text:
    KENTUCKY MOUNTAIN COAL COMPANY, Appellants, v. Eula Mae HACKER et al., Appellees.
    Court of Appeals of Kentucky.
    March 10, 1967.

      A. E. Cornett, Hyden, for appellants.
    William Melton, Hazard, for appellees.
   DAVIS, Commissioner.

This appeal presents questions relating to the proper measure of damages in a real estate trespass. For convenience we shall refer to the appellants as the coal company. The only appellee presenting any issue is Mrs. Eula Mae Hacker, and reference to her will be as the appellee or by her name.

The coal company holds coal mining leases on a large boundary of land, included in which is a 40-acre tract in which the ap-pellee owns the surface title. It is conceded that the coal company has hauled coal across the surface of appellee’s land which it mined from the Virginia Coal and Iron Company’s tract. It is conceded that the coal company had no legal right so to use the surface of appellee’s land. The coal company in this action undertook to condemn a right of way over appellee’s land for a coal hauling way, and the parties have acquiesced in that procedure. KRS 381.580 to 381.620.

The trial judge heard the case without a jury, and awarded appellee $3,625.94 as compensation for the trespass, based upon the amount of coal which the company had already hauled over the appellee’s land, plus $1,000 as the value of the easement over which to haul coal similarly in the future.

In fixing the allowance of $3,625.94 on the first item, the court used the formula of 2‡ per ton for 181,297 tons of coal shown to have been hauled over appellee’s land. There was some evidence heard that lessees and lessors have entered into such agreements in similar situations in the area. In this case, however, there was no such agreement. Although 2‡ per ton may have been customary by private contract, this is not the established measure of damages for this character of injury to real property.

The act of hauling the coal over appellee’s land was a trespass to real estate. Mrs. Hacker did not live on the tract. It appears that Mrs. Hacker had made no use of the surface for the year or two just preceding the trial. The measure of damages in such cases is stated, if the trespass is temporary in nature, as “the depreciation in the rental value of the land during the period of occupancy if it is rented out, but if occupied by the owner it is the diminution in the value of the use of the property.” Cary-Glendon Coal Co. v. Carmichael, 258 Ky. 411, 80 S.W.2d 29, 30; Price Brothers v. City of Dawson Springs, 190 Ky. 349, 227 S.W. 470; Edwards v. Lee’s Adm’r, 265 Ky. 418, 96 S.W.2d 1028. In this case, since the land was neither occupied nor rented out, the reasonable rental value of the use is the proper measure of damages. The trespass in the present case was temporary, in that it could have been abated or discontinued at any time, just as was so in Cary-Glendon Coal Co. v. Carmichael, 258 Ky. 411, 80 S.W.2d 29, 30.

It is to be observed that the Cary-Glendon opinion, just mentioned, dealt with a situation similar to the one at bar; in that case, after correctly stating the measure of damages, the court did not follow it. Indeed, in Cary-Glendon the court approved a calculation of damages for this type of trespass on a basis of 1½⅜⅞ per ton. It appears that the holding there was influenced by previous litigation in the same dispute, and that there was an actual lease between the parties. However that may be, to the extent that Cary-Glendon Coal Co. v. Carmichael, 258 Ky. 411, 80 S.W.2d 29, may be in conflict with the holding in the present case, it is overruled.

Since the trial court did not base the award of damages upon the proper measure of damages, it follows that the award of $3,625.94 must be set aside.

As respects the award of $1,000 for the easement, we find that the record contains no evidence to support the amount of the award. It is plain that the measure of damages as to the easement is the difference in the before and after market value of the appellee’s surface caused by the easement. The only evidence relating to that point indicates that a difference in market value of $200 had occurred by reason of the easement. Appellee has misconceived our opinion in Adams Construction Co. v. Bentley, Ky., 335 S.W.2d 912. In appellee’s brief is found this argument, based on appellee’s construction of Adams Construction Co. v. Bentley, supra:

“It is the contention of the appellee that the trial court had no competent evidence as to the value of the property and was forced to draw his conclusion from the entire record and from his own knowledge by being acquainted with the property.”

We did not enunciate any such rule when it was written in Adams Construction Co. v. Bentley, supra:

“But in any event, there must be introduced in evidence some tangible figure from which the value of the use reasonably can be deduced, else the court and jury are left to draw entirely on their own experience aliunde, or upon naked speculation.” Id., 335 S.W.2d at page 914.

We reiterate that the evidence must be in the record to support a finding of fact; the court or jury may not supply such absent evidence by drawing upon experience aliunde, or by naked speculation.

In the present state of the record, we are not willing to hold that appellant is entitled to a final judgment awarding only $200 for the easement. The court had some evidence to support an award of more than $200 for the easement, and some evidence warranting recovery in some amount for the earlier trespasses. Deference to a just decision requires that the matter be re-examined by the trial court in light of our holding herein.

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

All concur.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    MOTORS INSURANCE CORPORATION, Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, James C. Grugin, Scott Oldsmobile, Incorporated, Appellees.
    Court of Appeals of Kentucky.

    March 10, 1967.
    Freeman B. Blackwell, Louisville, for appellant.
    James P. Hanratty, W. E. Rogers, III, Hopkinsville, for appellees.
   CULLEN, Commissioner.

A motion for appeal previously having been sustained, we have before us the appeal of Motors Insurance Corporation from a judgment holding it liable to the appellees Scott Oldsmobile, Incorporated, and James C. Grugin in the amount of $1277 (less certain credits) under a collision insurance policy. The policy was issued to Scott Oldsmobile covering automobiles “owned" and “held for sale” by it. Motors Insurance Corporation maintains that the automobile in question, the damages to which furnish the basis of the claim under the policy, had been sold and delivered to ap-pellee Grugin before it was damaged (in an accident which occurred when Grugin’s son was driving the car), and therefore the automobile was not “owned” or “held for sale” by Scott Oldsmobile at the time the damage occurred.

Grugin’s son smashed up the car on a Friday night. Earlier in the day Grugin and Scott Oldsmobile had agreed on a “trade,” and each testified that it was understood that the trade was final and firm. Grugin turned over his old car to Scott, and Scott gave Grugin unqualified and unconditional possession of the new car. All that remained was for title papers to be processed and for Grugin to return the next day with a check for the cash due on the trade. After the accident Grugin did pay the cash and the sale and title papers were fully executed and delivered.

Grugin and Scott are in full agreement that the car was “sold” to Grugin on the day of the accident. However, Grugin’s personal insurer, the appellee Safeco Insurance Company, denied coverage on the ground that “ownership” had not passed to Grugin and therefore Motors Insurance Corporation, as Scott’s insurer, was liable. The instant lawsuit was brought to determine which of the two companies was liable. The circuit court adjudged that the automobile was “still owned” by Scott “despite any oral negotiations.”

We think the judgment is clearly erroneous. There had been a physical delivery of the automobile to Grugin as a purchaser. Under the Uniform Commercial Code, KRS 355.2-401, title passed at the time and place of such delivery. Also under the Code, KRS 355.2-201, it is provided that it is not necessary that a contract of sale be in writing in order to be enforceable with respect to goods “which have been received and accepted.”

The fact that the title papers had not been delivered did not require that Scott still be considered the “owner” within the meaning of the insurance policy. See Campbell v. State Farm Insurance Co., Ky., 346 S.W.2d 775; Siler v. Williford, Ky., 350 S.W.2d 704.

Safeco maintains that Rash v. North British & Mercantile Ins. Co., Ky., 246 S.W.2d 990, is controlling. We think not. There the automobile was not delivered to the customer as a purchaser or with any intent to pass title; the customer simply was permitted to use the automobile temporarily, as a bailee, for the purpose of trying to find a source of funds which would put him in shape to become a purchaser.

If, as between Scott and Grugin, ownership had passed and an effective sale had been accomplished, obviously the automobile was not thereafter “owned” or “held for sale” by Scott within the meaning of the Motors Insurance policy. The policy does not undertake to determine what constitutes ownership; necessarily that must be determined by the law of sales.

The judgment is reversed as it relates to Motors Insurance Company with directions to enter judgment dismissing the claims against Motors Insurance Company.

All concur.


text:
    Stella DARDEEN and Joseph Dardeen, Appellants, v. The GREYHOUND CORPORATION, Southern Greyhound Lines, Inc., Clay Moore Hardy and Alvin Thomas Hatten, Appellees.
    Court of Appeals of Kentucky.
    March 10, 1967.

      Berling, Funk, Neace & McCarthy, Florence, for appellants.
    Stoll, Keenon & Park, Lexington, L. M. Ackman, John Lane Ackman, Williams-town, for appellees.
   CULLEN, Commissioner.

As a result of a collision between a Greyhound Bus and a dump truck of the Kentucky Department of Highways the appellant Stella Dardeen was injured. She and her husband ■ (the appellant Joseph Dar-deen) filed a claim with the Kentucky Board of Claims against the Highway Department. A few days later the Dar-deens also filed suit in the circuit court against the appellee Greyhound Corporation, owner of the bus; the appellee Clay Moore Hardy, driver of the bus; and the appellee Alvin Thomas Hatten, driver of the dump truck. The Board of Claims gave an award of some $700 in favor of the Dardeens. They were not satisfied with it and appealed the award to the circuit court (which appeal apparently is still pending). However, as soon as the award was entered the appellees herein moved to dismiss the action against them, on the ground that the entry of the award against the Highway Department as one tortfeasor barred further prosecution of the action against them as other tortfeasors. The circuit court sustained the motion and entered judgment dismissing the action, from which judgment the Dardeens have appealed.

