, writ ref’d n. r. e.), and City of Canadian v. Guthrie, 87 S.W.2d 316 (Tex.Civ.App.—Amarillo 1932, no writ).

In answers to special issues, the jury in the case before us found that the market value of the truck was $8,000 before the collision and $3,500 after the collision. No issue was requested or submitted concerning cost of repairs. Plaintiff, having elected to recover the difference between the values before and after the collision, could not recover for the loss of use of the vehicle during the time reasonably necessary for making repairs.

Further, in the case before us all of the evidence shows that plaintiff’s truck was a total loss for which no recovery can be had while the chattel is being replaced. Plaintiff himself testified to a repair estimate in excess of the before-collision value of the truck. He made no effort to have the vehicle repaired, but chose to remove the motor from it. He testified that the reason that he did not replace the truck was because he was unable to borrow money to pay for a replacement.

We conclude that plaintiff’s recovery should be limited to $4,500, the amount found by the jury to be the difference between the before-collision and the after-collision market values of plaintiff’s truck.

Defendant’s objections to the charge of the court contained eleven objections to the series of issues concerning “loss of business” including the objection that the issue inquiring if plaintiff had sustained a loss of business “in the entirety is improper as it is an improper measure of damages.” This objection was reiterated in defendant’s motion for new trial. We think that the objections were sufficient under the facts before us to direct the trial court’s attention to the defect in the issue. We overrule plaintiff’s counterpoint that error with regard to these issues was not preserved for appeal.

Since we hold that loss of use of plaintiff’s truck is not part of the proper measure of damage in the case before us, we do not reach the question of whether the inquiry concerning “loss of business” properly submitted the elements which may be recovered for loss of use of a vehicle.

We overrule defendant’s point of error that special issues inquiring whether Willard May was driving with the permission of Oscar Carson, whether May had no driver’s license, whether Carson knew that May did not have a driver’s license and whether Carson would have known by exercising ordinary care that May had no driver’s license are not controlling issues and should therefore not have been submitted. Plaintiff alleged that defendant was negligent in permitting May to take and drive defendant’s truck when he knew or by the exercise of ordinary care could have known that May did not have a driver’s license. The Supreme Court in Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947) held that the fact that the driver did not have a license and that the owner’s agent by the exercise of due care could have ascertained that he did not have a license may be alleged and proved for the purpose of showing that the owner’s agent was negligent in permitting the driver to take and drive an automobile. The court said:

If, after the automobile is entrusted to such driver, he operates it negligently, and thereby causes damages to a third person, the causal connection is shown between the negligence of the owner in lending him the automobile and the damage to the third person.

Defendant’s contention that the trial court should have granted a new trial because defendant’s driver, May, who was confined in jail, was permitted to roam at large as a trusty in his jail uniform before the jury is not properly before us. The record is devoid of evidence that any juror saw May in a jail uniform or knew he was in jail. The burden was on the defendant to prove the act which he alleges. Roming v. McDonald, 514 S.W.2d 129 (Tex.Civ.App. —El Paso 1974, writ ref’d n. r. e.).

Defendant-appellant’s points of error are overruled except as above stated. We do not reach plaintiff’s remaining counterpoints.

The judgment of the trial court is reformed by deleting recovery for loss of business and awarding plaintiff recovery for $4,500 vehicle damage. The judgment as modified is affirmed.


author: ELLIS, Chief Justice.

text:
    In the Matter of the MARRIAGE OF Winifred C. TANDY and Roger C. Tandy.
    No. 8555.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 28, 1976.
    Rehearing Denied Feb. 23, 1976.

      Lemon, Close, Atkinson & Shearer, G. R. Close, Perryton, for appellant and cross ap-pellee.
    J. E. Blackburn, Spearman, for appellee and cross appellant.
   ELLIS, Chief Justice.

Winifred C. Tandy and Roger C. Tandy, the parties in a divorce action brought by Winifred C. Tandy as petitioner, appeal from that portion of the judgment dividing the property. Neither party complains of any portion of the decree other than the property division. Each party challenges the community and separate characterization made by the trial court with respect to certain items of property. Affirmed in part and reversed and remanded in part.

Mr. and Mrs. Tandy will sometimes be referred to as “husband” and “wife,” respectively. They were married on June 9, 1972 and separated about April 15, 1974. The wife filed this action on May 10, 1974, and on August 2, 1974, the husband as cross-petitioner, filed his cross-action. The case was tried to the court without a jury, and the decree was entered on October 18, 1974. The petitioner-wife was granted a divorce and change of name. Also, the decree recited that the separate and community property owned by the parties should be divided in an equitable manner. Certain listed items of property were awarded to the wife, including one-fourth interest in the 1974 crops, subject to a deduction therefrom of one-fourth of the expenses of hauling, harvesting, etc. The husband was awarded “all other community property” and was to be responsible for the payment of all other community debts. The decree further provided that “[a]ll other property possessed by either party prior to the marriage and still in existence is deemed separate property of that party and is specifically set aside to that party.”

In its findings of fact and conclusions of law the court set out what it had concluded to be a fair and equitable division of the community property. Among other matters, the findings of fact and conclusions of law set out that, excluding certain crops, the community property on hand was found to have a value of approximately $56,500; community debts were found to total approximately $39,000, leaving a net value of the community property at $17,500. A portion of the $39,000 community indebtedness above mentioned was $9,824 ($10,000 less $176.00 spent on wheat land) owing to The First National Bank of Perryton, Texas, and $8,000 owed to Batman Grain, Inc., representing expenses in the total sum of $17,824 attributable to the 1974 crops. The court calculated that the community property awarded to Mrs. Tandy, excluding the crops, was worth $8,750, one-half the total net value of $17,500 in community property. It is apparent that the court was seeking to divide the net value of the community property equally between the parties.

With respect to the 1974 crops, Mrs. Tan-dy was awarded one-fourth of the 1974 wheat, corn and milo crops, in kind. The wheat was in storage, the corn already harvested and the milo yet to be harvested “when it is ready.” Also, the decree recited that from such one-fourth interest there would be deducted one-fourth of the expenses for “all unpaid costs of hauling, harvesting, storage, land-lord’s share (on leased lands), docks, $730.00 for gas and $116.00 for electricity on the corn crop.”

During the period of time relevant to this case, Mr. Tandy was engaged in a joint farming venture with David Tandy, his son by a former marriage. Under the undisputed evidence before the court, and as set out in Mr. Tandy’s brief, David Tandy, in exchange for his work in connection with the farming operation, was to receive one-half of the net crop proceeds after all indebtedness, including the indebtedness to the bank and to the grain company, had been paid. The remaining one-half of such net crop proceeds constituted community interests of Mr. and Mrs. Tandy (one-fourth interest to each).

From the decree entered, both parties have appealed. Each party as an appellant, has raised two points of error.

