author: PALMORE, Jadge.

text:
    BRYAN BROTHERS PACKING COMPANY, Appellant, v. J. Thomas GARRARD et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    As Modified on Denial of Rehearing Feb. 12, 1965.

      A. Shelby Winstead, Thomas A. Bailan-tine, Jr., McElwain, Dinning, Clarke & Winstead, Louisville, for appellant.
    R. W. Keenon, Stoll, Keenon & Park, John L. Davis, Gladney Harville, Lexington, for appellees.
   PALMORE, Jadge.

This is a declaratory judgment suit attempting to fix ultimate liability for the-satisfaction of certain tort claims. Real' parties in interest on the appeal are the appellant, Bryan Brothers Packing Company (hereinafter called Bryan), and the appellee American Fidelity and Casualty Insurance-Company (hereinafter called American).. The appellee J. Thomas Garrard is a nominal party.

Garrard and Bryan are residents of Mississippi. Garrard leased certain trucks to-Bryan, a meat packer. While driving one of the leased trucks back to Mississippi after having delivered a load of Bryan’s, products to Louisville, Bryan’s employee-Latham had an accident near Elizabeth-town, Kentucky. This precipitated a lawsuit in Hardin County by three injured! third parties against Latham, Bryan and .Garrard. Garrard was let out by summary-judgment because Latham, whose negligence was alleged to have caused the accident, was not his servant. Bryan’s' insurance carrier, United States Fidelity & Guaranty Company (hereinafter called USF&G), acting under protection of a non-waiver agreement, settled one of the claims for $50,000 and paid judgments totalling $21,-021.28 on the other two. A cross-claim by Bryan against its servant Latham remains pending.

During the pendency of the tort action in Kentucky USF&G brought a declaratory judgment action against American in the U. S. District Court for the Northern District of Mississippi which resulted in a judgment that the omnibus clause of American’s policy on Garrard covered Latham at the time of the accident, with the result that American was the primary insurer and USF&G only an excess insurer on the liabilities arising out of the accident. This judgment was affirmed in American Fidelity & Casualty Co. v. United States Fidelity & Guaranty Co. (CA5), 305 F.2d 633 (1962).

Also during the pendency of the tort action to which we have referred, two other ■damage suits were filed in Hardin County .against Bryan and Latham (but not Gar-rard). These claims were satisfied by American for a total of $1200, setting the ■stage for the instant litigation, in which American sought and has obtained in the Hardin Circuit Court a judgment declaring that Bryan must reimburse it and must also, .as between American and Bryan, assume liability for the sums paid out by USF&G in satisfaction of the other claims. USF&G is not a party.

The basis for American’s claim that Bry.an must indemnify it against liability incurred through its omnibus clause for the negligence of Bryan’s employee Latham is that the truck lease contract between American’s insured, Garrard (the lessor), -and Bryan (the lessee) provided in part as follows (emphasis added) :

“3. The Lessee, while using such equipment, agrees and binds itself to assume full and sole responsibility for' ■ all operations it conducts, and the Les-' sor shall not be responsible, directly or indirectly, for any loss or damage to cargo, property damage, personal injury, or other liability resulting from such operations by Lessee; and it is specifically understood and agreed * * * that no cargo, public liability or property damage insurance shall be furnished by Lessor or in any way inure to the benefit of Lessee for any of Lessee’s operations and use of said equipment.”

The two substantive questions in the case are (1) whether the judgment in the federal proceeding in Mississippi is res judicata and, if not, (2) whether the lease contract between Garrard and Bryan affords to Gar-rard’s insurer, American, a right to recover sums it has paid in order to satisfy liabilities for which Bryan had agreed to be solely responsible. - ;

We have been treated to excellent discussions, both in the briefs and oral argument, of the authorities urged by respective counsel as bearing on these problems. None of the precedents discovered are sufficiently analogous, singly or in combination, to “kill every cat in the alley.” Nevertheless, the resolution of this controversy does not call so much for the application of precedent as it does for plain and simple analysis in the light of fundamentals.

First to the point of res judicata. We need not consider whether the federal judgment is binding on the parties to this suit; it can be assumed that it is. But aside from the status and relationship of the parties inter sese and with respect to others, it is rudimentary that the issue on which res judicata is pleaded must have been embraced in the scope of the proceeding that has been adjudicated. Bryan contends that the issue in this case was within the matters litigated in the federal suit. Implicit in its argument is that if American did not in that proceeding assert its rights (if any) arising out of the lease contract, it could and should have done só and is thus impaled on the principle that “an adjudication is final and conclusive not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided as incident to or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense.” Case v. Beauregard, 101 U.S. 688, 25 L.Ed. 1004 (1879), as cited in Freeman on Judgments, § 674 (Vol. 2, pp. 1421-1422).

USF&G and American were the only parties to the federal suit. USF&G’s complaint alleged enough of the substance of the lease argument between Garrard and Bryan to show that Latham was driving the truck with the permission and consent of Garrard via the lease. The lease was not set forth in haec verba, nor was its paragraph 3, quoted above, referred to in any manner. The prayer of the complaint was that the court determine:

“(1) Which of the leased trucks was involved in the accident and whether the said truck was listed and described in the lease agreement between J. T. Garrard, the insured of defendant, and Bryan Brothers Packing Company, insured of the plaintiff;
“(2) Who was the primary insurer of the truck involved in the accident;
“(3) Who were excess and who were additional insurers;
“(4) Who is liable for the defense of the suit now pending in Kentucky against Jimmie Latham and Bryan Brothers Packing- Company; and who is liable for the loss;
“(5) Who is liable for the defense and loss, if any, in the suit now pending in Kentucky against Jimmie Latham and Bryan Brothers Packing Company, and whether as primary, excess or additional insurers.
“And that the Court enter a Declaratory Judgment determining the rights
and liabilities of the plaintiff and defendant under their policies.”

The judgment of the federal court is not in this record. In lieu of it Bryan pleaded as an exhibit an order of that court which (a) overruled, among other things, a motion by American to assert a third party complaint (probably against Bryan) and (b) made final an interlocutory order (the judgment) theretofore entered “holding defendant to be the primary insurer of liability to the extent of its policy and plaintiff to be the excess insurer of the liability-arising out of the accident in question-

It is clear that the federal court did not. in fact entertain or attempt to adjudicate-the issue that is now before this court, and', that it could scarcely have done so without: Bryan’s being a party. Moreover, the issue-in this case could not and would not have-arisen unless and until the issue of primary-liability between the insurance companies. with respect to the tort claimants had been; resolved.

The “general expression * * *' that a judgment is conclusive of every matter which the parties might have litigated', in the action, is misleading. What is really-meant by this expression is, that a judgment - is conclusive upon the issues made or tendered and, so far as those issues are concerned, of everything which might have-been urged for or against them. It may be- * * * that the defendant might have interposed counterclaims, cross-bills, and equitable defenses, or either of the parties may-have acquired new rights pending the litigation, which might, by permission of the-court, have been pleaded by supplemental complaint or answer, and therefore might-have been litigated in the action. But as-long as these several matters are not tendered as issues in the action, they are not: affected by it * * * the plaintiff is under no obligation to tender issues not necessary to support his cause of action, nor is-the defendant required to meet issues not tendered by plaintiff. * * * ” (Emphasis-.•added.) Freeman on Judgments, § 675 (Vol. 2, pp. 1422-1424).