As to all of the appellees except the dump truck driver the judgment is erroneous. Mere entry of the award against the Highway Department did not raise a bar precluding action against the other tort-feasors; the bar would arise only from satisfaction of the award. Sherwood v. Huber & Huber Motor Express Company, 286 Ky. 775, 151 S.W.2d 1007, 135 A.L.R. 263; Bach v. Bach, Ky., 288 S.W.2d 52; Prosser on Torts, 3rd Ed., Ch. 8, sec. 45, p. 267.

The judgment would be erroneous also as to Hatten, the dump truck driver, were it not for the provision of the Board of Claims law,' in KRS 44.160, that “Any action prosecuted to award or judgment under the provisions of KRS 44.070 to 44.-160 shall preclude the right of a claimant to sue the Commonwealth, its departments or agencies, or its officers, agents or employes in any other forum.” In plain language this provision makes the entry of the award against the Highway Department a bar to suit against its employe, Hatten. We find nothing unconstitutional in this statute. Cf. Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648. Therefore it requires the dismissal of the action against Hatten.

To the extent that it dismisses the action against Hatten the judgment is affirmed; in all other respects it is reversed with directions for further proceedings in conformity with this opinion.

All concur.


author: SCOTT REED, Special Commissioner.

text:
    W. R. R. LA VIELLE et al., Appellants, v. Robert J. SEAY, Trustee et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    As Modified Sua Sponte March 31, 1967.

      Thomas C. Carroll, Louisville, for appellants.
    Charles E. Keller, Louisville, for appel-lees.
   SCOTT REED, Special Commissioner.

This is an appeal by the defendants in the trial court from a final judgment permanently enjoining them from erecting on their residential property a 64-foot tower to be used for domestic television reception and for “ham” radio transmitting.

The appellees, who were the plaintiffs in the court below, instituted this action alleging that the defendants were acting in violation of certain restrictive covenants applicable to a subdivision and that the plaintiffs, as representatives of the original subdivider, sought enforcement by injunction of these restrictions.

The plaintiffs sought a restraining order without notice which was granted. The defendants then filed an answer and counterclaim. This pleading alleged that their proposed radio and TV tower was not covered by the restrictions relied upon by the plaintiffs; that the plaintiffs, by not enforcing the claimed restriction against like projects, had estopped themselves from the right to enforce such claimed restriction; that the proposed tower would be used in important civil defense work necessary to the national defense, and that the claimed restrictions should not be enforced as being violative of the public interest. As a matter of defensive pleading in the answer the defendants contended that the restraining order was wrongfully issued. The counterclaim consisted of a plea for damages for the wrongful issuance of the restraining order.

The plaintiffs, after filing a reply to the defendants’ counterclaim, simultaneously filed a document styled “Motions for Findings of Facts and Conclusions of Law.” The defendants filed a motion for summary judgment. Neither the plaintiffs’ “Motions for Findings of Facts and Conclusions of Law” nor the defendants’ motion for summary judgment was accompanied by any evidentiary material. Apparently they were related to a pre-trial conference but the record is silent concerning testimony or stipulations made at the conference?,. It is fair to state that as a part of the plaintiffs’ motion herein described, the first paragraph of it did move the court “to dismiss the answer as failing to constitute a defense.”

Upon this state of the record, the trial court filed “Findings of Fact and Conclusions of Law and Opinion.”

The trial court, in effect, found that the proposed tower did violate the restrictions; that the plaintiffs were not estopped to enforce the restrictive covenants and that plaintiffs were entitled to a permanent injunction prohibiting the erection of the proposed radio and TV tower “until they have complied with the existing restrictions as they may appear of record or until further orders of a court of competent jurisdiction.”

After this disposition by the trial court the defendants tendered an amended answer which expanded upon their previous plea that the claimed restriction had been waived and abandoned by inaction on the part of the plaintiffs and by permitting like projects to be completed in the subdivision.

There appears to have been a battle of affidavits; on the one hand, the defendants claiming waiver and abandonment, and on the other hand, the plaintiffs claiming no abandonment of the restrictions, all going to specific conditions existing on various lots in the subdivision.

Then the plaintiffs, who had already received a favorable disposition from the trial court, filed a motion for summary judgment.

The trial court refused the tendered amended answer of the defendants and entered final judgment.

The record illustrates confusion as to the proper scope of summary judgment and we are confronted with the inescapable fact that at the time the trial court made its disposition of this action it had nothing but pleadings before it.

In this state of the record, we are of the opinion that the correct procedure .is that if a motion for summary judgment is made by a defendant solely on the basis of the complaint, the motion is functionally equivalent to a motion to dismiss for failure to state a claim under CR 12.02(6), the complaint should be liberally construed in favor of the complainant, the facts alleged in the complaint must be taken as true, and the motion for summary judgment must be denied if a claim has been pleaded.

If the motion is made either by the claimant or by the defending party solely on the basis of the complaint, answer, and other pleading, if any, the motion is functionally equivalent to a motion for judgment on the pleadings under CR 12.03. The motion should be denied if, as against the moving party, the pleadings raise any issue of material fact. See Clay, CR 56.03, p. 165, and Clay, CR 12.03, p. 203; see also, Moore’s Federal Practice, Sec. 56.11(2), pp. 2152, 2153.

Thus, at the time the trial court undertook to finally dispose of this case by operation of our procedural rules it actually had before it a defendants’ motion to dismiss the complaint for failure to state a claim and plaintiffs’ motion for judgment on the pleadings.

Our review of the complaint discloses that taking the facts alleged in it as true it properly stated a claim and that the action of the trial court in overruling defendants’ wrongly denominated motion for summary judgment was proper.

As to the plaintiffs’ so-called “Motion for Findings of Facts and Conclusions of Law and to dismiss defendants’ answer as failing to constitute a defense,” quite another matter is presented. The action of the trial court in purporting to sustain this plea by the plaintiffs was erroneous if the pleadings raised any issue of material fact.

Our review of the defendants’ answer discloses that material issues of fact were raised by it particularly when we keep in mind, as we must, that our current method of procedure is one of notice pleading as contrasted with fact pleading.

The defendants’ answer clearly gave notice to the adverse party and to the trial court that they were not only contending that the restrictive covenants themselves were unenforceable against this particular use, but that by reason of factual occurrences the plaintiffs were prevented by the doctrine of waiver and abandonment from enforcing these restrictions against the defendants’ proposed project.

While it has been recognized that the basic principles applicable to summary judgment procedure generally apply to actions for injunctive relief, it is also true that summary judgment, which the trial court undertook to grant in this case, has been described as a drastic remedy. It is also^geherally recognized that injunction Is an extraordinary remedy which will not be granted except upon a clear showing of an existing equitable right. Thus, we are confronted in the instant case with an instance of the exercise of extraordinary relief in the form of a permanent injunction by a drastic remedy in the form of summary judgment. See Moore’s Federal Practice, Sec. 56.17(30) p. 2558; Barron & Holtz-off’s Federal Practice and Procedure, Vol. 3, Sec. 1232.3, p. 116; Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760; and Conley v. Hall, Ky., 395 S.W.2d 575.

We are persuaded that a permanent injunction should be granted by means of summary judgment only in those cases where the showing is very clear and convincing and that in such case as we are confronted with here, to afford relief by means of a permanent injunction where the actual question to be determined is whether or not a judgment on the pleadings should be granted and where as here the pleadings under the notice theory of pleading particularly raised factual issues, the determination to grant a permanent injunction must be characterized as unwarranted.

The foregoing disposition will become clearer when we consider now the substantive law side of the case, having expressed ourselves that the judgment was procedurally erroneous.

The subdivision restrictions with which we are here concerned are very detailed in their requirements as to specific elements. For instance, not only is each lot confined to one dwelling house for a single family, but even porches, fences, vegetable gardens and hedges are undertaken to be regulated with specific limitations or standards applied to these various uses.

The particular restriction with which the present controversy is concerned, is on the other hand, general in its statement in that it provides that since it is the intention of the grantors to restrict their subdivision to only residences of “real architectural merit, good design and suitable material,” the plans and specifications for the erection or alteration of any building, fence, wall “or other structure” must be approved, in writing, by the original grantors or their authorized representatives. This restriction further provides that the location and approximate cost of any structure must be set forth and accompanied by a diagram setting forth the exact location of all proposed “structures” on the lot. The next provision is a direction that, in this instance, the grantors or their representatives “have the right to refuse to approve” any structure applied for which is not deemed “by them as suitable or desirable in their opinion.” The particular restriction goes on to provide that in passing on any proposed structure the grantors or their representatives shall have the right to take into consideration the suitability of the structure to the site, the harmony thereof with the surroundings, and the effect of the structure on “the outlook from adjacent or neighboring property.”

The pleadings reveal, in the instant case, that the plaintiffs, as authorized representatives of the grantor, seek to prohibit the defendants’ radio and TV tower. They characterize it as unsightly and violative of the general plan of the subdivision. Thus, it would be a useless thing to require defendants to submit plans of the proposed structure to plaintiffs for their decision. That decision has already been made, as is clearly disclosed by the pleadings.

We have recently had occasion to reconsider and restate the law in this jurisdiction concerning the construction and enforceability of restrictive covenants in deeds. In Mascolino v. Noland & Cowden Enterprises, Inc., Ky., 391 S.W.2d 710, we pointed out that in construing and enforcing restrictions on real property the court must seek the intention of the grantor or creator of the restrictions from the language used, considered in light of such factors as the general scheme of the subdivision, and that as a matter of judicial construction the court may not substitute what the grantor may have intended to say for the plain import of what he said. In McMahan v. Hunsinger, Ky., 375 S.W.2d 820, we established the proposition that where a general scheme and plan of a subdivision is present it is an important factor to consider in determining the purpose and intent of the restriction. We held in Rieger v. Wessel, Ky., 319 S.W.2d 855, that the intention to impose a general plan of development on a subdivision must be determined as of the time the subdivision was platted and lots were first sold therein.