By point of error number one, the appellant wife contends, in effect, that the trial court erred in calculating David Tandy’s share or interest in the proceeds of the 1974 wheat, corn and milo crops, by failing to allocate an amount equal to one-half of the cost of raising these crops against his interest, thereby decreasing to such extent the net sum to be credited to the community estate. In the decree no mention was made of the allocation of net proceeds of the 1974 crops to David. However, in the findings of fact and conclusions of law, the court found “that the joint venture with David Tandy is bona fide and . . that David Tandy has a one-half interest in the ‘net proceeds’ ... of the 1974 wheat, corn and milo crops.” Net proceeds was defined by the court as “the amount left after deducting the presently unpaid costs of harvest, hauling, storage, landlord’s share (on leased lands), and docks and $730 for gas and $116 for electricity on the corn crop.” Mrs. Tandy contends that the trial court erred by reason of its failure to take into consideration the formula established by the evidence for determining the amount due David out of the proceeds of the 1974 crops, i. e., none of the crop expenses represented by the bank and grain company indebtedness was deducted from the amount of the crop proceeds allocated to David for his compensation for labor in lieu of a salary. The appellant wife asserts that under the formula applicable, as established by the evidence, the trial court should have included the amount of the indebtedness to the bank and to the grain company, all of which was attributable to expenses incurred in connection with the production of the 1974 crops, along with the expenses of harvest, hauling, etc., in determining the amount of the “net proceeds” of the crops.

Mr. Tandy testified that all of the $9,824 indebtedness to the bank and the $8,000 debt to the grain company, created by an advance on the proceeds to be realized from the sale of the 1974 wheat crop stored in the Batman elevators, was attributable to the Tandy farming operations for the 1974 crops. If an amount equal to one-half of the indebtedness to the bank and grain company, in the total sum of $17,824, attributable as 1974 crop expenses, (recognized as a part of the community indebtedness), were considered in determining the amount of the net proceeds of the 1974 crops to which David was entitled, in accordance with the evidence with respect to the manner of allocation of expenses and proceeds, the effect would be to increase the community share of the crop proceeds to the extent of $8,912, which represents one-half of such $17,824 indebtedness. We find no indication that the trial court intended to divide the community estate, or any part thereof, other than equally between the husband and wife, and under such formula above discussed, the sum of $4,456 (one-half of the $8,912 charged against the community estate) would be added to the one-fourth equity (subject to one-fourth of certain other expenses) in the 1974 crop proceeds awarded to Mrs. Tandy. Under the trial court’s findings, no part of the crop expenses represented by the bank and grain company indebtedness was charged against the portion of the net crop proceeds to be received as compensation by David, while all of such indebtedness was charged against the community share of such crop proceeds.

In the light of the foregoing, it is our opinion that the application of the formula established by the evidence with regard to allocating the crop expenses and determining net proceeds requires the community estate to be credited out of the net crop proceeds with an amount equal to one-half of the total indebtedness of $17,824 representing crop expenses with which it was charged as a part of the total community indebtedness. Appellant wife’s first point is sustained to the extent above stated.

In her second point of error, Mrs. Tandy contends that a loan payment to the Federal Land Bank made by Mr. Tandy from a commingled bank account was not sufficiently traced to have been derived from $12,500 of Mr. Tandy’s separate property funds; therefore, she urges the community is entitled to be reimbursed for the community funds applied to separate property debts incurred before the marriage of Mr. and Mrs. Tandy but paid during their marriage. Mrs. Tandy contends that the community should be reimbursed by $14,336, the amount of the payment made by Mr. Tandy.

Mrs. Tandy properly contends that the burden of tracing is upon the one urging that the property on hand is his separate property. Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965). The presumption that all property on hand at the dissolution of the marriage is community property is very strong and can be overcome only by clear and convincing proof. Tarver v. Tar-ver, supra; Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.—Eastland 1964, no writ).

The account from which the Federal Land Bank payment was made contained proceeds of grain sales as well as proceeds from the sale of real estate that was the separate property of Mr. Tandy and his two sons. It was undisputed that the proceeds from the grain sales were community property. Mr. Tandy claims, however, that since the exact amount of money that went into the account was known and the exact amount of money that came out of the account was known, the requirements of tracing were satisfied. We agree. There was evidence that the proceeds from the real estate sale, $25,000, were deposited in February, 1974. In February and March, 1974, $6,250 was disbursed to each of Mr. Tandy’s two sons as their ownership share of the total. Of the $25,000 deposit, $12,500 remained, which amount Mr. Tandy paid to the Federal Land Bank in March, 1974 on his separate property debt. One dollar has the same value as another; there can be no commingling of dollars where the number owned by each claimant is known. Farrow v. Farrow, 238 S.W.2d 255 (Tex.Civ.App.—Austin 1951, no writ). See also, Humble Oil and Refining Company v. West, 508 S.W.2d 812 (Tex.1974). Mrs. Tandy’s second point of error is overruled.

We next consider the points of error asserted by Mr. Tandy in this appeal. Mr. Tandy urges “no evidence,” and alternatively "insufficient evidence” in both of his assignments of error. The “no evidence” points relate to the findings of the trial court that Mr. Tandy failed to meet his burden of proof to establish the separate property character of (1) a $5,000 down payment on the construction of the parties’ residence, and (2) an $11,223.94 payment to the John Deere Company. Upon a review of all the 'evidence, it is our opinion that there is evidence of probative force to support the findings of fact made by the trial court, now challenged by Mr. Tandy as appellant. The “no evidence” contentions are overruled.

In considering Mr. Tandy’s “insufficient evidence” points we note that they relate to findings upon which Mr. Tandy had the burden of proof. Mr. Tandy contends that he has met his burden of proof with respect to those factual matters and that the findings of the trial court are against the great weight and preponderance of the evidence with respect to certain transactions and items of property.

In his first point, Mr. Tandy contends that the trial court erred in finding that he failed to meet his burden of proof with respect to the separate property character of a $5,000 down payment on the construction of the parties’ residence. The down payment was made by two $2,500 checks drawn against the Roger C. Tandy bank account in July and October, 1972. The deed to the property named both parties as grantees. Both parties signed the mortgage and note for the balance of the purchase price. The testimony of Mr. Tandy was neither clear nor wholly consistent as to the source of this particular money. He testified at one point that he could not identify where the $5,000 came from, but that it was from money he had accumulated. In later testimony Mr. Tandy repeated that he could not identify where it came from, but gave an affirmative response to an inquiry as whether the source of the $5,000 down payment was his “separate money.” ' It was for the trier of the facts to evaluate the weight and credibility of the testimony.

Mr. Tandy relies chiefly upon the case of Carter v. Grabeel, 341 S.W.2d 458 (Tex.Civ.App.—Amarillo 1960, no writ), as support for his contention that the $5,000 down payment was property traced. Carter v. Grabeel is distinguishable from the instant case in that it is a case where the court found that the wife had made a down payment out of her separate property and thereby established a kind of tenancy in common between the separate estate and the community estate. In the instant case the character of the down payment itself is in issue, and the court made no express finding as to whether the down payment was separate or community, but instead found that the property was so commingled that it could not be traced. It is our opinion that the holding in Carter v. Grabeel is not controlling here. Mr. Tandy’s first point of error is overruled.