USF&G’s federal court complaint ■certainly did not tender the issue that is now before us in this case, and even assuming that American attempted to tender it by way •of a third party complaint against Bryan, it was not and has not been determined on the merits. No judgment can be available as an estoppel unless it is a judgment on the ■merits. Id., § 723 (Vol. 2, p. 1530) ; Blevins v. Johnson, Ky., 344 S.W.2d 375, 377 (1961).

If it were contended by American that whatever it may recover of Bryan because ■of the provisions in the lease agreement can in turn be recovered by Bryan from USF&G, it might be argued that the issue was subject to the compulsory counterclaim requirement of Fed.R.Civ.P. 13(a). However, that is not the case. American does mot contend that the agreement between ■Garrard and Bryan affects USF&G’s rights .and liabilities under its insurance contract with Bryan. The liability American seeks to impose on Bryan results from a contract to which USF&G was not a party and by which it is not bound. It is not apparent that USF&G’s policy protects Bryan against •such a liability. Presumably it does not. How, then, in justice can it now be held that American was compelled in the federal action to assert that it does? In our opinion such a claim could not have been the subject of compulsory counterclaim under Fed. R.Civ.P. 13(a)

What we have said in the preceding paragraph suggests the answer to the argument that if the judgment in this case stands Bryan will recover from USF&G, then US P&G will recover from American under the federal court judgment, and we go perpetually round and around in a preposterous circle. The federal court judgment determined only that as between the two insurance companies the tort claims fell first upon American. The Hardin Circuit Court has now adjudged that Bryan must indemnify American. If in some other proceeding it be determined that USF&G’s policy covers Bryan on that kind of a liability (an eventuality that is by no means obvious), the federal court judgment • does not have the effect of passing it to American. American is liable to USF&G only because and to the extent that USF&G has paid tort claimants to whom American was primarily exposed. If USF&G pays Bryan it will have discharged a liability which' has finally been determined to be Bryan’s alone, and not American’s. It will not have paid any debt owed by American, and the circus will be at an end.

Proceeding now to the merits on the question of whether American has a cause of action against Bryan because it has satisfied a liability that Bryan had agreed to assume, § 76 of the Restatement of the Law of Restitution states the following general rule :

“A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity by the other, unless the payor is barred by the wrongful nature of his conduct.”

Acceding to this simple and wholesome precept, we find no difficulty in reaching the conclusion that Bryan is liable. USF&G’s policy on Bryan does not enter into this phase of the matter. The situation between American and Bryan would be precisely the same if Bryan had carried no insurance at all. By paragraph 3 of the lease contract Bryan assumed “full and sole” responsibility for its operations and, as we construe the phraseology relating to insurance, agreed explicitly that no insurance carried by Garrard would inure to Bryan’s benefit. It so happens that Garrard’s insurance actually did inure to the benefit of Bryan. That which Bryan agreed would not occur did occur, and if American cannot avail itself of Bryan’s agreement, that agreement is and was from the beginning of no more force, effect, use or purpose than a locust shell on the hark of a tree.

Bryan contends, however, that American’s policy on Garrard inured to the benefit of Latham, Bryan’s driver, and, not to Bryan itself. In the homely idiom of a colorful West Kentucky lawyer long gone but not forgotten, “that dog won’t hunt.” To begin with, the word “insured” as it was ■held to apply to Latham under the omnibus clause of American’s policy expressly includes not only the driver but also “any person or organization legally responsible for the use thereof,” which covers Latham’s employer. Secondly, as Bryan was liable for Latham’s negligence under the doctrine of respondeat superior, and actually was a party defendant in the tort actions, there can be no real doubt that settlement of the claims, by whomsoever other than Bryan they were paid, necessarily inured to Bryan’s benefit.

Our conclusion with respect to American’s rights against Bryan does not rest on the theory of third party beneficiary contract, but on the broad principles of restitution and unjust enrichment. “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement of the Law of Restitution, § 1. “A person is enriched if he has received a benefit * * *. A person is unjustly enriched if the retention of the benefit would be unjust.” Id., Comment a.

Once the technical intricacies are viewed in proper focus it is easy to see where justice stands in this case.

For reasons we need not consider, the driver Latham was made a party defendant in this proceeding, and among the conclusions of law prefacing the judgment is this: “Bryan Brothers has no right to recover from Latham for any payments it makes to anyone in discharge of the contractual obligation assumed by it in the lease * * There is no pleading in the case to which such a conclusion is responsive, and Bryan complains of it. Apparently the question was argued in the trial court. But wherever it came from, and whether the conclusion is right or wrong, it redounds to the benefit of Latham and thus Latham would be an indispensable adversary party to any effort to undo it. It would be impossible to adjudicate Bryan’s-complaint in this respect without affecting Latham’s rights, and he was not made a party to the appeal.

The judgment is affirmed.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    SERVICE CASUALTY COMPANY OF NEW YORK, Appellant, v. Millard MARCUM, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.

      Calvert C. Little, London, for appellant.
    Lester H. Burns, Jr., John M. Lyttle, Manchester, Robert L. Milby, Hamm, Taylor & Milby, London, for appellee.
   WADDILL, Commissioner.

On February 9, 1962, the appellant, Service Casualty Company of New York, insured for one year the appellee, Millard Marcum, against loss by collision of one of his trucks. The policy provided that the liability of the Company would not exceed what it would cost to repair the truck and that the Company would either repair the truck or make a cash settlement.

The truck was damaged in a collision on March 28, 1962. The Company conceded it was liable under this policy and suggested the truck be taken to Knoxville, Tennessee for an estimate of the cost of repairs. Marcum agreed to this and on April 12, 1962, gave permission for Brooks Brothers {employed by the Company) to transport-the truck to Knoxville. Enroute it was necessary for Brooks Brothers to dismantle the truck to the extent of removing the bed which was left at Pineville. The G.M.C. Garage at Knoxville estimated the cost of repair at approximately $2300. It asked Marcum for authority to make repairs according to its estimate, but Marcum refused unless a new frame was placed on the truck.

The Company also obtained an estimate of the damage to the truck from the Hughes Garage in Knoxville which fixed it at $2477.29. Marcum still refused permission for repairs to be made by either of these garages unless a new frame was installed. From May 1962 to November 1962 the truck remained at the G.M.C. Garage. On July 2, 1962, the Company wrote Marcum offering to settle with him on the basis of the estimate of the G.M.C. Garage. This offer was not accepted.

On August 16, 1962, Marcum filed this suit in Clay Circuit Court seeking a recovery for damage to the truck, for damage to the truck bed and for loss of use of the truck. Upon the trial the jury found for Marcum in the sum of $6,000, making no separation of this amount among the various claims.

The Company contends that the court erred in permitting Marcum to recover damages for the loss of the use of his truck. In Motors Insurance Corporation v. Howard, Ky., 291 S.W.2d 522, we recognized that under certain circumstances an insurer may be liable for damages due to unreasonable delay in settling a pending claim. In the instant case the delay in settling Marcum’s claim was due to his insistence that a new frame be installed on his damaged truck. In view of the fact that the uncontradicted evidence showed the frame could be repaired, so as to satisfy the Company’s obligation to Marcum, there was no unreasonable delay attributable to the Company. Hence, the court committed reversible error in permitting a recovery for loss of use of the truck'

Inasmuch as we are reversing the judgment, we will comment on the propriety of the first and third instructions. The first permitted a recovery limited to the amount of the Company’s offer on July 2, 1962. The phrase “without qualifications” in describing this offer is vague and misleading and should have been deleted. The third ■instruction allowed a recovery of $450 if the jury believed the truck bed was “damaged and destroyed” while under the Company’s control. The only evidence on this point concerned damage incurred in the March 28, 1962, accident and the cost of repairing this would not exceed $300. There was no evidence' that the bed was destroyed. Therefore this instruction was erroneous in permitting recovery for damage other than that arising from the accident, in permitting a recovery in excess of $300 and in referring to destruction of the bed.