Applying the foregoing rules to the instant case, we are of the opinion that a radio and TV tower is a “structure” within the meaning of the word as used in the subdivision restrictions and the question of whether or not radio and TV towers were known or unknown at the time of the creation of the restrictions is irrelevant. It was the manifest intent of the creator of the restrictions to adopt a general, uniform scheme for the subdivision so as to undertake to control structures of whatever nature .on lots in the subdivision. But this does not answer one of the serious problems posed in the instant case.

In all of our former opinions concerning this question of subdivision restrictions we have considered the applicability of the particular restriction to a particular proposed project or use and the question was whether or not the particular project or proposed use fell within the language of the restrictive covenant or whether or not the creator of the restriction had sufficiently manifested his intent to prohibit such activity.

In the instant case, however, we are confronted squarely with the proposition that even though the proposed project be covered by the language of the restriction, discretion is granted to the creator of the restriction, or his authorized representatives, to permit or refuse the proposed project. In the case of Ladd v. Pittsburgh Consolidation Coal Co., 309 Ky. 405, 217 S.W.2d 807, we considered an instance of where an owner of a city lot sold it for business purposes, with a restriction which provided for erection of buildings and operation of needed business thereon, subject to the written approval of the grantor. We held such restriction valid but noted that the consent of the grantor could not be unreasonably withheld without legal recourse on' the part of the party subject to the restriction.

It is noted in an Annotation entitled “Validity, Construction and Effect of Restrictive Covenant Requiring Consent of Third Person to Construction on Lot,” in 19 A.L.R.2d 1274, at p. 1294, that a power reserved by the common grantor of lots in a subdivision to consent or not consent to particular buildings on particular lots is generally considered to be reasonable and valid. In the same Annotation, however, it is pointed out that the exercise of the power in a particular case must be reasonable and not arbitrary.

The determination of whether or not the exercise of the power to permit or refuse has been reasonable or arbitrary is a factual question to be determined in the light of the circumstances, including whether or not the proposed project or use is or is not consistent with the general surroundings in the subdivision development, is in harmony with other buildings and structures therein, and is in compliance with the specific restrictions set out in the plan of development for the subdivision. See 19 A.L.R.2d, at pp. 1294 and 1295.

In the instant case, the defendants also alleged that like structures had been permitted in the subdivision and that the plaintiffs had failed to enforce the restrictions against them.

We recognized in Bagby v. Stewart’s Ex’r, Ky., 265 S.W.2d 75, and in Hardesty v. Silver, Ky., 302 S.W.2d 578, that the right of enforcement of such subdivision restrictions may be lost by a general change in the character of the neighborhood to which the covenant applies. This, again, is a factual determination, as not only the fact of waiver and abandonment must be considered, but its extent.

The defendants’ argument that the proposed use is necessary in the public interest by reason of its civil defense characteristics would again appear to be an issue of fact. It appears to us that to refuse enforcement of restrictive covenants on the ground that the public interest demanded their nonenforcement would require a clear and convincing showing of the strong necessity for protection of the public interest in the particular case.

The holding of the lower court that the proposed use would be in violation of the zoning laws of the City of Louisville was erroneous in that it was not raised as an issue.

The defendants pleaded that the zoning laws did not prohibit their proposed structure and that this was evidence that the original restrictions did not cover the proposed use. The plaintiffs pleaded that even though the zoning laws did not prohibit the proposed use, this fact did not destroy the enforceability of the restrictive covenants. We agree with the plaintiffs’ contentions in this respect, See City of Richlawn v. McMakin, 313 Ky. 265, 230 S.W.2d 902; Parrish v. Newbury, Ky., 279 S.W.2d 229.

Assuming that it is ultimately determined in the instant case that the proposed project of the defendants cannot be prohibited by virtue of the particular restrictive covenants present here, our examination of the zoning ordinance cited by the trial court reveals that it would then again be a factual issue as to whether or not this particular proposed use would violate such ordinance and in the absence of some evi-dentiary material, the question could not be determined on the present pleadings.

We, therefore, hold that the trial court properly overruled defendants’ motion for a summary judgment. We further hold that the trial court erred in sustaining plaintiffs’ motions for judgment on the pleadings and further erred in refusing to allow defendants to amend their answer. In our opinion, this case should be tried on its merits in the light of the principles enunciated herein.

Finally, it appears that the plaintiffs were granted a restraining order without notice. No hearing was held on a motion to dissolve the restraining order as such nor did the plaintiffs move for a temporary injunction. Therefore, the restraining order remained in full force and effect until the final judgment herein. The final judgment which we are reversing granted a permanent injunction and therefore, we conclude that our disposition of this appeal should be without prejudice to the rights of the plaintiffs to apply for temporary injunctive relief to maintain the status quo until this action can be tried on its merits and properly disposed of. The parties should proceed in this regard as is provided by the various sections of CR 65.

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


author: PER CURIAM.

text:
    Charles L. PEARCE, Petitioner, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Respondent.
    No. A-11538.
    Supreme Court of Texas.
    March 8, 1967.
    Rehearing Denied March 8, 1967.
    Mullinax, Wells, Mauzy, Levy & Richards, Otto B. Mullinax, Dallas, for petitioner.
    Burford, Ryburn & Ford, Logan Ford and John L. Estes, Dallas, for respondent.
   ON MOTION FOR REHEARING OF APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This is a workmen’s compensation case. The petitioner filed a claim with the Industrial Accident Board of the State of Texas, claiming that he had sustained an eye injury while working in the course of his employment. Thereafter, the petitioner and the respondent, insurer, entered into a compromise settlement agreement for a consideration of $2,570.00. The agreement, which was approved by the Industrial Accident Board, included settlement of all future liability claims for medical services. Attached to the compromise settlement agreement, as an exhibit, appears a statement made by petitioner, reading in part:

“I understand this claim is being settled on a questionable basis because the retinal tear did not appear until after 6 months following my injury and I was suffering from eye trouble before my injury of January 23, 1962.”

On November 15, 1963, the petitioner filed a second claim with the Board, based upon the same accident, for additional hospital, medical and surgical expenses, incurred after the compromise settlement agreement. Petitioner argued before the Board and later on appeal to the trial court that the compromise settlement agreement which included future medical expenses, etc. was ineffective in that such agreement was in contravention of the provisions of Article 8307, Sec. 5, Vernon’s Annotated Civil Statutes, especially that part of the article which states:

“Notwithstanding any other provision of this law, as amended, no award of the Board, and no judgment of the court * * * shall include in such award or judgment any cost or expense of any such item [being the hospital and medical items stated in Sec. 5] not actually furnished to and received by the employee prior to the date of said award or judgment.” [Emphasis added.]

Petitioner also relies upon Article 8306, Sec. 14, wherein it is provided that “[n]o agreement by an employé to waive his rights to compensation under this law shall be valid.” Petitioner also argues that Art. 8307, Sec. 5, supra, impliedly amended Art. 8307, Sec. 12 which authorizes the Board to approve compromise settlement agreements entered into between the parties. The effect of this argument is that Section 5 impliedly repealed Section 12.

“Notwithstanding any other provision of this law, as amended, no award of the Board, and no judgment of the court, having jurisdiction of a claim against the association for the cost or expense of items of medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances furnished to an employee under circumstances creating a liability therefor on the part of the association under the provisions of the law, shall include in such award or judgment any cost or expense of any such items not actually furnished to and received by the employee prior to the date of said award or judgment. The first such final award or judgment rendered on such claim shall be res judicata of the liability of the association for all such cost or expense which could have been claimed up to the date of said award or judgment and of the issue that the injury of said employee is subject to the provisions of this law with respect to such items, but shall not be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment. After the first such final award or judgment, the Board shall have continuing jurisdiction in the same case to render successive awards to determine the liability of the association for the cost or expense of any such items actually furnished to and received by said employee not more than six (6) months prior to the date of each such successive award, until the association shall have fully discharged its obligation under this law to furnish all such medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances to which said employee may be entitled; provided, each such successive award of the Board shall be subject to a suit to set aside said award by a court of competent jurisdiction in the same manner as provided in the case of other awards under this law.” [Emphasis added.]

The trial court sustained respondent’s motion for summary judgment on the ground that petitioner’s cause of action was “barred by a compromise settlement agreement heretofore entered into between the parties.” The Court of Civil Appeals has affirmed that judgment. 403 S.W.2d 493.

Petitioner in his motion for rehearing on his application for writ of error complains only of the holding of the Court of Civil Appeals on the question of “ * * * whether an agreement for compromise settlement of a claim under the [Workmen’s Compensation] Act, which specifically provides that it includes liability of the insurer for future medical aid, hospital services, nursing, chiropractic services and medicines incurred after date of approval of the settlement by the Industrial Accident Board, precludes the employee from subsequently claiming and recovering medical expenses necessarily incurred by him in connection with a recurrence of the physical disability made the subject of the original claim.”

The Court of Civil Appeals in deciding the question adversely to petitioner, has held that Section 5, supra, by its terms is restricted to awards of the Board and judgments of a court of law, and that the enactment of Section 5, supra, did not have the effect of repealing Article 8307, Sec. 12, supra; thus, holding that Sec. 5, supra, refers only to awards and judgments and has no application to a compromise settlement agreement approved by the Board, as provided in Article 8307, Sec. 12, supra. We have concluded that the Court of Civil Appeals, in so holding has correctly interpreted the statutes involved herein. Therefore, we approve its holding.