Mr. Tandy’s point of error number two challenges the trial court’s finding with respect to a payment to John Deere Company in December, 1972, in the amount of $11,-223.94 for the purchase of a farm tractor in 1971. There was evidence that the payment was made with funds borrowed by Mr. Tandy during the marriage of the parties. The evidence included a bank statement for the Roger C. Tandy bank account on which statement Mr. Tandy had made the notation that a deposit of $11,250 was from a “note for J. D. 5020 Tractor 1968 model.” The debt evidenced by the note was paid in 1973 in two installments without any indication as to the source of the funds used to pay the debt, except that the funds were attributable to the sale of crops, a transfer from another bank account, a note payment, and government agricultural payments. There was further evidence that not all deposits to the Roger C. Tandy account had been itemized and their sources traced.

Under these circumstances, we cannot say that the finding of the trial court that “ . . . the community and separate funds are comingled to such an extent that it is impossible to trace those items and those contentions [by Mr. Tandy] cannot be sustained.” is against the great weight and preponderance of the evidence. Missouri Pac. Ry. Co. v. Somers, 78 Tex. 439, 14 S.W. 779 (1890). Mr. Tandy’s second point of error is overruled.

The trial court’s finding with respect to the formula for sharing with David the crop proceeds and expenses is basic to its division of the community property of the spouses. Because we have determined that such finding is not in accordance with the evidence, as we construe it, we sever, reverse and remand the portion of the decree dividing the property of the spouses. This reversal and remand is not to be construed as any interference with the trial court’s discretionary power to make the property division between the parties to this divorce action as it deems just and fair on the basis of the evidence and proper equitable considerations.

The portion of the decree pertaining to the granting of the divorce and the change of the petitioner’s name is affirmed.


text:
    Sharon C. GIDDINGS, Appellant, v. HAROLD V. SIMPSON AND COMPANY, Appellee.
    No. 5518.
    Court of Civil Appeals of Texas, Waco.
    Jan. 29, 1976.
    Joel B. Mitchell, Austin, for appellant.
    Don L. Baker, Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Sharon C. Giddings from judgment rendered against her (jointly and severally with her husband John C. Giddings) for $1117.20 in a suit on a sworn account.

Plaintiff Simpson sued defendants John D. Giddings and Sharon C. Giddings on sworn account for $740. for accounting work and preparation of income tax return, plus $250. attorney’s fees.

Defendant filed a sworn answer denying the account was just and true.

Trial before the court resulted in judgment for plaintiff against both defendants.

Defendant Sharon C. Giddings appeals on 6 points contending:

1) The trial court committed fundamental error in granting judgment against Sharon C. Giddings because there is no evidence and insufficient evidence to show she contracted for the services or accounts sued on.
2) The trial court erred in granting judgment against Sharon C. Giddings because the account sued on did not name her.
3) The trial court erred in granting judgment against Sharon C. Giddings because no fact was plead authorizing a personal judgment against her.
4) The trial court erred in awarding attorney’s fees against Sharon C. Gid-dings.

Defendant (appellant) has brought forward no statement of facts.

In the absence of a Statement of Pacts, it must be presumed on appeal that sufficient evidence was introduced to support the findings and judgment of the trial court. • Ehrhardt v. Ehrhardt, (Tex.Civ.App., Waco) Er.Ref. 368 S.W.2d 37; Englander Co. v. Kennedy, Tex., 428 S.W.2d 806.

Plaintiff plead: “Plaintiff sold to defendants * * * services which defendants accepted and thereby became bound to pay plaintiff the stated price thereof * * Such pleading is sufficient to authorize personal judgment against both defendants. Moreover, defendants filed no exception to plaintiff’s pleading. See Rule 90 TRCP; and insufficiency of pleading cannot be raised for the first time on appeal. Sherman v. Provident American Ins. Co., Tex., 421 S.W.2d 652; Lewter v. Dallas County, (Tex.Civ.App., Waco) NRE, 525 S.W.2d 885.

All appellant’s points and contentions are overruled.

Affirmed.


author: WALTER, Justice. McCLOUD, Chief Justice

text:
    Debra Jean LEMASTER, a minor, et al., Appellants, v. CHANEY & SON GAS COMPANY, Appellee.
    No. 4848.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 29, 1976.
    Rehearing Denied Feb. 19, 1976.

      A1 Taylor, Nagle, Taylor & Ewing, Houston, Saul A. Pullman, Eastland, for appellants.
    Bill Tippen, Abilene, Virgil T. Seaberry, Jr., Eastland, for appellee.
   WALTER, Justice.

Debra Jean Lemaster, by and through her father, Ben H. Lemaster, as next friend, and Ben H. Lemaster, individually sued Chaney & Son Gas Company for damages resulting from a butane flash fire which occurred while Gayle Chaney, a co-owner of defendant, was filling a butane tank. The jury failed to find that Gayle Chaney was in any way negligent. Judgment was entered for defendant. Plaintiffs have appealed. We affirm.

Plaintiffs contend the jury findings are against the great and overwhelming weight and preponderance of the evidence so as to be manifestly unjust. Plaintiffs also complain of jury misconduct.

Gayle Chaney was requested to deliver butane to the Avinger residence. Upon arrival, he parked his truck, spoke briefly with Mrs. Avinger, hooked his delivery hoses to the tank, engaged the truck pump, and commenced to fill the tank. While the tank was filling, the safety relief or pop-off valve opened, “spewed” for a short period of time, and then closed. Borne fifteen to twenty seconds later, the butane flashed. The butane tank was owned by the Aving-ers. The evidence indicates the gas was ignited from either a hot water heater or electric water pump located in a closet built on the side of the Avinger house.

In Special Issue 1, the jury failed to find that Gayle Chaney’s failure to watch the liquid gallon meter on the truck as he was pumping the butane into the Avinger tank was negligent. The jury in Special Issue 3 failed to find that Chaney’s action in overfilling (in gallons) the Avinger tank was negligent.

In considering great weight and preponderance points, we are to consider the entire record. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Chaney’s truck was equipped with a gallon meter. He did not watch the meter while filling the tank. Herbert Shilstone, Jr., a registered professional engineer, who had extensive experience in testing devices and materials to determine the cause of accidents, testified that when dealing with hazardous material the prudent and safe thing to do is to look at the meter on the truck in conjunction with looking at the percent gauge on the tank, to prevent overfilling the tank. Harry Thomas, an expert witness, testified the normal operator goes by his truck meter as well as the gauge on the tank. Gayle Chaney testified there was no regulation or requirement that a delivery truck be equipped with a gallon meter. Furthermore, he stated that to position the truck in order to read the gallon meter on the truck would require the truck to face the butane tank and place the engine of the truck in close proximity to the tank which would create a special hazard. Mr. C. B. Chaney, who had 26 years experience in the butane business, stated the Texas Railroad Commission rules and regulations require an operator to stand by and watch the gauge on the tank at all times. He stated they seldom ever use the gallon meter on the trucks.