In the event of a new trial, if the evidence is substantially the same, the instructions shall be drawn in accordance with this opinion.

The judgment is reversed with direction to grant a new trial.


author: DAVIS, Commissioner.

text:
    Eugene HOMAN, Appellant, v. George LUSK, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.
    As Modified on Denial of Rehearing Feb. 12, 1965.
    C. B. Creech, Ashland, for appellant.
    J. W. McKenzie, Baxter Arnett, Ashland, for appellee.
   DAVIS, Commissioner.

Appellant Homan and appellee Lusk are architects. Appellant sued appellee, asserting an oral contract whereby appellee had agreed to compensate appellant by a sum equal to one-third of the net profits derived from architectural fees received into the business operated under appellee’s name. Appellee denied that such an agreement had been made. The trial court awarded judgment for appellant in the sum of $4,200.00. The parties challenge the judgment by direct and cross-appeals.

The basic question is whether there was a profit sharing agreement. If it is determined that such an agreement did exist, then the secondary question of accounting between the parties arises.

Appellant was employed as a draftsman in appellee’s office about 1953. According to the evidence for appellant, in the latter part of 1955 appellee agreed to place appellant upon the profit sharing agreement, alloting one-third of net profits to appellant and two-thirds to appellee. This change was to become effective January 1, 1956. Appellant explained that the profit sharing arrangement was made as an inducement for him to remain with appellee rather than accept employment in California. Appellant said that he was to assume additional responsibilities incident to the increased income.

Appellant acquired a license as an architect in 1957. The parties maintained their working relationship until September 16, 1960, at which time they severed the association ; the evidence fairly discloses that the ultimate breach in their working arrangement flowed from their disagreement as to the amount of compensation due appellant.

Appellant instituted the present litigation about three months after the separation. In his complaint he alleged the oral agreement mentioned, and asserted that a proper accounting should be required. The complaint charged that a sum “believed to be in excess of $35,000.00” is due from ap-pellee to appellant. An additional $40,000.-00 was sought as damages for the claimed breach of the oral contract. Appellee denied the existence of any profit sharing contract.

Substantially all the evidence heard in the case was heard by the Master Commissioner, to whom the matter had been referred by the trial court. Many of the facts are undisputed, while some are in sharp dispute. The following résumé of the evidence in behalf of appellant will suffice to present the nature of the factual issues:

Appellant gave his own testimony that there was a specific oral agreement between him and appellee whereby the profit sharing basis of compensation was established. To' corroborate that testimony he showed that after the first quarter in 1956 appellant was no longer shown as an employee of appellee with regard to quarterly and annual federal withholding and social security taxes. Other outward changes in the conduct of the office were made; for example, the letterhead of the business was changed from “George A. Lusk, Architect and Engineer” to “George A. Lusk & Associates, Architects and Engineers.” The name of appellant, as an architect, was carried in the subheading of the stationery.

There were changes as to the listing of the office and its personnel as carried in the Ashland telephone directory. The former listing was for “George A. Lusk, Architect”; this was changed to “George A. Lusk and Associates.” The listing for appellant was changed from “draftsman” to “Associate, George A. Lusk.” It is to be noted that appellee testified that these changes were not made by him, nor with his affirmative consent. However, appellee concedes that he saw the changed directory listings; he does not assert that he made any protest of the change.

Prior to 1956 the checks issued to appellant bore the designation “salary”; beginning in 1956 the checks were characterized as “drawing account.” From time to time, after 1956, appellant received other checks entitled “bonus.” According to appellant, the basis of the bonus payments was the net profit of the office for the previous year’s business.

Appellant testified that he made frequent requests of appellee for a detailed accounting, and that after each of these requests his “bonus” payments increased but no accounting was forthcoming.

Appellant presented three other witnesses who deposed that appellee had on various occasions told the witnesses that appellant was to receive a one-third share in the net profits of the office. As to two of these witnesses, appellee presented evidence of possible bias as to him — including. the fact that the two witnesses presently are in appellant’s employ. However, as to the witness Mrs. Moore no suggestion of bias on her part is made.

The witness Mrs. Moore related that she had prepared a paper (identified as plaintiff’s Exhibit B in the record) at the request of appellee. This paper sets out certain computations projected by the ap-pellee on the basis of a two-to-one division of the net profits. It is significant that this exhibit was prepared just after appellant had made rather insistent demand of ap-pellee for an accounting, and before there had occurred the final breach between the parties. Of additional significance is the testimony given by appellee that he had never heard any mention of the two-to-one division of profits until the instant suit was filed, some months after the exhibit was prepared.

The appellee admitted that he had agreed to raise appellant’s salary beginning January 1, 1956. His idea of the matter is best understood by this quotation from his evidence:

“Q-117. Am I correct in understanding you — that it is your position that the understanding between you and Homan was that you would pay him so much per week, which began at $125.00 and ended at $150.00, and if you thought the business justified it you would give him bonuses to be determined by you?
“A. Correct.”

. The appellee said that although he had not agreed to the claimed two-to-one division, he regarded that ratio as a good guideline; he said that it is generally considered sound practice among architects that the chief of the office receive twice the amount being paid the highest paid subordinate.

Upon the basis of this and other evidence heard, the Master Commissioner concluded and found that there was an oral agreement for division of the net profits on the two-to-one basis as claimed by appellant. However, the trial judge was of a different opinion. Since we conclude that the finding of the trial court was clearly erroneous on this vital point, we refer to the findings of the court.

In his prefatory comment, the trial judge called this “a very difficult case”; he pointed out that although wide difference is seen in facts and opinions expressed by the opposing litigants and their witnesses, “they were all trying to be sincere and helpful.” The trial court then proceeded on the theory that appellant’s claim is based upon a “partnership.” Factors which the court considered as reflecting an absence of a partnership were then made the basis for the court’s conclusion that the appellant had failed to establish his claim. In this we believe the circuit court erred. The appellant did not premise his case upon a legal partnership; therefore, no significance may be attributed to the absence of the usual elements of partnership.

Then the court dealt with the question whether there was an agreement to share the profits. That the “partnership” concept yet lurked in the court’s reasoning is evidenced by this opening comment about the profit sharing agreement: “Even according to plaintiff there was no contemplation of losses, but a contemplation of profits only * * *.” Then the trial judge observed: “Homan and his witnesses make out a strong case for the Vz-Yi split of net profits, while Lusk makes an equally strong case for his point of view that he would pay Homan what was right depending on the income when and as he could and that Lusk was to he the judge as to the amount paid.”