The petitioner argues that this being a case of first judicial impression in Texas, we should grant the writ and determine the question. This Court is not disposed to grant a writ of error where no error of law has been committed by the intermediate court.

Since other questions were considered by the Court of Civil Appeals, the application for writ of error was refused n.r.e., and the motion for rehearing is overruled.

      . Art. 8307, Sec. 5 of the Workmen’s Compensation Act:

      . All statutory references hereinafter contained are to Yernon’s Annotated Texas Civil Statutes.

      . Article 8307, Section 12: * * *
      “Where the liability of the association or the extent of the injury of the em-ployé is uncertain, indefinite or incapable of being satisfactorily established, the board may approve any compromise, adjustment, settlement or commutation thereof made between the parties.”


author: BELCHER, Judge.

text:
    Novalee GOODACRE, Appellant, v. The STATE of Texas, Appellee.
    No. 40253.
    Court of Criminal Appeals of Texas.
    March 22, 1967.
    Saunders & Caldwell, by Gene Caldwell, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for driving while intoxicated; the punishment, seven days in jail and a fine of $100.

The appellant attacks the validity of the complaint upon which the information is based on the ground that no facts were stated therein showing probable cause, and that probable cause could not have been established before a magistrate as she never appeared before a magistrate.

The necessity of stating facts constituting probable cause in a complaint or in connection therewith for the issuance of an arrest warrant has no application when it is used as a basis of a criminal prosecution. Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113.

The record contains appellant’s motion alleging that she objected to being put to trial for the reason that she had not been arraigned as required by Art. 26.01, Vernon’s Ann.C.C.P. The motion was filed January 20, 1966, denied by the court, and to such action the appellant excepted.

Error is urged on the ground that the trial court erred in overruling such motion, wherein she objected to being put to trial because she had not been arraigned.

It was stipulated that after the filing of the complaint and information on November 12, 1965, this cause was called for arraignment on December 17, 1965, and when appellant’s name was called she came forward in person, with counsel, and identified herself as the person charged in said information but it was not then read to her; that at this time the court asked the appellant for her plea, and her counsel announced that she refused to enter any plea, which the court noted on the docket, announced that he was entering a plea of not guilty for her, and set the case for trial on the merits for January 18, 1966; and that on January 20, 1966, both parties announced ready for trial, the information was read to the jury and the appellant entered a plea of not guilty.

The judgment recites that on January 20, 1966, the appellant, with counsel, appeared in person and announced ready for trial.

There is no showing that appellant did not have a copy of the information or that she had not read it. The stipulation reveals that she came forward when her name was called by the court and identified herself as the person charged in the information. It is evident that she was not deprived of notice of the charges against her. The record sufficiently shows that the statutory requirements of arraignment were complied with. No error is perceived.

The judgment is affirmed.


author: DICE, Judge.

text:
    Larry MILLER, Appellant, v. The STATE of Texas, Appellee,
    No. 40061.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.
    Rehearing Denied April 5, 1967.

      A1 Clyde, Ft. Worth, for appellant.
    Alton R. Griffin, Dist. Atty., Roy L. Merrill, Asst. Dist. Atty., Lubbock, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for embezzlement; the punishment, six years.

Trial was before a jury, upon appellant’s plea of guilty.

Notice of appeal was given on April 27, 1966.

At the trial, the state first introduced evidence to show appellant’s guilt of the offense charged. At the conclusion of the testimony the jury was instructed by the court to retire and return a verdict finding appellant guilty but not to assess punishment at that time.

Following return of the jury’s verdict of guilty, appellant elected and requested that the same jury assess the punishment.

Thereupon, the state and appellant offered evidence bearing on the question of punishment.

The jury then retired and returned its verdict assessing appellant’s punishment at six years’ confinement in the penitentiary.

Two grounds of error are presented by appellant in his brief filed in the trial court.

He first contends that his conviction cannot stand because the state failed to prove the offense of embezzlement. In this connection, it is urged that the state failed to establish the corporate existence of the company from which the money was alleged to have been embezzled.

We need not pass upon the sufficiency of the evidence to prove the offense, in view of appellant’s plea of guilty before a jury in the case.

It is the established rule that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the state is for the jury’s benefit in fixing punishment. Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460.

The requirement in Art. 1.15 of the Vernon’s Ann. 1965 Code of Criminal Procedure that evidence be offered by the state showing the guilt of a defendant is applicable only in those cases where the defendant, upon entering a plea of guilty in a felony case less than capital, waives his right of a trial by jury.

Appellant next contends that reversible error was committed in the trial by use of the alternate procedure provided in Art. 37.07 of the 1965 Code of Criminal Procedure in determining his guilt and the punishment to be assessed. Rojas v. State, Tex.Cr.App., 404 S.W.2d 30, is relied upon in support of the contention.

While in Rojas it was recognized that where there is a plea of guilty before the jury Art. 37.07, supra, is not applicable and no reason or necessity exists for a separate trial as to punishment, the fact that a separate hearing was held in the present case does not present reversible error. No objection was made by appellant to the manner in which his guilt and punishment were determined by the jury in the two separate hearings. Further, after return of the jury’s verdict of guilty, appellant elected, m writing, to have the same jury assess the punishment. Clearly, he waived his right to have his guilt adjudicated and punishment assessed by the jury in one hearing. The contention is overruled.

The judgment is affirmed.


text:
    Ex parte Anthony Charles LABUE.
    No. 40132.
    Court of Criminal Appeals of Texas.
    March 15, 1967.
    Will Gray, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an original application for a writ of habeas corpus on the ground that the relator had been denied the right to bail.

It has now been made known to this court that by agreement a bond in the amount of $6,000 has been set. Therefore, his claim of denial of his right to bond has become moot.

The application for writ of habeas corpus is dismissed.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Nora E. BARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 40018.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1967.
    Rehearing Denied March 1, 1967.
    Second Rehearing Denied April 5, 1967.

      No attorney for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal from an order revoking probation in a misdemeanor case.

Upon her plea of guilty to the offense of obtaining groceries by the giving and drawing of a worthless check, appellant was on October 29, 1965, adjudged guilty and her punishment was assessed by the court at six months in jail. Her application for probation was granted and she was placed on probation for a period of two years, conditioned among other things that she commit no offense against the laws of the State of Texas and that she report to the Probation Officer as directed by him or his assistants.

On April 28, 1966, motion was filed by the Criminal District Attorney and the Adult Probation Officer alleging that appellant had violated such terms of her probation and warrant was issued.

After hearing to determine whether probation should be continued or revoked, judgment was rendered finding that appellant had viqlated the terms and conditions thereof, in that she failed to report to the Probation Officer as directed by him and his assistants, and that she committed an offense against the laws of Texas.

This appeal is from the judgment revoking probation upon such findings and the sentence pronounced ordering that appellant be confined in the county jail for three months.

The sole question to be decided by this Court is whether there is “a clear showing of abuse of discretion by the revoking court.” Art. 42.13, Section 8(a) C.C.P. (formerly codified as Art. 784a Vernon’s Ann. C.C.P.)

The court’s findings, upon which he revoked appellant’s probation but reduced the punishment from six months to three months, were predicated upon the following proof.

Appellant was directed to report to the probation officer between the first and tenth day of each month. She complied with this requirement until April 1966. The office of the probation officer was not open on Saturday, April 9th, or Sunday April 10th. The undisputed evidence shows that appellant reported on Monday, April 11th.

Appellant gave a check in the sum of $9.89 dated March 23, 1966, payable to Piggly Wiggly No. 3 Grocery Store, which she signed “Mrs. Leroy Whaley.” The check was drawn on the Citizen’s National Bank. The bank refused payment and returned the check to the grocery store with the notation “signature not authorized.”

The presumption of intent to defraud arising under the statute (Art. 567b Vernon’s Ann.P.C.) was not applicable because the required notice was not given.

The undisputed evidence was that appellant had married Leroy Whaley who had an account in the bank on which the check was drawn, and that there was on deposit in said account sufficient funds to cover the check, part of which was earned by appellant and in all of which she had a community interest.

The evidence further reflects that, though the bank had no notice thereof, appellant had been authorized by her husband to give a check for groceries and he was not contacted about the check being returned unpaid.

Under the record, we find that the trial court abused his discretion in revoking probation.

The judgment is reversed and the cause remanded.

OPINION ON APPELLEE’S MOTION FOR REHEARING

ONION, Judge.

On appellee’s motion for rehearing, it is urged for the first time that the appeal in the case at bar should be dismissed because notice of appeal was not given within ten days after sentence was pronounced, as required by Art. 44.08(c), Vernon’s Ann. C.C.P., and there is nothing in the record to show that the court, for good cause shown, permitted the giving of such notice after the ten days allowed had expired.

With appellee’s contention we cannot agree.

Sentence was pronounced on May 10, 1966. On the same day an appeal bond, in the amount of $1,000.00 was approved by the trial court.

The notation “Notice of Appeal to the Court of Criminal Appeals was given in open court” appears in the transcript of the court reporter’s notes of the trial proceeding. Such notation together with the trial court’s approval of the appeal bond on the day sentence was pronounced, and his subsequent approval of the record on September 14, 1966, which included said notation, is deemed sufficient to show that notice of appeal was given on May 10, 1966.

Article 44.08(a), V.A.C.C.P., reads as follows:

“It shall be necessary for defendant, as a condition of perfecting an appeal to the Court of Criminal Appeals, to give notice of appeal. This notice may be given orally in open court or may be in writing filed with the clerk. Such notice shall be sufficient if it shows the desire of defendant to appeal from the conviction to the Court of Criminal Appeals”

Section (c) of Article 44.08, supra, provides in cases such as this that “such notice shall be given or filed within ten days after sentence is pronounced.”