The jury could reasonably conclude from the evidence the tank was overfilled and this resulted from a defective percentage float gauge even though Mrs. Avinger testified she had never had trouble with the tank. There is testimony that an acceptable practice is to watch the float percentage gauge on the tank when filling the tank. Gayle Chaney testified he intended to stop the pump when the percent gauge indicated the tank was 90% full. This is an acceptable limit. He observed nothing unusual about the way the gauge advanced before the trouble started. He testified the pop-off valve popped when the tank gauge was indicating 85%. There is evidence that after the fire, the percent gauge showed 80%.

We hold the findings of the jury to Special Issues 1 and 3 are not against the great weight and preponderance of the evidence.

The jury failed to find in Special Issues 5 and 7 that Chaney was negligent in not giving a warning of danger during the time the pop-off valve was spewing nor during the time after the pop-off valve had closed and before the butane caught fire.

Mrs. Avinger testified that when the truck arrived, she told all of the children playing in the back to go to “the front yard, now, and they all went.” At this time, Debbie Lemaster was inside the house. When the tank made a “real loud pop noise,” some of the children came running to the back yard with their hands over their ears. Mrs. Avinger then said, “You children get in the house.” At that time, Debbie “was standing there holding the screen door open for the children to go in the house.” At this time, the tank was making a “spewing sound.” The door Debbie was standing in at the back of the house was 20 feet and 3 inches from the butane tank. Mrs. Avinger testified Debbie could have easily heard her tell the other children to get in the house.

Debbie Lemaster testified that she heard a popping noise and went to the back door. She was at the back door when the children came into the house. She testified about two minutes passed from the time the pop occurred until the fire occurred.

Gayle Chaney testified that when he arrived on the premises, several children were playing in the yard and he was going to tell them to get back, but before he could, Mrs. Avinger told them to get back and go to the front yard. He stated that from the time the tank stopped spewing until the explosion occurred was 15 or 20 seconds. Chaney testified that during the time the gas was spewing, he was busy trying to remedy any possibilities of fire. He said that he heard the children holler and run when the pop-off valve released and he had no idea they had come back into the vicinity. He stated that while the tank was spewing, “I didn’t even see them. I don’t know where they was. They left.” At that time, he stated, “They were gone, as far as I could tell. I was busy.” When the pop-off valve released and spewing started, Chaney turned off the valve at the end of the delivery hose, went to his truck, turned off the engine and the main cut-off valve. He picked up a brass hammer, returned to the tank, and tapped the pop-off valve about four times. The valve then closed and the spewing stopped. After the spewing stopped, Chaney admitted there was a tremendous danger of fire if the gas reached an ignition source. Chaney did not know the hot water heater or pump were located in the outside closet. When asked if he at that time warned anybody to stay away, he said, “As far as I knew, there was nobody there, and like I say, my back was to the house.” When asked if he looked to see if anybody was around when he started to remove the hose, Chaney said:

“A. I didn’t look for nobody . in other words, I didn’t see nobody and it was a pretty small area, so if they’d been there, I probably would have seen them. But now, as far as going and looking for nobody, no.
Q. All right, that’s what I meant. Did you glance around to see if anybody was in the immediate area of the tank?
A. I could see in the immediate area of the tank. I guess you might say yes, I guess I did, because I could see in the immediate area.
Q. All right, did you see anybody?
A. No.”

At another point, when asked if he issued a warning during the spewing, Chaney testified, “There wasn’t nobody there at that period of time when it was popping off. They had all run.” As to why he failed to give a warning after it stopped spewing and before the flash fire occurred, he said, “No, I didn’t know there was anybody left there but me.” He stated further, “The only thing I didn’t understand is why they even came back in that short period of time, and I didn’t realize they did or I would have shouted a warning or hollered or something.” In Chaney’s deposition, he stated that after the spewing stopped everything seemed to be all right and any danger had apparently passed.

Herbert Shilstone, Jr., in answer to a hypothetical question, stated in his opinion a warning should have been given during the time the pop-off valve was open and after it closed before the flash.

The jury could have certainly concluded from the evidence that Chaney was negligent in not giving a warning. However, from the peculiar facts of the case, the jury could have reasonably failed to find Chaney was negligent in not giving a warning. He heard Mrs. Avinger tell the children to leave the back yard. Chaney was confronted with an emergency situation. There is evidence he saw no people in the area and he thought all had left the area around the tank.

The jury’s findings to Special Issues 5 and 7 are not against the great weight and preponderance of the evidence.

Plaintiffs next assert jury misconduct. Four jurors testified and each said the word “insurance” was mentioned. The testimony of the jurors, however, shows only a casual mention of insurance and when it was brought up, the members of the jury were quickly admonished that it was not to be considered. We hold that plaintiffs have failed to prove that injury probably resulted. Putnam v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956).

We have considered all of the plaintiffs’ points and find no merit in them. They are overruled.

The judgment is affirmed.

McCLOUD, Chief Justice

(dissenting):

I dissent. Plaintiffs proved an overt act of material jury misconduct which resulted in probable injury.

Juror Bledsoe testified that while they were discussing the issues covering the con-duet of Gayle Chaney, he overheard someone say that Chaney did not have any insurance. He said he thought it was Juror Housh who made the statement. He said that up to that point, Housh had done a good bit of talking on the questions. Bled-soe stated it seemed to him there was more than one reference made about insurance and such references were made at “the early part of the time we was in there” while they were discussing the questions about Gayle Chaney’s conduct. He stated, that while the jury was in the jury room, “it was discussed in there, on the insurance, and they thought he was going to have to pay, and things like that.” He testified that following the statement made by Housh regarding insurance one of the men said, “Well, we wasn’t supposed to consider that.” He said Juror Anderson stated, “that if the Chaneys didn’t have any insurance, they ought to have.”

Juror Bryant stated, “One time the word ‘insurance’ was brought up, and somebody, I don’t remember who, said we weren’t supposed to consider it, the fact that there might be insurance. I don’t remember who it was or anything about it, really, I just remember that it was brought up.”

Juror Swift testified she remembered only that the word “insurance” was mentioned on one or more occasions, and that each time it was mentioned somebody said it was not proper to consider it.

Juror Anderson testified that during the time the jury was considering Special Issues 1, 3, 5, and 7, somebody, probably Housh, said, “that they didn’t think they had insurance.” Anderson stated he thought he responded by saying, “Why, I’m sure he had insurance.” He said insurance was mentioned probably two or three times. On cross-examination, Anderson testified that when insurance was mentioned, admonitions were given that insurance was not to be considered, and that would stop the discussion of insurance.

It is improper to disclose that a defendant does or does not have liability insurance. Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962 (1944). The size of the verdict is a proper matter for consideration in determining the issue of probable injury. Great Western Inv. Co. v. Scott, 254 S.W.2d 411 (Tex.Civ.App.—San Antonio, 1952, writ ref. n. r. e.); Eichelberger v. Rankin, 278 S.W.2d 278 (Tex.Civ.App.—San Antonio 1955, writ ref. n. r. e.); Pope, Jury Misconduct and Harm, XII Baylor L.Rev. 355 (1960). The jury in the instant case answered “0” to all damage issues.