The difficulty we have with the trial court’s conclusion is that we are unable to say that appellee Lusk presented an “equally strong case for his point.” We have appellee’s own testimony that there was no such agreement, but it is set over against appellant’s testimony that there was. Here the equality disappears. Appellant buttresses his evidence with the change in office routine (the tax reports), the change in outward representations as to the nature of the relationship (the stationery and telephone listings), the increases in appellant’s compensation, the change in the matter of designating the checks from “salary” to “drawing account,” the “bonus” payments, the physical evidence that appellee had some insight into the two-to-one claim long before the suit (Plaintiff’s Exhibit B), and the testimony of three former employees of appellee asserting that appellee had stated to them that the two-to-one arrangement prevailed.

The lower court rejected the “partnership” (not claimed) and refused the profit sharing theory — but held “ * * * but there was an agreement to pay something.” On this theory it based the award now before us.

There was no evidence, from either side, to support this view. Since the chancellor has found there was an agreement to pay something, it follows that the “agreement” —the only agreement — -was on the two-to-one basis advanced by appellant. We do not base our ruling on the premise that there is merely a preponderance of evidence favoring appellant; it is our view that the evidence for appelant’s position — even as interpreted by the chancellor — is so convincing that the trial court’s opposite conclusion is clearly erroneous. CR 52.01.

Our view that there was an agreement for a two-to-one split makes necessary a consideration of the respective claims of the parties as to what ultimate sum, if any, remains due appellant on that theory. The Master Commissioner, having accepted the agreement theory, also approached the same problem. His findings in this respect were that appellant should recover $11,976.16, plus one-third of any sum, not exceeding $5,753.70, collected by appellee from Board of Education of Greenup County as compensation for architectural services performed for it prior to September 16, 1960.

There is substantial agreement between the parties as to the actual income and expense figures for the years 1957 through 1959. The difficulties arise as to the proper treatment of income received in 1956 which arose from services performed in 1955; likewise, problems are presented with respect to appropriate handling of income and expenses accrued but not received or paid as of September 16, 1960. No useful purpose would be served by undertaking any detailed statement of the various claims of the parties as to the appropriate figures. It suffices to say that we have carefully considered the entire record, including the findings of the trial judge and the commissioner. It is our conclusion that the findings of the Master Commissioner accurately resolve the fiscal differences between the litigants. As noted, the commissioner’s recommendation was for judgment to be awarded appellant for $11,976.16 and costs, plus an undetermined sum, based on one-third of any sum up to $5,753.70 received by appellee from Board of Education of Greenup County.

The judgment is reversed on the original appeal and affirmed as to the cross-appeal. The lower court is directed to enter judgment for appellant, consistent with this opinion, with such appropriate ancillary orders as may be required to finally fix the exact amount payable with respect to the fund to be collected from Board of Education of Greenup County.


author: STEWART, Judge.

text:
    Violet TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    As Modified on Denial of Rehearing Jan. 15, 1965.
    Charles C. Adams, Adams & Adams, Somerset, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Ass’t. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

This is an appeal from a judgment sentencing Violet Taylor to the penitentiary for a term of two years on a charge of carrying concealed a deadly weapon.

In Somerset in Pulaski County, around midnight on January 31, 1964, three officers of the law drove up near the parked car occupied by appellant. Seeing, so they testified, one “Fats” Spears getting out of the car with a fifth of whiskey in his hand, they went up to him and arrested him. As they were then near appellant, who was seated in the car with the right door open, they stated they saw in the front a quantity of beer on the seat and some whiskey on the floor board. They arrested appellant upon the charge of illegally having alcoholic beverages in her possession for the purpose of sale in local option territory. See KRS 242.230.

Appellant’s car was then searched, and on the floor next to the door on the driver’s side her purse was discovered. When opened by one of the officers a pistol was found in the purse. Appellant was taken to the city hall in Somerset where a warrant was issued by the Somerset Police Court on the liquor charge. ’Thereafter, she was indicted and tried for carrying concealed a deadly weapon. See KRS 435.230(1).

When the latter case came on for trial, a continuance was requested until the liquor charge, which was still pending in police court, could be tried and her guilt determined thereon. The trial court overruled the motion for a continuance. A trial was had, with the result heretofore mentioned.

At the conclusion of all the evidence, appellant moved the trial court to find her not guilty. This motion was overruled. A motion and grounds for a new trial was timely filed. Among other grounds, it was asserted the trial court “erred in instructing the jury as to the law in the case.”

Relying upon Thomason v. Commonwealth, Ky., 322 S.W.2d 104, it is contended- that the liquor charge for which appellant was arrested was still pending and undisposed of in the Somerset Police Court, and that the evidence obtained solely as a result of a search made after her arrest on the liquor charge was inadmissible in the concealed deadly weapon charge, of which she was subsequently accused, until she was found guilty of the offense preferred in the first named court.

In the Thomason case it was held that where the original charge, based upon the offense for which the accused was arrested, is pending in a court and, subsequently, the accused is charged in another court of a separate offense, no evidence which was obtained solely as a result of a search made after an arrest for the initial charge is admissible in the trial of the second charge until the offender is found guilty in the first court. See also Commonwealth v. Robey, Ky., 337 S.W.2d 34.

In the present case, the evidence, admitted without objection and uncontradicted, reflects that the original illegal possession of liquor charge was pending at the time of the trial under the indictment of carrying a concealed weapon.

Applying the foregoing principle of law to the facts presented, it was prejudicially erroneous to admit any evidence of the finding of the pistol.

Wherefore, the judgment is reversed and the case is remanded for consistent proceedings.


author: GREENHILL, Justice.

text:
    GLENS FALLS INSURANCE CO., Petitioner, v. C. C. PETERS, Respondent.
    No. A-10286.
    Supreme Court of Texas.
    Jan. 13, 1965.
    Rehearing Denied Feb. 24, 1965.

      Thompson, Coe, Cousins & Irons, Larry L. Gollaher, with above firm, Dallas, for petitioner.
    Ernest May, Fort Worth, for respondent.
   GREENHILL, Justice.

This is a suit by C. C. Peters to recover the full amount of a fire insurance policy issued by Glens Falls Insurance Company on Peters’ Fort Worth garage apartment. Trial was to a jury. The jury’s finding was favorable to the insurance company and against Mr. Peters. The trial court, however, entered judgment for Peters notwithstanding the jury’s verdict. The Court of Civil Appeals at Fort Worth affirmed. 379 S.W.2d 946.

The property in question was damaged by fire on August 21, 1962. A city building inspector visited the place and made a recommendation to the city that the building be razed. A week later, Peters received the following letter (not a printed form) from the Building Inspection Division of the City:

“An inspection has been made of [your] . . . property and we find a . . . duplex which has been deteriorated from fire, age, and lack of repair to the extent of being hazardous.
“This dwelling does not meet building requirements as specified in the Minimum Housing Standards Ordinance No. 4381 of the City of Fort Worth; and we are, therefore, requesting that this dwelling be razed . within thirty (30). days . . or you will be cited to appear before the Housing Standards Commission to show cause why this dwelling should not be declared a nuisance and condemned.
“Be sure to obtain a building permit before making any repairs to the dwelling or a wrecking permit before tearing the dwelling down.”

This was followed on October 1 by a printed form letter:

“You were given thirty (30) days in which to have the building razed or repaired to meet Ordinance requirements.
“Since you have not complied with our previous request, we are sending this second notice and extending the time until November 1, 1962. If at that time the building has not been rased or repaired you will be cited to appear before the Housing Standards Commission to show cause why this building should not be declared a nuisance and condemned.”