Section (d) of the same Article reads as follows:

“The record on appeal will be deemed sufficient to show notice of appeal was duly given if it contains written notice of appeal showing a date of filing within the time required by law or if the record contains any judgment or sentence or other court order or docket entry by the court showing that notice of appeal was duly given.”

Section (d) of Article 44.08, V.A. C.C.P., purports to set forth what will be deemed to be sufficient to show notice of appeal in the record on appeal, but we do not construe said section as the exclusive method of giving notice of appeal or as a limitation upon the language of Sections (a) and (c).

The procedure for giving notice of appeal was liberalized by the provisions of Article 44.08, V.A.C.C.P., 1965, and no longer is it necessary that notice of appeal be actually entered of record on the minutes of the court before it is deemed sufficient. See former Article 827, C.C.P., 1925.

It is true that in Breakwell v. State, 78 Tex.Cr.R. 406, 181 S.W. 727, a recital in the recognizance on appeal that appellant appear from day to day, etc., in order to abide the judgment of the Court of Criminal Appeals was held insufficient to constitute a notice of appeal. Breakwell, supra, can be easily distinguished from the case at bar because the recital in the recognizance was the only notice of appeal appearing in the record, and the decision was rendered while the former article was in effect.

In its motion for rehearing the ap-pellee urges that even if notice of appeal were given within ten days after sentence the transcript of evidence cannot be considered by this Court because it was filed more than 90 days after the giving of such notice. It has been noted that the trial judge approved the record on September 14, 1966. Article 40.09, Section 3, V.A.C.C.P., reads in part as follows:

* * * and the approval of the record after the expiration of the time provided by law for its approval shall be sufficient proof that the time for filing the transcription was properly extended, and the transcription so filed shall be construed as having been filed within the time required by law.”

Appellee’s motion for rehearing is overruled.


text:
    James Logan MANNING, Appellant, v. The STATE of Texas, Appellee.
    No. 40109.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1967.
    Rehearing Denied March 29, 1967.
    Harold J. Fleming, Dallas, for appellant.
    Henry Wade, Dist. Atty., James F. Law and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on September 8, 1965, appellant was found guilty of driving while intoxicated and his punishment was assessed at a fine of $100 and thirty days in jail.

Probation was granted the appellant for a period of one year from September 8, 1965. One of the nine conditions of his probation was that he commit no offense against the laws of this state.

The criminal district attorney filed a motion to revoke probation alleging that appellant had, on March 14, 1966, and during the period of his probation, violated a condition thereof in the following manner:

“The Defendant did then and there Drive a Motor Vehicle Upon a Public Road While Intoxicated in Dallas County, Texas.”

Officer Henke, while testifying at the revocation hearing, identified the appellant as the person he saw driving an automobile upon a public street in Dallas on March 14, 1966. He testified that after the appellant had stopped his automobile he observed him walk, heard him talk, and smelled the odor of alcohol about him, and expressed the opinion that the appellant was then intoxicated.

Testifying in his own behalf, the appellant admitted drinking “two Manhattans” three or four hours before Officer Henke stopped him while he was driving his car, but he denied that he was intoxicated, arid attributed his condition to working long hours, and being tired and sleepy, and also, to taking some sleeping pills.

In the judgment and order revoking probation, the court set out the condition of probation that he commit no offense against the laws of this state, and then found:

“That thereafter, to-wit, on or about the 14th day of March, 1966, and within the period of such probation, Defendant violated the terms and conditions thereof in the following particulars, to-wit:
“Driving a Motor Vehicle Upon a Public Road While Intoxicated, as charged in the information.”

It is concluded that the allegation in the state’s motion that appellant drove a motor vehicle upon a public road while intoxicated in Dallas County comes within the meaning of the condition of his probation that he commit no offense against the laws of this state.

A proceeding to revoke probation is not a criminal trial. Tate v. State, Tex.Cr.App., 365 S.W.2d 789.

On appeal, the review of proceedings in a probation hearing will be limited to a determination of whether the trial judge abused his discretion in revoking the probation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589; Torres v. State, Tex.Cr.App., 403 S.W.2d 135.

The appellant urges that the trial court abused his discretion in revoking probation on the ground that the recitation in the show cause order that he was “arrested” constituted no violation of his probation. His arrest is not relied on in the state’s motion or in the order of revocation as a condition for his probation.

Another ground urged is that the inclusion of the phrase “as charged in the information” in the order of revocation shown above reveals no violation of his conditions of probation and does not constitute a violation of the law. The phrase complained of is not essential in describing the offense, and as used does not vitiate the findings of the trial court.

As other grounds, the appellant contends that he did not violate any condition as set forth in the probation order, that the allegation in the motion to revoke that he drove a motor vehicle upon a public road while intoxicated in Dallas County, was not one of his conditions of probation, that he did not violate any law which could be used for revoking probation, and that the trial court abused his discretion in revoking his probation.

From a consideration of the record and the evidence, it is concluded that the trial court did not abuse his discretion in revoking the order granting the appellant probation.

The judgment is affirmed.


author: ONION, Judge.

text:
    Ex parte Wilbur L. MORGAN.
    No. 40046.
    Court of Criminal Appeals of Texas.
    March 15, 1967.

      Don G. Humble, Cameron, for petitioner.
    John B. Henderson, Jr., Cameron, Leon B. Douglas, State’s Atty., Austin, for the State.
   ONION, Judge.

This is an original application for writ of habeas corpus brought by an inmate of the Texas Department of Corrections. He challenges the legality of his conviction as an habitual criminal in cause No. 10,850 in the 20th District Court of Milam County on March 23, 1959. His grounds are that he was indigent and was not represented by counsel when he was convicted in cause No. 10,730 in the 20th District Court on April 24, 1953, for the felony offense of aiding a prisoner to escape from jail, and that such cause was alleged and used for enhancement in his 1959 conviction.

On January 10, 1967, this Court ordered the Honorable W. C. Wallace, present Judge of the 20th District Court, to conduct a hearing upon the petition for writ of habeas corpus. At such hearing the petitioner was present and represented by counsel, and Judge Wallace has certified the facts developed to this Court.

It was stipulated that petitioner was not represented by counsel in his 1953 trial at which he entered a plea of not guilty before a jury. The illiterate 37 year old petitioner testified that at such time he was without funds to hire counsel, that the Court did not appoint counsel to represent him, offer him the services of an attorney or ask him if he had an attorney, or advise him as to the rules of evidence or how to select a jury. The truthfulness of this testimony is not challenged.

The record does reveal that petitioner had been released on a $1,000.00 bond approximately six weeks prior to trial, and was employed, but it does not reflect the nature of the work, length of employment or income, or other testimony which would refute petitioner’s claim of indigency. The evidence does show that seventeen days prior to trial petitioner’s counsel, arranged for by his mother, was allowed to withdraw from the case by the court, when petitioner informed counsel he was unable to pay counsel.

Much of the testimony revolved around whether or not petitioner made a request for counsel. Petitioner admitted he made no such request of the trial judge, but asked “somebody * * * that was running it” (the trial). He related that he did not consent to proceed without counsel. Whether he made such request or not is immaterial in view of the circumstances established. Under the holdings of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; and Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, silence alone will not constitute a competent, intelligent and voluntary waiver of his constitutional right to be represented by counsel. See also Ex parte Geter, Tex.Cr.App., 383 S.W.2d 405; Ex parte Hamilton, 376 S.W.2d 575; Ex parte Davis, Tex.Cr.App., 379 S.W.2d 922.

While it is true that a silent record cannot support a presumption of waiver of counsel, it is equally certain that when collaterally attacked the judgment of a court carries with it a presumption of regularity and is not to be lightly set aside. United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248; Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461; Bates v. Meadows, 6 Cir., 358 F.2d 674. Therefore, a petitioner in a habeas corpus proceeding has the burden of proving by a preponderance of the evidence that he did not competently and intelligently waive a constitutional right which he asserts was denied him. Moore v. State of Michigan, 355 U.S. 155, 161-162, 78 S. Ct. 191, 2 L.Ed.2d 167; Johnson v. Zerbst, supra; Welch v. Beto, 5 Cir., 355 F.2d 1016, 1020; Palumbo v. State of New Jersey, 3 Cir., 334 F.2d 524, 533.

The burden thus cast upon a habeas corpus petitioner requires evidence, in addition to a silent record, to overcome the presumption of judgment regularity.

The petitioner is aided, however, by the fact that courts will indulge every reasonable presumption against the waiver of a constitutional right. Johnson v. Zerbst, supra.

In the light of the particular facts and circumstances surrounding the case at bar, we conclude that the petitioner has sustained his burden of proof and has presented substantial evidence to support his allegations that he was too poor to employ counsel and did not intentionally and knowingly relinquish or abandon his right to counsel.

The records of the Texas Department of Corrections reflect that the petitioner now has credit for in excess of 12 years, which is the maximum punishment which could be assessed against petitioner as a subsequent offender under the terms of Article 62, Vernon’s Ann.P.C., the instant or primary offense being burglary and the other prior conviction also being for burglary.

Accordingly, petitioner is entitled to be discharged under the holding of the United States Supreme Court in Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526.

The writ of habeas corpus is granted, and petitioner is ordered released.


author: O’QUINN, Justice.

text:
    Holland PAGE, Appellant, v. SUPERIOR STONE PRODUCTS, INC., dba Transmix of Taylor, Appellee.
    No. 11467.
    Court of Civil Appeals of Texas. Austin.
    March 1, 1967.
    Rehearing Denied March 22, 1967.