Debra Jean Lemaster received extensive burns over 45% of her body. She was hospitalized in the Fort W.orth Children’s Hospital for 102 days, where she incurred a $13,-776.50 hospital bill. The bill of the plastic surgeon was $6,915.00. The liability issues were close and highly controverted. The injuries were severe, yet the jury answered “O” to all damage issues. In my opinion, plaintiffs have shown probable injury. Rule 327, T.R.C.P.; Barrington r. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943).

I would reverse and remand the cause.


text:
    Lela BIVENS et al., Appellants, v. Dorothy Marie Stratton BYERS, Individually and as Administratrix of the Estate of G. J. Stratton, Deceased, et al., Appellees.
    No. 5540.
    Court of Civil Appeals of Texas, Waco.
    Jan. 29, 1976.
    Rehearing Denied Feb. 26, 1976.

      McWhorter, Cobb & Johnson, Lubbock, for appellants.
    Brown & Hill, Nall, Harrison & Nall, Henderson, Bryant & Wolfe, William R. Bryant, Sherman, for appellees.
   OPINION

McDONALD, Chief Justice.

The question presented is that of ownership of five certificates of deposit which were issued by the First National Bank of Van Alstyne, Texas. One of the certificates was made payable to the order of “Minnie Elkins or G. J. Stratton”, and each of the other 4 certificates were made payable to the order of one of the other appellants “or G. J. Stratton”. The bank filed interpleader alleging G. J. Stratton purchased the five certificates, acknowledged it owes the amounts of such certificates, and impleads the appellants (sisters and a cousin of G. J. Stratton), and appellees (widow, administratrix of Estate, and children of G. J. Stratton).

The trial court rendered judgment awarding the Bank an attorney’s fee, and decreeing the balance of such certificates of deposit to Appellee Administratrix of the Estate of G. J. Stratton.

Appellants appeal on 6 points contending:

The trial court erred in not recognizing appellants’ rights as 3rd party beneficiaries and survivors of the contract between G. J. Stratton and the Bank, because the failure to so hold was against the great weight and preponderance of the evidence, and the contracts being uncontro-verted and established as a matter of law.

G. J. Stratton in 1973 was about 80 years old; had a wife of many years and 5 children. In March and October, 1973 he came into the Van Alstyne Bank, where he was known and was a customer, and purchased 5 Certificates of Deposit, 4 for $2000. each, and 1 for $5000. He paid for them with cash out of his pockets, and requested that they be issued payable to the order of: “Lela Bivens or G. J. Stratton”, “Susie Rug-gles or G. J. Stratton”, “Doll Boyd or G. J. Stratton”, “G. J. Stratton or Ruby Stone”. The copayees are all sisters of Mr. Stratton except Ruby Stone who is a cousin. All 5 certificates provided that all interest would be paid to G. J. Stratton.

Mr. Stratton told the bank employee issuing the certificates that he did not want the people whose names were on the certificates to know about them; “that he wanted them to have and receive the funds”. Mr. Stratton signed a signature card for each certificate. The bank employee showed Mr. Stratton the back of the signature card with the right of survivorship clause and attempted to explain this to him, but he was “not interested” and did not sign it.

Mr. Stratton died in March 1975, and his daughter Dorothy Marie Byers qualified as Administratrix of this Estate.

Succinctly stated the controlling facts before us are:

That G. J. Stratton purchased and requested issuance of 5 certificates of deposit “payable to the order of Lela Bivens or G. J. Stratton”. Mr. Stratton signed a plain signature card.

The certificate provided all interest be sent to Mr. Stratton. Mr. Stratton stated to the bank employee handling the transaction he wanted the copayees on the certificates to “receive the funds”, but when shown the “Right of Survivorship” clause on the reverse side of the signature card and having same explained to him, Mr. Stratton said he was not interested and did not sign the “Right of Survivorship” signature card.

Appellants contend that the intent of Mr. Stratton was shown by parol evidence to create contracts of deposit with right of survivorship in each copayee, and that the trial court’s finding to the contrary is against the great weight and preponderance of the evidence, and further that such contracts were established as a matter of law.

Forehand v. Light, S.Ct., Tex., 452 S.W.2d 709 traces the development of the law in this field, and holds that where a certificate of deposit provides that amount on deposit is payable to the depositor “or” her daughter, and contained no reference to survivorship rights, the daughter had no right to the proceeds of the certificates, on death of the depositor.

To the same effect is Steinbach v. Kieke, CCA (Houston 14th) NWH, 451 S.W.2d 956.

Henry v. Powers, CCA (Houston 1st) NWH, 447 S.W.2d 738 holds that in a depositor “or” named copayee situation (as in Light, Steinbach and the case at bar), that parol testimony as to the circumstances under which the contracts were entered is admissible to determine the real intention of the parties.

Assuming that parol evidence admissible in the -instant case to determine the real intention of Mr. Stratton, we think the trial court authorized to find and hold from the evidence, as he did; that there is ample evidence to support the judgment; and that the judgment is not against the great weight and preponderance of the evidence.

All appellants’ points have been considered and are overruled.

Affirmed.

      . Other names appeared as copayee on the other 4 certificates.


author: PALMORE, Justice.

text:
    Robert NIX, Jr., et al., Appellants, v. Mary K. JORDAN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    W. R. Patterson, Jr., Landrum, Patterson & Dickey, Lexington, Charles E. Carter, Owenton, for appellants.
    James T. Robertson, Joe H. Taylor, Louisville, Robert C. Ford, Jr., Owenton, for ap-pellees.
   PALMORE, Justice.

Mary K. Jordan was injured in a collision between an automobile driven by her husband, Orval Jordan, in which she was a passenger, and an automobile owned by Robert Nix and driven by his son, Robert, Jr., within the family purpose doctrine. In this action Mrs. Jordan sued the Nixes but did not assert a claim against her husband. The Nixes, however, brought a third-party complaint against Orval Jordan demanding, among other things, “contribution in the amount of one-half of any judgment which may be rendered in favor of the Plaintiff against these Defendants and Third Party Plaintiffs,” etc.

Under an instruction based on joint and concurrent negligence of Orval Jordan and Robert Nix, Jr., a jury awarded Mary K. Jordan damages of $7,000 against the Nixes. Judgment was entered accordingly, in which the Nixes were awarded contribution against Orval Jordan equal to one-half the amount of the judgment and costs. The Nixes appeal.

We have reviewed the record and are of the opinion that there were no errors sufficient to justify a reversal. There is, however, one point on which a discussion may be helpful to the bench and bar in future trials.

Before the case was submitted counsel for the Nixes requested that the jury be permitted to apportion the liability between the Nixes and Orval Jordan if it should find both drivers negligent. It is contended here that Orr v. Coleman, Ky., 455 S.W.2d 59 (1970), was applicable and that the trial court erred in not permitting the jury to apportion the damages.