Also on October 1, 1962, Peters received a letter from Glens Falls Insurance. Company :

“Inasmuch as there exists a difference of opinion as to the amount of loss and damage . . . you may consider this letter as a formal demand for an appraisal as outlined in lines 101-18 of the Texas Standard Policy.”

Peters refused to comply with this demand. Instead, he simply tore down the building without applying for a repair permit or a wrecking permit. He then sued Glenns Falls for the full amount of the policy, contending that there was a total loss creating a liquidated demand under Article 6.13 of the Texas Insurance Code, V.A.T.S.

Peters alleged in his petition that “the garage apartment was damaged by fire in excess of fifty per cent,” and, therefore:

“By reason of the Fort Worth Building Code, Ordinance No. 4155, and the Comprehensive Zoning Ordinance, No. 3011, the plaintiff Peters was forbidden to repair the garage apartment . . Thus there was a total loss

The jury heard three qualified witnesses testify that the damage exceeded 50 per cent and two testify that it was less than 50 per cent. Parts of Ordinances 4155 and 3011, referred to in the petition, were read into evidence; but Ordinance 4381 relied on in the Building Inspection Division’s first letter to Mr. Peters was not introduced into evidence. There is no question before us as to the constitutionality of any of these ordinances.

In response to the single issue submitted, the jury found that a reasonably prudent uninsured owner, desiring to rebuild, “would have used the remnant of said structure for restoring said building.” The legal effect of this answer is that the jury found that there was not a “total loss” as that term is hereinafter defined. Peters’ motion for judgment notwithstanding the verdict was granted; and the following requested findings of fact were made by the trial court: (1) the fire damage to Peters’ building exceeded 50 per cent; (2) Peters was ordered by the Housing Official to raze the building, and could have gained no permit for repair; (3) reconstruction was forbidden by the Zoning Ordinance. These findings, if permissible, would support the theory of constructive total loss by virtue of the city ordinances.

Whether a building is an actual total loss by fire depends upon whether a reasonably prudent owner, uninsured, desiring to rebuild, would have used the remnant for restoring the building. Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S.W. 1068 (1896); Fire Ass’n of Philadelphia v. Strayhorn, 211 S.W. 447 (Tex.Com.App. 1919). Neither the pleadings nor the evidence establish a total loss under this test, and the jury so found. The question in this case then is: Was the building a constructive total loss as a matter of law by reason of the city ordinances? See Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103, 18 S.W. 337 (1886); Scanlan v. Home Ins. Co., 79 S.W.2d 186 (Tex.Civ. App. 1935, writ ref.). In other words, assuming the building was not totally destroyed by the fire, was it damaged to such an extent that the city ordinances would require its destruction? The Fort Worth ordinances are not operative unless the damage is greater than 50 per cent of the building’s value. Peters had the burden of requesting that issue and getting an affirmative jury finding thereon, and failed to do so. He made no objection to the court’s charge. Glens Falls objected to the submitted issue (actual total loss) as not being in conformity with the pleadings in that “the only allegation of total loss * * * is in connection with and tied by the pleadings to the action of the City of Fort Worth and/or the ordinance pleaded therein.”

Glens Falls’ contention is that Peters pleaded only constructive total loss under the city ordinance but allowed the trial court, without objection, to submit the case to the jury strictly on the theory of total loss by fire, thereby waiving his right to any judgment on the pleaded issue of constructive total loss. We agree with this contention.

Under the provisions of Rule 279, Texas Rules of Civil Procedure, an independent ground of recovery or defense not conclusively established by the evidence is waived if no issue thereon is given or requested. Producers Chemical Co. v. McKay, 366 S.W.2d 220 (Tex.1963); Grant v. Marshall, 154 Tex. 531, 280 S.W.2d 559 (1955); Wichita Falls & Oklahoma Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940); Connor v. Lane, 355 S.W.2d 223 (Tex.Civ.App. 1962, no writ hist.).

The independent ground of recovery of constructive total loss was not conclusively established by the evidence. There was conflicting testimony as to whether the fire damage exceeded SO per cent, the figure which determines the applicability of the city ordinances.

Mr. Peters contends the city building inspector’s determination that the building was damaged more than 50 per cent and should be razed is conclusive on the insurer. We cannot so hold under the facts ■of this case. The building in question was not condemned by the city. In fact the city never ordered that it be destroyed. Its first letter was in the form of a request to raze which left open the possibility of repairs. The city’s second letter said that since Peters had not complied with its “previous request,” he would have until November 1 to raze or repair the building, or show cause why it should not be condemned. The city took no further action, but Peters razed the building without applying for a permit. It does not appear in the record that Glens-Falls had notice of any action by the city or of Peters’ determination to tear down the damaged building. We hold that the per cent of damage is not conclusively established by the report of the building inspector. Hence, “constructive total loss” was not conclusively established. See New Hampshire Fire Ins. Co. v. Murray, 105 F.2d 212 (7th Cir. 1939) ; Security Ins. Co. v. Rosenberg, 227 Ky. 314, 12 S.W.2d 688 (1928) ; Monteleone v. Royal Ins. Co., 47 La.Ann. 1563, 18 So. 472, 56 L.R.A. 784 (1895); Zalk & Josephs Realty Co. v. Stuyvesant Ins. Co., 191 Minn. 60, 253 N.W. 8 (1934).

Finally, the trial court was not authorized to make findings of fact under Rule 279 where, as here, the omitted issue is an independent ground of recovery. Rule 279 T.R.C.P.; Austin v. Austin, 143 Tex. 29, 182 S.W.2d 355 (1944); Wichita Falls & Oklahoma Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940).

Our holding in this case makes it unnecessary to consider Glens Falls’ remaining points of error.

This brings us then to the judgment which should be entered. Glens Falls did not deny liability for a partial' loss. It only controverted the extent of the damages. The policy contained a provision authorizing either party to call for an appraisal in case of a failure to agree on the amount of loss. Glens Falls made demand for an appraisal, but Peters refused to comply. This refusal formed the basis of a plea in aba tement in the trial court. By agreement, the disposition of that plea was delayed pending the trial on the question of total loss which, if found, would have rendered the appraisal provision inapplicable. At the conclusion of the trial the plea in abatement should have been sustained. Accordingly, the judgments of the trial court and of the Court of Civil Appeals are reversed, and the cause is remanded to the district court with directions to sustain the plea in abatement.

      . Emphasis' is supplied throughout.


author: McDONALD, Presiding Judge.

text:
    Charles James WIGGINTON, Appellant, v. The STATE of Texas, Appellee.
    No. 37645.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.

      Paul W. Leech, Grand Prairie, Emmett Colvin, Jr., Dallas (on appeal only), for ap■pellant.
    Henry Wade, Dist. Atty., Tom Reese, James Zimmerman and W. John Allison, Jr., Asst. Dist Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the .'State.
   McDONALD, Presiding Judge.

The offense is burglary; the punishment ■enhanced by two prior convictions for felonies less than capital, life imprisonment in the state penitentiary.