      Kuykendall & Kuykendall, F. L. Kuyken-dall, Austin, for appellant.
    McKay & Avery, Charlie D. Dye, Austin, for appellee.
   O’QUINN, Justice.

Appellee Superior Stone Products, Inc., doing business as Transmix of Taylor, sued appellant Holland Page in district court for an unpaid balance on an account for concrete delivered to a highway paving job in Lee County. In trial before the court without benefit of a jury, judgment was entered for appellee against appellant for $2,582.87 with interest and $1,200.00 attorney’s fees.

Appellant appeals contending that the account belonged to Phillips Paving Company, Inc., of which appellant was president, and not to him individually. The basis for appellee’s suit is a writing in the form of a letter from Transmix of Taylor dated August 21, 1961, addressed to Holland Page setting out prices for concrete and gravel for the Lee County job. The writing was accepted August 23,1961, over the signature of Holland Page.

The writing of August 21, 1961, was prepared and signed by J. E. Motheral, president of Superior Stone Products and Trans-mix of Taylor, and presented by him personally to Holland Page at Page’s office in Austin. Page and Motheral discussed and agreed upon changes in the gravel prices which Motheral noted in the writing and initialed on the margin. The writing was then accepted by Page who signed in a space provided at the bottom and dated his acceptance August 23, 1961.

The first paragraph of the writing read, “This is to confirm our agreement to furnish the following material for the above captioned project.” The caption described the Lee County project on Highway FM 696. The last paragraph of the writing provided, “This agreement is made and entered into subject only to the award of the contract.” The parties are in agreement that this reference is to award of contract by the State Highway Department on the Lee County job.

There is lack of agreement between the parties as to whether on August 23, 1961, when the writing was completed by acceptance, bids on the highway job had been opened and the low bidder was known. It is undisputed that Holland Page individually did not bid on the job, and that the contract was awarded August 28, 1961, to Phillips Paving Company, Inc., on a bid filed by Holland Page as president of Phillips. Page executed the formal contract with the Highway Department for Phillips and made its performance and payment bonds on the same date.

Motheral testified that he was told by his Taylor office that Page was low bidder on the Lee County job and then talked to Page by telephone before preparing the August 21 letter and taking it to Page’s office for his acceptance. There is evidence that normally several' days will elapse between opening of bids and award of the formal contract on highway projects, the time between these events being consumed in tabulating bids and preparing written contracts and bond forms.

Holland Page testified that he considered the writing of August 21, 1961, a quotation by Motheral and not a contract for supply of materials; that when he accepted the writing August 23 bids had not been opened, so no one knew who would be low bidder; that after the bids were opened, about August 26 or 27, Motheral called Page by telephone and said he had learned Phillips was low bidder and Transmix of Taylor would like to supply Phillips with materials on the Lee County job; and that Page informed Motheral the Phillips superintendent would get in touch with Transmix about materials. Page also testified that all bills were submitted to Phillips, none to Page, and that all bills paid were paid by Phillips, none by Page.

Motheral testified that the first bill for materials was submitted to Holland Page who called Motheral by telephone and told him to send statements to Phillips Paving Company; that he asked Page who Phillips was and Page replied it was a small company that was going to do the work; that this was the first information Motheral had that Phillips had anything to do with the contract; that he complied with Page’s request and sent all subsequent statements to Phillips.

Soon after completing the Lee County project, payments by Phillips to appellee ceased, leaving an unpaid balance for concrete and for gravel. Appellee filed a claim for the gravel account which was paid by. the bonding company, but a claim for the concrete account, the subject of this case, was filed too late for payment.

Motheral prepared a promissory note for execution by Holland Page individually in the amount of the unpaid concrete account and presented it in person for signature. Page then advised Motheral that he regarded the account a debt of Phillips and not his own and refused to sign the note. Page did agree to make a note for Phillips which Motheral prepared and returned to Page who signed it as president of Phillips. After the note matured a year later and was not paid, appellee brought this suit, tendering the promissory note through the district clerk, and suing on the original contract for material furnished.

Trial was before the court without a jury, and there are no findings of fact or conclusions of law. This Court has the duty to affirm the judgment if there is evidence to support it on any theory of the case, and to resolve every issue raised by the testimony in support of the judgment. 4 Tex.Jur.2d, Appeal and Error-Civil, sec. 747, and cases cited. The Court must resolve any doubts as to facts raised by the evidence in support of the judgment and must adopt any view of the law which the trial court could have applied under the pleadings and evidence to support the judgment. In other words, if there is any theory on which the Court can affirm the judgment, the Court has the duty to affirm. 4 Tex.Jur.2d, Appeal and Error-Civil, sec. 806, and cases cited.

The trial court had the duty and responsibility of weighing the testimony and giving the witnesses such credibility as the court deemed justified under all circumstances. Unless the trial court’s findings are clearly wrong, this Court cannot substitute its findings for the judgment of the trial court, even if this Court might have decided differently. Friendship Baptist Dist. Assn. v. Johnson, Tex.Civ.App., Fort Worth, 230 S.W.2d 598 (writ ref., n. r. e.) ; Magana v. Cheverere, Tex.Civ.App., Galveston, 269 S.W.2d 934 (no writ).

Construction of the materials contract is the principal issue to be decided.

A reasonable interpretation must be applied to a contract, and the courts should adopt a construction that is just and fair to' both parties according to the intention of the parties at the time they made the contract. Munger v. Waggoner, Tex.Civ.App., Amarillo, 260 S.W. 696 (writ.ref.) ; 17 Am. Jur.2d, Contracts, Sec. 252, p. 646.

The parties place opposing constructions on that provision of the materials contract making it “subject only to the award of the contract.” They agree this refers to award of a contract by the Highway Department on the Lee County job. Appellant insists the reference must be limited to award of the contract to Holland Page individually, and contends that since the award was to Phillips, Page cannot be held under the materials contract.

Holland Page did not bid individually on the Lee County job and knew at the time he contracted with appellee for sand and gravel he would not bid on the project except for Phillips. If Page did not bid on the job, naturally he could not become eligible for “award of the contract” by the Highway Department. Under appellant’s view of the condition in the materials contract, there was no possible way for Holland Page to carry out the materials contract made with appellee five days before the highway contract was awarded.

A contract will be construed to mean something, rather than nothing at all, and to have a meaning definite enough to show the parties intended their agreement to be mutually binding and effective. Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W.2d 823.

It is well-settled law in Texas that if there is some reasonable construction to render a contract valid and enforceable, the courts will not presume that the parties intended to call for an impossible condition precedent as a test of performance. On the contrary, a construction rendering performance possible will be adopted unless a different construction is wholly necessary. Portland Gasoline Co. v. Superior Marketing Co., supra; City of El Campo v. South Texas Nat. Bank, Tex.Civ.App., San Antonio, 200 S.W.2d 252 (writ ref.).

Appellant contends that the paragraph in the materials contract providing that the agreement was “subject only to the award on the contract” constituted a condition precedent to any personal liability on the part of Page and meant the condition was not met without award of the highway contract to Page. If this is correct, then Holland Page made a contract with appellee for material to be used on a job he never expected would be awarded him because he did not intend to bid on it. In fact, under evidence the trial court had a right to rely on to support the judgment, at the time Page was making a contract for material on the Lee County proj ect, the time for submitting bids had passed and Phillips was known to be the apparent low bidder.

Under appellant’s contention, it would have been impossible for the parties to perform the materials contract. This theory would place appellant in the position of making the contract knowing that the condition could not be met, since he did not intend to bid individually on the Lee County job. It is unreasonable to view the facts in such manner as to find that Holland Page contracted with appellee out of frivolous motives or with intent to work a fraud.

It is logical to assume that both parties entered into the contract with serious motives, one to sell material and the other to use it, and that the parties conditioned performance on award of a project contract under which Page could use appellee’s material, which, as subsequent events showed, was used under terms of the materials contract.

Since it was known when the parties contracted for material that Phillips was the apparent low bidder, the only conditions under which the parties would be unable to perform would be either if, after tabulation of the bids, the apparent low bidder was not so in fact, or if the Highway Department should reject all bids and order another letting. It would not be unreasonable, under circumstances surrounding the making of the materials contract, that with Phillips the known low bidder, Page would have an outlet for whatever material he had obligated himself to buy from appellee, if the contract on the project was let at all.

If a contract is ambiguous, or susceptible of dual meanings, the construction given the contract by the parties and their actions under the contract, before any controversy arose as to its meaning, with knowledge of its terms, will be adopted and enforced by the courts when reasonable. E. H. Perry & Co. v. Langbehn, 113 Tex. 72, 252 S.W. 472; Young v. Fitts, Tex.Civ.App., Fort Worth, 183 S.W.2d 186 (writ ref., w. o. m.); Murchison v. Ballard, Tex.Civ.App., San Antonio, 178 S.W.2d 554 (writ ref., w. o. m.); Anchor Casualty Company v. Robertson Transport Company, Tex.Civ.App., Corpus Christi, 389 S.W.2d 135 (writ ref., n. r. e.); Danaho Refining Company v. Dietz, Tex.Civ.App., Corpus Christi, 398 S.W.2d 307 (writ ref., n. r. e.).

After the highway contract was awarded to Phillips, appellee supplied the job with material contracted for by appellant. Phillips ordered the material as needed on the job, accepted and used the material, and made payments periodically as billed, until final default in the amount sued for in this cause. Billing to Phillips by appellee was at the request of appellant who told appellee that Phillips was a little company that would do the work.