Though it might otherwise make good sense to apply the principle of apportionment among joint tortfeasors without exception, the authority for Orr v. Coleman, Ky., 455 S.W.2d 59 (1970) derives from a statute (KRS 454.040) which cannot fairly be construed that liberally. Literally, the statute permits apportionment only against “defendants,” which necessarily means joint defendants. Orval Jordan was a defendant, but only as to the third-party complainants, and not as to the original plaintiff. In Orr v. Coleman, supra, the settling tortfeasor was no longer a defendant in the sense of being a party to the lawsuit, but it was our opinion that the public policy of encouraging settlements justified our construing KRS 454.040 to include as “defendants” joint tortfeasors who probably would have been defendants but for the fact that they had bought their peace. Certainly the settlement itself attests the active assertion of a claim, whereas in this case, by contrast, it is obvious that the plaintiff had not asserted any claim against her husband, the third-party defendant.

The judgment is affirmed.

All concur except LUKOWSKY, J., not sitting.

       (For the purpose at hand it may be assumed that the request for such an instruction was tantamount also to a request for permission to amend the prayer of the third-party complaint.)


author: STERNBERG, Justice.

text:
    J. S. HOLBROOK and Lula P. Holbrook, his wife, Appellants, v. Ben TAYLOR and Edna Taylor, his wife, Appellees.
    Supreme Court of Kentucky.
    Jan. 23, 1976.
    Harry M. Caudill, Whitesburg, for appellants.
    Ronald G. Polly, Polly & Craft, Whites-burg, for appellees.
   STERNBERG, Justice.

This is an action to establish a right to the use of a roadway, which is 10 to 12 feet wide and about 250 feet long, over the unenclosed, hilly woodlands of another. The claimed right to the use of the roadway is twofold: by prescription and by estoppel. Both issues are heatedly contested. The evidence is in conflict as to the nature and type of use that had been made of the roadway. The lower court determined that a right to the use of the roadway by prescription had not been established, but that it had been established by estoppel. The landowners, feeling themselves aggrieved, appeal. We will consider the two issues separately.

In Grinestaff v. Grinestaff, Ky., 318 S.W.2d 881 (1958), we said that an easement may be created by express written grant, by implication, by prescription, or by estop-pel. It has long been the law of this commonwealth that “(a)n easement, such as a right of way, is created when the owner of a tenement to which the right is claimed to be appurtenant, or those under whom he claims title, have openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil, and with his knowledge and acquiescence, used a way over the lands of another for as much as 15 years.” Flener v. Lawrence, 187 Ky. 384, 220 S.W. 1041 (1920); Rominger v. City Realty Company, Ky., 324 S.W.2d 806 (1959).

In 1942 appellants purchased the subject property. In 1944 they gave permission for a haul road to be cut for the purpose of moving coal from a newly opened mine. The roadway was so used until 1949, when the mine closed. During that time the appellants were paid a royalty for the use of the road. In 1957 appellants built a tenant house on their property and the roadway was used by them and their tenant. The tenant house burned in 1961 and was not replaced. In 1964 the appel-lees bought their three-acre building site, which adjoins appellants, and the following year built their residence thereon. At all times prior to 1965, the use of the haul road was by permission of appellants. There is no evidence of any probative value which would indicate that the use of the haul road during that period of time was either adverse, continuous, or uninterrupted. The trial court was fully justified, therefore, in finding that the right to the use of this easement was not established by prescription.

As to the issue on estoppel, we have long recognized that a right to the use of a roadway ever the lands of another may be established by estoppel. In Lashley Telephone Co. v. Durbin, 190 Ky. 792, 228 S.W. 423 (1921), we said:

“Though many courts hold that a licensee is conclusively presumed as a matter of law to know that a license is revocable at the pleasure of the licensor, and if he expend money in connection with his entry upon the land of the latter, he does so at his peril * * *, yet it is the established rule in this state that where a license is not a bare, naked right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements thereon, the licen-sor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense; * *

In Gibbs v. Anderson, 288 Ky. 488, 156 S.W.2d 876 (1941), Gibbs claimed the right, by estoppel, to the use of a roadway over the lands of Anderson. The lower court denied the claim. We reversed. Anderson’s immediate predecessor in title admitted that he had discussed the passway with Gibbs before it was constructed and had agreed that it might be built through his land. He stood by and saw Gibbs expend considerable money in this construction. We applied the rule announced in Lashley Telephone Co. v. Durbin, supra, and reversed with directions that a judgment be entered granting Gibbs the right to the use of the passway.

In McCoy v. Hoffman, Ky., 295 S.W.2d 560 (1956), the facts are that Hoffman had acquired the verbal consent of the landowner to build a passway over the lands of the owner to the state highway. Subsequently, the owner of the servient estate sold the property to McCoy, who at the time of the purchase was fully aware of the existence of the roadway and the use to which it was being put. McCoy challenged Hoffman’s right to use the road. The lower court found that a right had been gained by prescription. In this court’s consideration of the case, we affirmed, not on the theory of prescriptive right but on the basis that the owner of the servient estate was es-topped. After announcing the rule for establishing a right by prescription, we went on to say:

“* * * On the other hand, the right of revocation of the license is subject to the qualification that where the licensee has exercised the privilege given him and erected improvements or made substantial expenditures on the faith or strength of the license, it becomes irrevocable and continues for so long a time as the nature of the license calls for. In effect, under this condition the license becomes in reality a grant through estoppel. * * ⅜.”

In Akers v. Moore, Ky., 309 S.W.2d 758 (1958), this court again considered the right to the use of a passway by estoppel. Akers and others had used the Moore branch as a public way of ingress and egress from their property. They sued Moore and others who owned property along the branch seeking to have the court recognize their right to the use of the roadway and to order the removal of obstructions which had been placed in the roadway. The trial court found that Akers and others had acquired a prescriptive right to the use of the portion of the road lying on the left side of the creek bed, but had not acquired the right to the use of so much of the road as lay on the right side of the creek bed. Consequently, an appeal and a cross-appeal were filed. Considering the right to the use of the strip of land between the right side of the creek bed and the highway, this court found that the evidence portrayed it very rough and apparently never improved, that it ran alongside the house in which one of the protestors lived, and that by acquiescence or by express consent of at least one of the protestors the right side of the roadway was opened up so as to change the roadway from its close proximity to the Moore residence. The relocated portion of the highway had only been used as a passway for about six years before the suit was filed. The trial court found that this section of the road had not been established as a public way by estoppel. We reversed. In doing so, we stated:

“We consider the fact that the appel-lees, Artie Moore, et al, had stood by and acquiesced in (if in fact they had not affirmatively consented) the change being made and permitted the appellants to spend money in fixing it up to make it passable and use it for six years without objecting. Of course, the element of time was not sufficient for the acquisition of the right of way by adverse possession. But the law recognizes that one may acquire a license to use a passway or roadway where, with the knowledge of the licensor, he has in the exercise of the privilege spent money in improving the way or for other purposes connected with its use on the faith or strength of the license. Under such conditions the license becomes irrevocable and continues for so long a time as its nature calls for. This, in effect, becomes a grant through estoppel. Gibbs v. Anderson, 288 Ky. 488, 156 S.W.2d 876; McCoy v. Hoffman, Ky., 295 S.W.2d 560. It would be unconscionable to permit the owners of this strip of land of trivial value to revoke the license by obstructing and preventing its use.”