The state’s evidence adduced from the witness, Floyd Davis, reflects that on March 17, 1964, Mr. Davis was the owner and in possession of a certain place of business known as the Sportsdrome Speedway in the County of Dallas, Texas, and that this place of business consisted in part of a business house, a concession stand stocked with some foodstuffs and cooking equipment and a race track. At 6 p. m. on March 16, 1964, he checked the lock on this business house, and it was secure, being locked with a padlock and hasp. Mr. Davis testified that he had not given anyone permission to break into and enter the building and remove any of the property contained therein. The door to the building was held shut with a spring, and anyone entering thereby would have to pull on the door to enter. On March 17, 1964, around 1 p. m. and immediately after the departure of appellant and his three companions from the business house in question, Davis and a friend, Mr. Veorster, discovered the lock to the door had been pryed off and “busted”. He noticed some meat had been removed from the freezer inside the building and some kitchen utensils along with the meat had been placed on top of the freezer. These items had not been so located at 6 p. m. March 16, 1964. The meat from the freezer still had frost on it, and the frost had not begun to melt, although the temperature was about 70° F. The appellant was identified as one of the men he saw at the scene of the crime. R. G. Veorster testified he saw four men in a Mercury automobile drive up to said business house and leave their car, and he went to investigate. When he arrived at the building, some 200 yards distant, he saw three men inside the building and appellant standing outside with his head sticking in the door. Mr. Veorster identified appellant. When asked what he was doing, appellant answered “nothing”, and then Floyd Davis arrived and appellant and his three companions drove away in their car. He and Floyd Davis looked inside the building and discovered that some meat had been removed from the freezer and left on top of it. He and Floyd Davis then pursued appellant and stopped the car appellant was in and asked the occupants for identification and none was offered. Shortly thereafter, appellant and his companions “took off” in their car, real fast, at the direction of appellant. Mr. Veorster further related that he had considerable difficulty in stopping the car the second time, and that the driver thereof would not stop until it became necessary to display a pistol which he had brought with him for the purpose of target practice at the gun range on the Sportsdrome .Speedway.

Veorster and Davis then contacted the Grand Prairie Police Department who came out and took the four persons into custody.

The state adduced testimony from an Assistant District Clerk of Dallas County establishing from the criminal minutes of the District Courts the two prior convictions. A fingerprint expert established the identity of appellant by his expert testimony.

The trial court charged the jury upon the law of principals and upon circumstantial evidence. No objections nor exceptions were taken to the court’s charge.

We find the evidence sufficient to sustain the jury’s verdict.

Appellant urges in his brief and oral argument as error, the sole contention that when the indictment alleging the two prior felony convictions was read to the jury and proof thereon was heard by the jury prior to a finding of guilt upon the primary offense that he was denied the right to a fair and impartial trial, guaranteed him under the Constitution of the United States and various amendments thereto.

We observe that appellant made no objection to the reading of the counts in the indictment alleging the prior convictions, to the jury.

This precise question has been before this Court many times. Each time the contention here made by appellant has been denied.

We again, here and now, once more find such contention without merit. Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, cert. denied, 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661; Carso v. State, Tex.Cr.App., 375 S.W.2d 297; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189; Oler v. State, Tex.Cr.App., 378 S.W.2d 857; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253.

We have carefully examined the various informal bills of exception and find no-merit in any of them.

Finding no reversible error the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Anastacio MACIAS, Appellant, v. The STATE of Texas, Appellee.
    No. 37391.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 24, 1965.

      Hope, Henderson & Hohman, by James E. Hope (on appeal only), San Antonio, for appellant.
    J. Taylor Brite, Dist. Atty., Jourdanton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the felony offense of driving while intoxicated, with punishment assessed at four years in the penitentiary.

Patrolman Murphy, of the Texas Department of Public Safety, testified that about 12:30 A.M., he observed an automobile being operated in an erratic manner upon a public highway; that it travelled from the right shoulder to the left across the center stripe and back to the right shoulder and after coming within a no-passing zone it again travelled over on the left hand side; that after the use of the siren and red light on the patrol car the other car stopped on the right shoulder of the highway.

After the car stopped, Murphy saw the appellant, who was driving the car, get out ■on the driver’s side, and stagger as he walked to the rear of his car and in front of the patrol car. The appellant told Murphy that he had had four beers at one place and four at another; and appellant had much difficulty in locating his driver’s li■cense. Murphy testified that he smelled a strong odor of alcohol on appellant’s breath, that his tongue was thick, his speech impaired, his eyes glassy, and his walk unsteady, and from these observations he expressed the opinion that appellant was intoxicated.

The Justice of the Peace, before whom the appellant appeared shortly after his arrest by Officer Murphy, testified that in his opinion the appellant was intoxicated.

Officer Langford testified that he saw Officer Murphy and the appellant shortly after they had left the office of the Justice of .the Peace, and he expressed the opinion that the appellant was intoxicated.

Proof was offered of the prior conviction, as alleged, and of appellant’s being the same person so convicted.

The appellant did not testify but called several witnesses.

The wife of appellant, who was with him, testified that although he had drunk three or four beers, he was not drunk when Officer Murphy stopped them; that appellant never drove on the left side of the highway; that the appellant told Murphy he was not drunk and offered to explain to him what was wrong with the car but the officer would not listen; that the car was “shaking” as appellant was driving it, before they were stopped; that the second day after Murphy stopped them, she was with the appellant when the operation of the car began getting worse and soon a wheel came off.

Several other witnesses testified that they saw appellant shortly before he was stopped by Murphy and that he was not drunk; and others testified that something was wrong with his car because it was whipping and pulling to the side while being driven.

It is insisted that the trial court erred in admitting the testimony of the arresting officer relating to several statements made by the appellant while under arrest. No objections were made during the trial to the statements as set out and complained of in appellant’s brief. Hence no error is shown.

Officer Murphy’s testimony to the previous extraneous offenses reveals no error, as no objections were made to such testimony. Further in the absence of any objection to the failure to limit such evidence in the charge, no error is presented.

The other contentions urged as error have been carefully considered in the light of the record and they present no error.

The evidence is sufficient to support the conviction and no error being presented, the judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Donald Lee HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 37758.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    No attorney of record on appeal for appellant.
    I)oug Crouch, Dist. Atty., Grady Hight ana R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted upon his plea of guilty and waiver of a trial by jury of the offense of robbery by assault, as charged in the second count of the indictment, the first count charging robbery by firearms having been abandoned by the state, and his punishment assessed at confinement in the penitentiary for five years.

At the trial it was stipulated and agreed by and between the state and appellant what the testimony of certain witnesses, including the injured party, would have been had they been present to testify.

The testimony as stipulated shows that on the date alleged the appellant entered the Hi-Lo Food Store in the city of Fort Worth and did, by assault and violence and by putting the injured party, M. R. Brashers, in fear of life and bodily injury, fraudulently take from him without his consent, the sum of $2374 in money with the fraudulent intent to then and there deprive the injured party of the value of the same and with the intent to appropriate it to appellant’s use and benefit.

The record contains no bills of exception and no brief has been filed on appellant’s behalf.

No error is perceived.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ronald SANDLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 37883.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Bryant, Glenn & Thomas, by Allen Glenn, Abilene (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted of the offense of •contributing to the delinquency of a minor. His punishment was assessed at a fine of $250.00 and confinement in jail for thirty (30) days.

Prosecution was upon complaint and information.

The State concedes that the complaint is fatally defective for the reason that the date the offense is alleged to have been committed cannot be ascertained from a reading thereof. It appears to be “on or about the 4th day of October A.D., 19 — ,”.