Appellant individually and Phillips shared the same office address, where billings were received and payments made. After the project was completed and default had been made, appellant for the first time told appellee he would not accept individual responsibility for the default. In the trial uncontroverted proof was made of procedures, customary in highway construction, under which suppliers of material often receive payments from one or more persons or companies not parties to the materials contract, and receive no payments directly from the person or company with whom the supplier made his contract.

It is elementary that a contract is made if it results in an agreement that manifests the mutual assent to one another of the person offering and the person accepting. The letter appellee wrote to Page dated August 21, 1961, considered an offer, became a contract when Page agreed to its terms, as amended and initialed by ap-pellee, by accepting the offer in writing August 23. Acceptance was unequivocal and created a contract, subject only to award of the highway contract. The highway contract was awarded five days later, and the condition permitting performance was met. Thereafter performance was completed, except for the final default sued on in this cause.

We hold that the materials contract accepted August 23, 1961, by appellant was a binding obligation on appellant individually.

By the seventh assignment of error appellant attacks the judgment of the trial court on the ground that when appellee accepted the promissory note of Phillips, all prior and contemporaneous agreements between the parties merged into the note.

We overrule this assignment and hold that in the absence of clear showing that the parties intended the note as payment of the debt, the note did not constitute payment. Failure to pay the note when due placed appellee in a position to pursue its rights on the original materials contract with Page. Motheral testified that he accepted the Phillips note only “to keep the thing alive,” after Page had refused to sign a note individually. These and other actions are consistent with the expressed intent. Mere execution and delivery of the note is not enough to show it was intended to be payment of the debt. Duncan v. United Mutual Fire Ins. Co., (Tex.Com.App., adopted by Sup.Ct.), 113 Tex. 305, 254 S.W. 1101. Also, in accord: Otto v. Halff, 89 Tex. 384, 34 S.W. 910; Powell v. American Casualty & Life Co., Tex.Civ.App., Dallas, 250 S.W.2d 744 (writ ref., n. r.. e.).

Appellant in assignments eight and nine contends the trial court erred in allowing attorney’s fees under Article 2226, Vernon’s Ann.Civ.Sts., on the grounds (1) that the material was not sold and furnished to Page and (2) that appellee’s suit is based on a special contract.

We overrule both assignments and hold the trial court properly entered judgment for attorney’s fees under Article 2226.

The trial court, after hearing testimony on attorney’s fees, awarded $750 for services to the end of trial and an additional $450 conditioned on an appeal. No question is raised as to reasonableness of the awards. No contention is made by appellant that demand for payment was not timely made, or that in other respects appellee failed to satisfy procedural requirements. Appellant’s attack is limited to the basis for allowance of the fees under the statute.

Appellant’s position is that appellee does not seek to recover on an open account, but upon a “special written contract,” being the materials contract of August 23, 1961. In support of the contention that attorney’s fees are not recoverable from transactions resting upon special contracts, appellant relies upon Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958), and Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435 (1961).

In the Meaders case the Supreme Court held that a contract for drilling an oil well is not a sworn account and attorney’s fees may not be recovered under Article 2226. In the Langdeau case attorney’s fees were sought under the “sworn account” heading of Article 2226 and not under any other specific heading, such as “labor done” or “material furnished.” The Supreme Court affirmed the Court of Civil Appeals and held that while attorney’s fees could not be recovered under the heading of sworn accounts in a suit “resting upon special contracts,” recovery might be had under a contract covering “other classifications set out in Art. 2226.”

The Supreme Court pointed out in the Langdeau case that in Meaders v. Biskamp, supra, the Court’s holding that a sworn account “ ‘does not mean transaction between parties resting upon special contract’ was not a holding that recovery of attorney’s fees under any other provision of Art. 2226 may not rest upon a contract basis. It was simply a holding that a recovery under the ‘sworn account’ provision cannot be had upon a special contract.”

In the cause before this Court, appellee sued Holland Page pleading the contract of August 23, 1961, and further pleading that between November 8, 1961, and April 3, 1962, appellee supplied a total of 448.5 yards of ready mixed concrete of the total value of $8,861.08, of which the sum of $6,278.21 was paid, leaving a balance of $2,582.87 due and owing by Page under the written contract. Appellee also pleaded under provisions of Article 2226 reasonable attorney’s fees of $850 in the trial court and $500 in connection with an appeal.

It is clear that appellee does not sue for attorney’s fees under the sworn account classification of Article 2226. It is a suit on a contract for “material furnished,” one of the classifications set out in Article 2226 under which attorney’s fees may be awarded.

An award of attorney’s fees where the action is based upon a contract to furnish material is within the scope of Article 2226. Dueitt v. Barrow, Tex.Civ.App., Corpus Christi, 384 S.W.2d 214 (no writ). Ready mixed concrete supplied to a highway paving job as in this case is material furnished as contemplated under Article 2226. This Court in 1965 held that water furnished for irrigation of rice fields is material, and that attorney’s fees may be awarded under Article 2226 in suit on a written contract to supply the water. Garwood Irrigation Co. v. Lower Colorado River Authority, Tex.Civ.App., Austin, 387 S.W.2d 746 (writ ref., n. r. e.).

Consistent with these principles are cases holding attorney’s fees allowable under classifications, other than material furnished, named in Article 2226, such as labor done and services rendered. Danaho Refining Company v. Dietz, Tex.Civ.App., Corpus Christi, 398 S.W.2d 307 (writ ref., n. r. e.); H. B. Zachry Co. v. Ceco Steel Products Corp., Tex.Civ.App., Eastland, 404 S.W.2d 113 (no writ) ; Shirey v. Albright, Tex.Civ.App., Corpus Christi, 404 S.W.2d 152 (writ ref., n. r. e.).

We affirm the judgment of the trial court.

Affirmed.


author: STEPHENSON, Justice.

text:
    CONTINENTAL AMERICAN LIFE INSURANCE COMPANY, Appellant, v. Jessie McCAIN, Appellee.
    No. 6876.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 23, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellant.
    John Seale, Jasper, for appellee.
   STEPHENSON, Justice.

This is a suit on an insurance policy, for disability benefits. Trial was by jury and judgment was rendered for plaintiff. The parties will be referred to here as they were in the trial court.

Defendant contends first that the undisputed evidence shows that plaintiff gave no notice of claim for disability and made no proof of loss as required by the insurance policy.

The portions of the policy pertaining to notice of claim and proof of loss are as follows:

“Written notice of claim must be given to the Company within twenty days after the occurrence or commencement of any loss covered by this Policy. Notice given by or on behalf of the claimant to the Company at its Home Office in Houston, Texas, with information sufficient to identify the individual whose injury or sickness is the basis of claim shall be deemed notice to the Company. The Company, upon receipt of such notice, will furnish forms for filing proof of loss: If such forms are not furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this Policy as to proof of loss upon submitting written proof of such loss in accordance with the provisions of the next succeeding paragraph.
“Written proof covering the occurrence, character and extent of the loss for which claim is made must be given to the Company within ninety days after the termination of the period for which-the Company is liable with- respect to any loss for which this Policy provides pay- • ments contingent upon continuing loss; otherwise, within ninety days after the date of the loss for which claim is made. Failure to furnish notice dr proof within the time fixed in this Policy will not invalidate or reduce any claim if it shall be shown that it was not reasonably possible to furnish such notice or proof on time and that it was furnished as soon as was reasonably possible.”

The evidence shows that plaintiff was injured while working for C. N. Bishop February 24, 1965. At such time Bishop carried the group insurance policy herein sued upon, with defendant. Plaintiff was employed by Bishop to cut and haul pulpwood, and injured himself while picking up a large stick of wood. Plaintiff went to see a doctor a day or two after the injury, and was admitted to the hospital the next day and operated upon for hernia the following day. The hospital records show plaintiff was admitted to the hospital March 2, 1965, had surgery March 3, 1965 and was dismissed March 9, 1965. An exhibit was introduced in evidence containing a statement from plaintiff taken at the time he entered the hospital, dated March 2, 1965 and signed by a “mark” which showed the nature of the injury to be “hernia”, the date of the injury "3/1/65” and that it happened— “lifting a heavy weight.” The upper portion of this exhibit was addressed to the defendant and showed plaintiff’s name, address, employer, policy number, name of the hospital, name of the attending physician, diagnosis “indirect inguinal hernia”, date .of admission and date of discharge. The bottom portion of this exhibit was an assignment by plaintiff to the hospital signed by plaintiff by his “mark.” The testimony shows this exhibit which is called a “claim form” was received in defendant’s office June 16, 1965 and that the hospital bill in the amount of $192.40 and doctor bill in the amount of $150.00 were paid by defendant July 2, 1965. It is undisputed that defendant did not furnish the plaintiff with forms for filing proof of loss.

Plaintiff testified: That after he picked up the big stick of wood it hurt in the lower part of his stomach, his back and down his leg. That he did not work any more and his brother-in-law carried him home, That he' did not go back to work. That two days- later he went to see Dr. Love who told him he had to operate on him. That his back hurt him while he was in the hospital and he told the doctors about it. That he sent word by his wife to Mr. Bishop that he had been hurt. That he did not know the name of Bishop’s insurance carrier. That he sent word to Mr. Bishop again by his wife, after he got out of the hospital. That a white lady came to see him at his home with some papers for him to sign and told him that he would start drawing weekly pay if he signed. That he did not sign because he didn’t know what was in them. That he could not read or write. That he didn’t know who the lady was but she said she came from Beaumont. This was about a month and a half after he got out of the hospital. That later a white man came to see him and asked questions and wrote something down, but he wouldn’t sign it.