In the present case the roadway had been used since 1944 by permission of the owners of the servient estate. The evidence is conflicting as to whether the use of the road subsequent to 1965 was by permission or by claim of right. Appellees contend that it had been used by them and others without the permission of appellants; on the other hand, it is contended by appellants that the use of the roadway at all times was by their permission. The evidence discloses that during the period of preparation for the construction of appel-lees’ home and during the time the house was being built, appellees were permitted to use the roadway as ingress and egress for workmen, for hauling machinery and material to the building site, for construction of the dwelling, and for making improvements generally to the premises. Further, the evidence reflects that after construction of the residence, which cost $25,000, was completed, appellees continued to regularly use the roadway as they had been doing. Appellant J. S. Holbrook testified that in order for appellees to get up to their house he gave them permission to use and repair the roadway. They widened it, put in a culvert, and graveled part of it with “red dog”, also known as cinders, at a cost of approximately $100. There is no other location over which a roadway could reasonably be built to provide an outlet for appellees.

No dispute had arisen between the parties at any time over the use of the roadway until the fall of 1970. Appellant J. S. Holbrook contends that he wanted to secure a writing from the appellees in order to relieve him from any responsibility for any damage that might happen to anyone on the subject road. On the other hand, Mrs. Holbrook testified that the writing was desired to avoid any claim which may be made by appellees of a right to the use of the roadway. Appellees testified that the writing was an effort to force them to purchase a small strip of land over which the roadway traversed, for the sum of $500. The dispute was not resolved and appellants erected a steel cable across the roadway to prevent its use and also constructed “no-trespassing” signs. Shortly thereafter, the suit was filed to require the removal of the obstruction and to declare the right of ap-pellees to the use of the roadway without interference.

The use of the roadway by appellees to get to their home from the public highway, the use of the roadway to take in heavy equipment and material and supplies for construction of the residence, the general improvement of the premises, the maintenance of the roadway, and the construction by appellees of a $25,000 residence, all with the actual consent of appellants or at least with their tacit approval, clearly demonstrates the rule laid down in Lashley Telephone Co. v. Durbin, supra, that the license to use the subject roadway may not be revoked.

The evidence justifies the finding of the lower court that the right to the use of the roadway had been established by estoppel.

The judgment is affirmed.

All concur, except STEPHENSON, J., who dissents.


author: JONES, Justice.

text:
    Joe David STEENBERGEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 6, 1976.

      Jack Emory Farley, Public Defender, Joe A. Jarrell, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

On November 9, 1957, Steenbergen was indicted by a Butler County Grand Jury on a charge of malicious striking and wounding with intent to kill. On November 12, 1957, he waived trial by jury and entered a plea of guilty. By agreement of Steenber-gen, his counsel, and the attorney for the Commonwealth, the trial court imposed a sentence of three years. Steenbergen was formally sentenced on November 16, 1957.

Steenbergen is presently serving a life sentence imposed on a subsequent conviction in March 1971. That conviction was under the Kentucky Habitual Criminal Statute. KRS 431.190.

Steenbergen filed in the circuit court a motion and affidavit pursuant to CR 60.-02(6). In that motion, he sought to have the 1957 judgment vacated. The trial court overruled the motion. From that judgment Steenbergen appeals.

He argues that the 1971 conviction under the Kentucky Habitual Criminal Statute was based on the 1957 conviction. The 1957 conviction was void because the record failed to disclose that he had counsel at the formal sentence. Steenbergen seeks repose under the umbrella of Oliver v. Cowan, 487 F.2d 895 (6th Cir. 1973). There, the 6th circuit declared sentencing a critical stage of the proceeding requiring counsel.

This court has repeatedly and steadfastly held that formal sentencing is not a critical stage of the proceeding unless prejudice is shown. King v. Commonwealth, Ky., 487 S.W.2d 683 (1972); Reams v. Commonwealth, Ky., 522 S.W.2d 853 (1975).

This court has rejected the cloak of sanctity imposed by Oliver. In plain language not subject to misinterpretation, the court has held that the guiding hand of counsel is not required in formal sentencing procedures because it is not a critical stage of the proceeding. This is particularly so when the accused has shown no prejudice in order to be entitled to the relief sought. This court, in Reams, specifically rejected the application of Oliver. There the court stated:

“. . . that it is not bound by Oliver and does not accept the principles enunciated therein as sound in the absence of a showing of prejudice. To set aside a judgment upon such a technical ground without even an allegation that the defendant had a reason why it should not have been pronounced would, it seems to us, be absurd.”

It has been more than 18 years since Steenbergen voluntarily entered a plea of guilty to malicious striking and wounding with intent to kill. Counsel stood with him that day. Four days later, Steenbergen was formally sentenced in conformity with his plea of guilty and the agreement made by him, his counsel, and the Commonwealth’s attorney. Now, he cries foul, and seeks the comfort and solace of the holding in Oliver to have the 1957 conviction vacated. The court is of the opinion that the action of the trial court in overruling Steen-bergen’s motion to vacate the 1957 judgment was correct.

The judgment is affirmed.

All concur.


author: RENDLEN, Judge.

text:
    James V. WHITE, Plaintiff-Appellant, v. O. E. GALLION, Defendant-Respondent.
    No. 36200.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 12, 1975.
    Motion for Rehearing or Transfer En Banc Denied Jan. 23, 1976.
    Application to Transfer Denied April 14, 1976.
    Murray A. Marks, Clayton, William R. Kirby, St. Louis, for plaintiff-appellant.
    Armstrong, Teasdale, Kramer & Vaughn, Frank N. Gundlach, St. Louis, for defendant-respondent.
   RENDLEN, Judge.

Plaintiff appeals from an adverse judgment on his claim for personal injuries incurred as a pedestrian when struck by defendant’s automobile in the City of St. Louis. The petition charged primary and humanitarian negligence but plaintiff submitted his cause on humanitarian negligence only.

On appeal plaintiff contends the trial court erred in the following respects: (1) by permitting defendant to read in evidence immaterial and irrelevant portions of plaintiff’s hospital record; (2) by allowing improper argument in which defense counsel misstated the law concerning defendant’s duty to maintain a lookout and by such argument erroneously instructed the jury on the charge of humanitarian negligence; and (3) in permitting prejudicial, immaterial and irrelevant argument pertaining to plaintiff’s drinking on the day of the accident which improperly injected plaintiff’s antecedent negligence in the humanitarian claim against defendant.