The complaint is not sufficient to support the information which alleges the date of the offense as “on or about the 4th day of October 1964”. The date set forth in the complaint is beyond the statute of limitations. McLaren v. State, 167 Tex.Cr.R. 302, 320 S.W.2d 141; Suzuki v. State, Tex.Cr.App., 280 S.W.2d 744; Herron v. State, 150 Tex.Cr.R. 475, 203 S.W.2d 225.

The judgment is reversed and the prosecution ordered dismissed.


text:
    Jim James MOST, Appellant, v. The STATE of Texas, Appellee.
    No. 37649.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.

      Don M. Wilson, Charles B. Rose, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jim Miller, Neil English and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for rape by threats; the punishment, 99 years.

On Friday night, September 6, while the husband of the prosecutrix was at work away from their trailer home, and their daughter, age two, was asleep in her room, the prosecutrix, after locking the doors and retiring was awakened about 1 A.M. by the sound of footsteps in her bedroom. Although she could not see the man’s face because the room was dark, she could see the shape of a man about the size of her husband standing at the foot of the bed, and asked, “Is that you, Doug (husband) ?” After the man replied “Yes” she- believed he was her husband. When she smelled the odor of perspiration and alcohol as the man placed his knee on the bed, she knew he was not her husband, and immediately ordered him to leave. Then, “He told me to hush up that he had a buddy with a gun on my baby.” This frightened her and she lay still. He ordered her to take her pants off and when she didn’t he reminded her that his buddy had a gun on her baby, but she lay there because she was too scared. After he repeated the statement about the gun and her daughter four times, she removed her pants. Then he ordered her to guide his private parts into hers, and when she did not do so he repeated his order two or three times and reminded her of his buddy who had a gun on her baby, and she placed his private parts into her female parts. The prosecutrix testified that at this time she was under the fear of threats toward her baby and also in fear of bodily injury to herself and her child, and that the act of intercourse was without her consent. When he had completed the act of intercourse, he told her to lie there about ten minutes and that his buddy would be in there with her baby. After the prosecutrix heard her assailant leave the trailer, she went to her daughter, whom she found to be all right. Being unable to reach her husband by telephone, she called neighbors who notified the police. The officers took her to a hospital where she was examined by a physician, who found male spermatozoa present in her genital organs.

About 3 A.M., Tuesday, September 11, two men who were neighbors of the prose-cutrix saw a man trying to open the front door of her home. As they approached, the man turned and when he was told by one of the witnesses to “freeze”, the other witness testified that, “He said he didn’t have anything to do with the attack, that he was only chasing some boys away from the trailer.” In a short time the officers arrived. They found a .22 calibre pistol in the waistband of appellant’s trousers and •took him into custody.

The written statement of the appellant made to Officer Boyd, which appellant ■signed, was shown to have been voluntarily -made, and complies with the provisions of Art. 726, C.C.P. After a hearing on the voluntary nature of the written statement, ■outside the presence of the jury, it was admitted in evidence. The statement reads in part, as follows:

“Last Friday evening September 6, 1963, * * * When I got to the front door of this trailer Friday night I turned the knob and the door came open a little ways and a chain was holding the door from the inside. I pulled the door out from the bottom :and squeezed through and got inside the trailer. I walked back to the bedroom and the woman raised up and •said, ‘Is that you, honey?’ I said, ‘Yes’, and she layed back down. Then she •spoke up and said, ‘You’re not my husband.’ I told her just to lay still and take off your pants. I got in bed with the woman and unzipped my pants and -her. When I got through I got up off the bed and went back to the front door. I had to unfasten a chain at the top of the door to get the door all the way open. I then left the trailer and went home.”

On cross-examination, a sister of the appellant testified that after midnight, September 6, she and her boy friend let the appellant, at his request, out of their ■car at a trailer court, and that he later came on home and told her he had raped a woman at the trailer court.

The appellant did not testify but called two witnesses who testified that he was at home during the time the offense of rape is alleged to have occurred.

Appellant contends that the evidence is insufficient to support a conviction on the ground that it shows only threats against a third person, the child, of the prosecutrix, and that no threats were made against the prosecutrix.

The indictment alleged that the offense of rape was committed by the use of force, threats and fraud.

The court submitted the case to the jury solely as one of rape by threats.

The offense of rape was defined in the court’s charge as the carnal knowledge of a woman without her consent and obtained by threats. Art. 1183, Vernon’s Ann.P.C.

In rape by threat, the threat as required by statute “must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.” Art. 1185, Vernon’s Ann.P.C.

From the statute it appears that rape by threats depends upon the seriousness of the threats.

The statute does not specify how, by or through what means the threats in a rape case must be made — that is, whether by some oral statement, written statement, or acts done. All the statute does in defining the term “threat” is to specify the effect and not the method or manner employed in making such threats.

It appears that the test for such cases is that whatever is said or done must be such as would operate upon the mind of the injured female to cause her to yield to the defendant and must be sufficient to create a fear of death or serious bodily injury.

The acts and statements of the appellant, as shown by the evidence, are sufficient to warrant the jury’s finding that the appellant was guilty of rape by threats.

The prosecutrix was asked and answered as follows:

“Q: I will ask you, please ma’m, at the time this man’s male organ penetrated your female organ if you were under fear of threats not only towards your baby but also in fear of bodily injury for yourself and your child?”
“A: Yes.”

The appellant moved to strike on the grounds that it was irrelevant and immaterial, and a conclusion of the witness. There appears no error in the refusal to strike.

The judgment is affirmed.

Opinion approved by the Court.


author: MOORE, Justice.

text:
    Thomas J. ALEXANDER, Appellant, v. HOUSTON OIL FIELD MATERIAL COMPANY, Inc., Appellee.
    No. 96.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 14, 1965.
    Rehearing Denied Feb. 4, 1965.

      Fred Lohmeyer, Golden, Croley, Howell, Johnson & Mizell, Dallas, for appellant.
    James L. McNees, Jr., McNees & Mc-Nees, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. The appellee, Houston Oil Field. Material Company, Inc., brought suit against the appellant, Thomas J. Alexander, on a promissory note bearing date of January 7, 1958, in the principal amount of $37,000.00 alleging that the corporation was the owner and holder of the note and that same was due and unpaid. In addition to the other allegations, appellee’s petition alleged that a true copy of the note was attached to the petition and marked as-“Exhibit A.” Neither the petition nor the attached copy of the note was sworn to or supported by affidavit.

Appellee then filed a brief motion for summary judgment alleging that:

“3. The pleadings on file show that there is no genuine issue as to any material fact, and that this Plaintiff, the moving party, is entitled to a judgment for full recovery upon such claim against said Defendant as a matter of law. * * *
“5. This Motion is made upon the pleadings on file in this cause and the exhibits attached thereto.”

The motion was not sworn to or supported by affidavits or any other extrinsic evidence. Appellant’s sworn answer consists of a general denial and of the affirmative defense of no consideration.

Upon the hearing of the motion appel-lee did not offer the original note or present an affidavit or other extrinsic evidence in support of the note. The judgment granting appellee’s motion for summary judgment recited as follows:

“ * * * and the Court having considered all pleadings on file, and the Court having heard the argument of counsel, the Court is of the opinion and finds that the pleadings show an absence of a genuine issue of any material fact, that the damages are liquidated, and that this Summary Judgment should be rendered for Plaintiff, who is entitled thereto as a matter of law; ”

The court rendered judgment against the appellant for a total sum of $55,352.00 from which appellant perfected this appeal.