Plaintiff admits no written notice was given defendant within 20 days after he was injured at its Houston office, but plaintiff contends this provision in the policy is void because of Article 5546, Vernon’s Ann.Civ.St, which reads in part as follows:

“No stipulation in a contract requiring notice to be given of a claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable. Any such stipulation fixing the time within which such notice shall be given at a less period than ninety (90) days shall be void, and when any such notice is required, the same may be given to the nearest or to any other convenient local agent of the company requiring the same.”

Plaintiff also contends that he acted as a reasonable prudent person, and that this is all he was required to do in order to comply with that part of the policy quoted in this opinion, which specifically reads as follows:

“ * * * Failure to furnish notice or proof within the time fixed in this Policy will not invalidate or reduce any claim if it shall be shown that it was not reasonably possible to furnish such notice or proof on time and that it was furnished as soon as was reasonably possible.”

The court submitted special issue No. 1, which reads as follows:

“Do you find from a preponderance of the evidence that the plaintiff Jessie McCain acted as a reasonably prudent person under the same or similar circumstances would have acted, with reference to the furnishing of notice and proof of loss to the defendant?
“Answer ‘yes’ or ‘no’
“Answer: Yes”

We interpret this policy of insurance to require a claimant to exercise reasonable diligence in filing a notice of injury and claim. The finding of the jury satisfied this requirement. These points are overruled.

Next defendant contends there was no evidence to support such finding of the jury, that there was insufficient evidence, and that such finding was contrary to the great weight and preponderance of the evidence. In passing upon the “no evidence” point we look only to the evidence favorable to the finding of the jury. We will not again repeat the evidence set forth above. It must be kept in mind that plaintiff was a person who could neither read nor write. This was a group policy carried by his employer and therefore plaintiff had had no contact with anyone connected with the defendant’s company before the injury, and no copy of the insurance policy. Plaintiff notified his employer immediately following the injury, and soon thereafter entered the hospital and was operated upon. Claim forms were filled out at the time of admittance to the hospital, which finally found their way into defendant’s hand, and the hospital and doctor bills were paid. This evidence supported the finding of the jury. In passing upon the insufficiency of the evidence and the point as to the weight of the evidence, we consider the entire record. Even though much of plaintiff’s testimony is uncertain, and some of it conflicting, the evidence offered by defendant did no more than raise an issue of fact for the jury to determine, which it did favorably to plaintiff. Such finding is not so contrary to the evidence as to be clearly wrong or manifestly unjust. These points are overruled.

Objection was made that special issue No. 1 was duplicitous in that it inquired both as to the notice and proof of loss in the same issue. It is argued that defendant was deprived of a separate submission of its independent defenses, citing Rules 277 and 279, Texas Rules of Civil Procedure. These rules require the trial court to submit to the jury the controlling issues made by the pleadings and the evidence, and that the issues be submitted distinctly and separately. However, the rules and the cases interpreting such rules, permit the grouping of facts in a single ultimate issue. It is also permissible to include an uncontroverted fact along with a controverted fact in the same issue. In this case it is undisputed that defendant received the “claim form” June 16, 1965 and that defendant did not thereafter within 15 days furnish plaintiff forms for filing proof of loss, as provided for by the insurance policy. In any event, the issue as submitted placed an undue burden upon plaintiff and the jury could answer in the affirmative by finding for plaintiff both as to notice and the claim, and could not have been harmful to the defendant. Rule 431, T.R.C.P.

The jury found in answer to special issue No. 4 that plaintiff was presently under the care and attendance of a physician, and to special issue No. 5 that plaintiff had been under the regular care and attendance of a physician during the period between February 24, 1965 and the present. Defendant has assailed each of such answers on the ground that there was no evidence and insufficient evidence to support such findings, and that such findings were contrary to the weight and preponderance of the evidence. The policy of insurance contained this provision:

“Benefits shall not be payable for (a) any period of disability during which the person is not under the regular care and attendance of a physician.”

The record shows that plaintiff gave the following testimony:

“Q. All right. Now then following the time that you left the hospital after that eight days did you continue to see the doctor ?
A. Yes.
Q. And what doctor is it that you have been seeing since you got out of the hospital ?
A. I have been going back up — I have been going back up there to Jasper to Joe Dickerson.
Q. Joe Dickerson?
A. Yes.
Q. All right. Now when is the last time that you saw Joe Dickerson?
A. It has been — it has been — it has been about a month.
Q. All right. Now have you ever since you got out of the hospital have you continued to see Dr. Dickerson from time to time?
A. Yes.
Q. What would be about the longest time between any two times that you have seen Dr. Dickerson since you got out of the hospital?
A. Sometimes it would be three weeks and sometimes be a month.
Q. Was it ever any longer than a month in between times ?
A. No.”
“Q. Now, during the last — during about the last six months is it your testimony you have been going to see Dr. Dickerson?
A. Yes, I have.
Q. What has he been doing?
A. He was doctoring on me for my back.”

Under the “no evidence” points this testimony supported the findings of the jury. As to the other points of error, considering the entire record, and particularly the testimony of Dr. Dickerson and the plaintiff on cross-examination, there are many conflicts difficult to reconcile but this was the function of the jury. We do not find such answers to be so contrary to the weight of the evidence to be clearly wrong or manifestly unjust. The points of error are overruled.

The jury found $800.00 to be a reasonable attorney’s fee, and the trial court’s judgment allowed plaintiff a recovery of an amount to include this attorney’s fee plus the penalty provided for under Article 3.62 of the Texas Insurance Code, V.A.T.S. Defendant contends that this was error because no proper demand had been made upon defendant for payment under the insurance policy. The evidence shows that plaintiff’s attorney wrote to the defendant at a Beaumont address October 22, 1965, which stated the following:

“I represent Jessie McCain and would like to talk to your representative as soon as possible about his disability claim against you.”

Then plaintiff’s attorney testified he mailed a letter to defendant at its Houston address, dated November 10, 1965, stating the following :

“We are talking about the March 2, 1965 injury. Mr. Bishop tells us that the policy provided for weekly payments in the event of disability and Mr. McCain has never received any such payments. This is what we intend to seek to collect.
“Please advise about this right away.”

Nothing was heard from defendant after the letter of November 10, 1965, and on December 17, 1965 this suit was filed. Article 3.62 of the Insurance Code reads in part as follows:

“In all cases where a loss occurs and the * * * insurance company liable
therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. * * *»

A sufficient demand was made under this statute. No particular form of demand is required. It is set forth in National Life & Accident Ins. Co. v. Dove, 141 Tex. 464, 174 S.W.2d 245, 247: “All that is required is the assertion of the right under the contract and a request for compliance therewith.” Such an assertion was made in this case, and once liability was established, plaintiff became entitled to the penalty and attorney’s fee.

The judgment in this case allowed plaintiff recovery of disability benefits for a period of 24 months, which was the limit under the policy. It is defendant’s position that plaintiff’s recovery for such benefits was limited to the date of the trial, which began March 7, 1966, because there had been no repudiation of the contract by defendant. Defendant argues that in case of a mere denial of liability for a particular claim, that recovery is limited to the accrued benefits.

The facts in this case are such that plaintiff must rely upon the inactivity of the defendant as a repudiation of the contract, rather than an affirmative denial of liability. Nowhere in the evidence does it appear that defendant either orally or in writing denied that it was obligated to plaintiff under the policy. The only statement in writing which might be construed as a denial of liability, or a repudiation of this claim under the policy, was contained in the letter written by L. J. Cappleman, assistant to the president, dated November 8, 1965 addressed to plaintiff’s attorney, as follows:

“We have finally been able to locate the file regarding Jessie McCain, and his group policyholder C. N. Bishop. The last claim file that we have for Jessie McCain is for an injury incurred March 2, 1965. We have paid this claim in accordance with the claim papers submitted.
“If there is another claim to be submitted or if there is additional information on this claim, please forward this information to me.”

In fact, defendant paid both the hospital and doctor bills arising out of the incident made the basis of this suit. Defendant’s answer sets up the following defenses: That plaintiff failed to give the notice and proof of loss required by the policy. That plaintiff failed to make a proper demand as required by statute. That benefits could be recovered only for the period of time plaintiff was under regular care and attendance of a physician.

As already stated in this opinion, after the letter of November 10, 1965 written by the attorney representing plaintiff which is set out above, the defendant did nothing. This is not a case in which defendant contended that under the facts plaintiff was not entitled to recovery, and this is not a case in which defendant denied liability or claimed defenses under the policy and this is not a case in which defendant refused payment under a mistake or misunderstanding as to matters of fact or upon an erroneous construction of the policy. After the letter of November 10,1965, above referred to, plaintiff was told nothing by defendant. Defendant did not send plaintiff forms in order to make a claim for disability benefits, and took no other action. Plaintiff waited more than the 30 days required by Article 3.62 of the Insurance Code, supra, and brought this suit for the full amount of benefits provided by the policy of insurance. Plaintiff treated defendant’s actions as an anticipatory breach and brought suit for the full amount that he would have received if the contract had been performed. The trial court construed defendant’s actions to be a repudiation of the contract by entering its judgment for the full amount. We agree with the trial court. Defendant having failed to carry out its part of the contract and pay plaintiff the monthly disability benefits, without just excuse, cannot now complain of the action of the trial court in permitting plaintiff to recover in one suit the present value of all of the damages he would have received if the contract had been performed, and not compelling plaintiff to resort to repeated suits for monthly payments. Pollack v. Pollack, Tex.Com.App., 39 S.W.2d 853; Coutinental Casualty Co. v. Boerger, Tex.Civ.App., 389 S.W.2d 566.

We find the remainder of the 51 points of error to be without merit.

Affirmed.