A brief statement of the facts will suffice. While crossing Newstead Avenue, a north-south street, at its intersection with Lexington Avenue in the City of St. Louis, plaintiff was struck by defendant’s southbound automobile. Plaintiff testified he stood on the northeast corner, looked in both directions for traffic, and seeing none, attempted to cross to the west. When crossing, he was struck by defendant’s car which came upon him from the north without warning. Disputing that account, defendant testified plaintiff “darted” from behind stationary traffic in the opposite lane and passing in front of defendant’s automobile, slipped backwards, struck the side of the car, rolled across the hood and fell to the street.

As previously stated, plaintiff alleged both primary and humanitarian negligence, submitting however only on the latter. Mindful of this, we first consider appellant’s second contention stemming from the following exchange during defendant’s final argument:

“MR. GUNDLACH (defense counsel): When I was impaneling the jury, I asked you if you would carefully follow the evidence and the instructions of the Court and would not let anything else enter into your decision, not sympathy for one side or the other. If you listened carefully to the instructions, there was no charge of Mr. Gallion (defendant) failing to keep a careful lookout or driving too fast. (Emphasis added).
MR. KIRBY (plaintiff’s counsel): I object to that, Your Honor. There is a charge of failure to keep a careful lookout.
MR. GUNDLACH: Do you have the instructions?
MR. KIRBY: Here they are; paragraphs 2 and 3 (Instruction No. 2 is the Humanitarian Instruction in question).
MR. GUNDLACH: There is nowhere in this instruction — you can take the instructions with you to the jury room. It doesn’t charge the defendant with negligence and failure to keep a careful lookout, paragraph 2. (Emphasis added).
MR. KIRBY: I want to object to that, Your Honor. That’s the MAI instruction that says he knew or could have known, and that’s lookout.
MR. GUNDLACH: That’s your interpretation of ‘lookout,’ Mr. Kirby.
THE COURT: The court will overrule the objection. The jury will have the instructions.
MR. GUNDLACH: The word ‘lookout’ is not used in here.. He is charged with being Superman; that’s what he is asking Mr. Gallion to be, a Superman. How in the world you can see through cars and around streets is beyond me.”

The instruction in question, number two, (combined MAI 17.14 and 11.03 modified) reads in pertinent part as follows:

‘ “Your verdict must be for plaintiff whether or not plaintiff was negligent if you believe:
‘ “Second, defendant knew or by using •the highest degree of care could have known of such position of immediate danger, and
‘ “Third, at the moment when defendant first knew or could have known of such position of immediate danger, defendant still had enough time so that by using the means available to him and with reasonable safety to himself and all others and by using the highest degree of care he could have avoided injury to the plaintiff by slackening his speed, * * *. (Emphasis supplied).” ’

Plaintiff argues that defendant’s duty of lookout was correctly and implicitly included in Instruction No. 2. That defendant’s contrary oral assertion (made in final argument) was misleading and confusing, constituting an impermissible misstatement of the law and misdirection of the jury. We agree with plaintiff’s contention.

The operator of a motor vehicle, as defendant here, in a pedestrian-humanitarian case is under a duty to maintain a lookout ahead and laterally for users of the highway. Williams v. Rickleman, 292 S.W.2d 276, 281[6] (Mo.1956). There is little doubt the humanitarian rule requires defendant to keep a lookout for discoverable peril as in the case at bar. Melton v. St. Louis Public Service Company, 363 Mo. 474, 251 S.W.2d 663, 668[7] (en banc 1952). Plaintiff’s position of discoverable peril is characterized as “position of immediate danger” in the instruction. See MAI 17.14. Defendant’s counsel ignoring the clear requirement of the law deliberately argued, in effect, that since the word “lookout” was not used in the instruction that the instruction “doesn’t charge defendant with negligence and failure to keep a careful lookout.” This led to the prompt objection of plaintiff’s counsel pointing out the language of the instruction “could have known” expresses the legal duty of “lookout.” In response defense counsel stated “that’s your interpretation of lookout, Mr. Kirby.” The court improperly overruled plaintiff’s objection and defense counsel, pressing the advantage provided by the ruling, again referred to the instruction and told the jury “the word ‘lookout’ is not used in here” strongly implying the instruction imposed no such duty on defendant. Defendant’s argument is tantamount to saying, if the law required lookout the court’s instruction would have said so. Such argument conflicted with the court’s written instruction and substantially prejudiced the rights of plaintiff. MAI 17.14, Notes on Use-No. 3, p. 156, equates the phrase “could have known” with “lookout” and states it should be used when there is a duty to keep a lookout. As previously noted, under the circumstances here lookout is a duty Missouri law imposes on drivers using the public roads. Sipes v. Trimble, 506 S.W.2d 353, 355[1] (Mo.1974); Panky v. Clay well, 417 S.W.2d 9, 12[8] (Mo.App.1967).

Misstatements of the law are impermissible in final argument and should be promptly corrected by the court. This proposition is well-stated in Carrel v. Wilkerson, 507 S.W.2d 82, 86[5] (Mo.App.1974):

“While a trial court because of its coign of vantage of the proceedings and their affect on the jury, has a large discretion in permitting, restraining and purging final argument . . . , there is no room for the exercise of judicial discretion on an issue of law.” (Emphasis added).

See also Jones v. Gooch, 453 S.W.2d 653, 655[2] (Mo.App.1970); Penn v. Hartman, 525 S.W.2d 773, 776 (Mo.App.1975).

This is not a question of quarrelsome epithet, invective or sarcasm, nor of argued inference or misstated fact, rather it’s an instance of misstated law, affording no leeway for the exercise of judicial discretion. Under long established principle, the trial judge was required, yet did not, prohibit or correct the improper argument.

Defendant would minimize the statement’s effect, and in his brief argues that any confusion created by the statement “was clarified when counsel for plaintiff objected on the grounds that the phrase ‘could have known’ in the instruction implies, ‘lookout.’ ” This curious contention ignores the fact the trial court’s ruling placed its imprimatur on the statement, effectively telling the jury, plaintiff’s objection was not well-taken. Defendant’s pious argument is quite different from defense counsel’s retort made to plaintiff’s counsel, (who had just objected to the misstatement) “that’s your interpretation of lookout, Mr. Kirby”; or his earlier statement when referring to the instruction “[TJhere is no charge to keep a careful lookout”; or his original statement made before objection “if you listen carefully to the instruction, there was no charge of Mr. Gallion, failing to keep a careful lookout . .”; and when he considered the instruction in the jury’s presence pointing out “it (referring to the Instruction No. 2) doesn’t charge the defendant with . . . failure to keep a careful lookout.” For these improper statements in final argument, the judgment is reversed.

Appellant’s other points concern admissibility of certain evidence and related portions of defendant’s closing arguments. Though perhaps meritorious, their resolution is not required for disposition of the case and as we cannot determine what evidence will be offered or arguments made on retrial, we do not rule the points.

The judgment is reversed and cause remanded for new trial.

WEIER, P. J. and DOWD, J., concur.