The record before us consists of only the transcript. The original of the note was not attached to the pleadings or to an affidavit in support of the motion for summary judgment, or by deposition and is not otherwise accounted for.

The recitations in the motion as well as the recitations in the judgment demonstrate that Houston Oil Field Material Company was granted a summary judgment upon the pleadings alone. Our discussion and ruling will therefore be limited to a situation where the motion for summary judgment is directed solely to the pleadings.

Appellant’s first Point of Error contends that the summary judgment was improvidently granted because neither the original note, nor a certified or sworn copy thereof was attached to the appellee’s pleadings or motion and therefore appellant’s general denial alone was sufficient to create fact issues on every issue of the appellee’s claim, except those required to be denied under oath; hence, there was an issue of fact on whether appellee was the present owner and holder of the note. We find ourselves in agreement with appellant’s contention.

“Where a motion is directed solely to the pleadings, and is not supported bjr affidavits, depositions, admissions, or other extrinsic evidence, the motion is closely analogous to a special exception challenging the sufficiency of the opponent’s pleading as a matter of law. It may challenge the sufficiency of the petition to allege an enforceable claim, or assert that it shows on its face the existence of a defense, or it may urge that the answer fails to state a tenable defense. No supporting or counter-affidavits are necessary on such a motion. If the pleading, when liberally construed, is sufficient in law to show a fact issue, the motion will be overruled. * * * ” McDonald, Texas Civil Practice, Vol. 4, para. 17.26.3.

In 9 Tex.Jur.2d, page 293 it is said:

“And although a general denial does not put the plaintiff on proof of the execution of the instrument in suit it requires him to produce the instrument and introduce it as evidence or to show an excuse for not doing so.”

This has long been the settled law in Texas. See Bedwell v. Thompson, 25 Tex.Supp. 247; Jackes-Evans Mfg. Co. v. Goss, (Tex. Civ.App.) 254 S.W. 320; Webb v. Reynolds, (Tex.Com.App.) 207 S.W. 914.

The purpose of requiring proof of the fact that appellee was in possession of the instrument sued on was, of course, to show that the instrument had not been transferred or assigned to another; in other words, that the appellee was the then holder. Stanford v. Franklin, (Tex.Civ.App.) 312 S.W.2d 703, 705.

Unlike some other jurisdictions, and perhaps unfortunately, our rules of procedure authorize the defensive plea of general denial; and by the express terms of Rule 92, Texas Rules of Civil Procedure the plea puts in issue all matters pleaded by the adverse party which are not required to be denied under oath. Thus the defensive plea of general denial is sufficient in law to raise issues of fact with respect to every matter essential to the plaintiff’s right of recovery save only those matters required to be denied under oath, and puts the burden on the plaintiff of proving all such matters. Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656; Altgelt v. Emilienburg, 64 Tex. 150. Once this fact is recognized, it follows necessarily that a summary judgment on the pleadings may never properly be entered for a plaintiff when the defendant has a general denial on file — not even in a suit on a promissory note.

As in all other types of suits, a general denial in a suit upon a note puts in issue all matters pleaded by the plaintiff which are not required to be denied under oath. 9 Tex.Jur.2d 292. A general denial thus undoubtedly puts in issue allegations that the plaintiff is the owner or holder of the note, that the same is due together with the amount due and owing thereon. Proof of these matters is essential to the right of recovery. Neither the Negotiable Instruments Act nor the Rules of Civil Procedure require that any of them be denied under oath before they can be disproved. Traverse of them is not an affirmative defense to be specially pleaded under Rule 94, T.R.C.P.

In an ordinary trial on the merits the plaintiff could discharge this burden by producing and introducing the note into evidence. The only difference between an ordinary trial on the merits and a summary judgment proceeding, with the general denial on file, lies in the type of evidence required. In the summary judgment proceeding, appellee could have discharged its burden without producing and introducing the original note under Rule 166-A(e) T.R. C.P. by attaching a sworn or certified copy of the note to a proper affidavit or by serving such a copy with the affidavit. Without such proof, an unsworn pleading will not support a summary judgment. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274.

The holding of the Supreme Court in Southwestern Fire & Casualty Company v. Larue, Tex., 367 S.W.2d 162 is not thought to in any way alter the situation presented here. As we construe the holding of the majority, the case went off as a point of appellate procedure and merely held that since the appellant presented no assignment of error complaining of appellee’s, failure to attach the original note or to make proper proof thereof, the matter was not therefore properly before the court for review and hence the point was waived.

Appellee likewise contends here that the appellant waived his right to complain because he failed to object in the trial court of appellee’s failure to attach the original note to its pleadings or otherwise get the same before the court by affidavit or deposition. We cannot agree with this contention. “The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against him.” McDonald, Texas Civil Practice, Vol. 4, page 1392, para. 17.26 (VI) ; Gardner v. Martin, supra.

Unless the plaintiff can demonstrate that he is the present owner and holder of a negotiable note, he has no claim. A general denial imposes on the plaintiff the duty of producing and offering in evidence the note sued on. Robinson v. Brinson, 20 Tex. 438, 440; Kinnard v. Herlock, 20 Tex. 48; Bond v. Mallow, 17 Tex. 636, 637. In face of the general denial the question of whether the appellee was the owner and holder of the note was a question of a material fact. As pointed out before, this fact could have been established and the appellee’s burden discharged by attaching the original note to the petition or motion for summary judgment. If appellee had sought summary judgment on proofs rather than on pleadings, this fact could have been established by a simple affidavit stating that it was the owner and holder of the note and by attaching thereto a sworn copy of the note. With such proofs, appellee failed to discharge its burden of proof.

Appellant’s remaining Point of Error presents the additional contention that the granting of the summary judgment was improper because appellant’s sworn plea of no consideration raised an issue of fact. In view of our ruling on the first Point of Error, a discussion of this point is not essential; however, we will briefly discuss our view of the matter.

Appellant’s sworn pleading alleging his affirmative defense of no consideration fails to set forth any facts demonstrating how or why the consideration failed. It is therefore nothing more than a legal conclusion. The burden of proof on the issue of “no consideration” being an affirmative defense rested upon the appellant. The answer fails to demonstrate that there is a fact issue to be determined in connection with the existence of consideration.

If the effect of the motion for summary judgment is to be considered to be analogous to a special exception challenging the sufficiency of the opponent’s pleading to show issues of fact, we think the appellant’s plea of only “no consideration” was insufficient to raise an issue of fact. Appellant would be required to show the facts upon which his plea was founded, as was done in Burkett v. Cluck Grain Co., (Tex.Civ.App.) 266 S.W.2d 425. In face of a motion for summary judgment, the general rule is that a pleading by the opposite party setting forth only legal conclusions is insufficient to create a fact issue. Jones v. Willoughby, (Tex.Civ.App.) 312 S.W.2d 426, 429; Lewis v. Ada Employees Credit Union, (Tex.Civ.App.) 383 S.W.2d 864. The point is therefore thought to be without merit.

In view of our ruling in connection with appellant’s first Point of Error, the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: DUNAGAN, Chief Justice.

text:
    John B. CHESTER et al., Appellants, v. Robert A. JONES, Appellee.
    No. 98.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 21, 1965.
    Rehearing Denied Feb. 11, 1965.

      Charles S. Chester, Shank, Irwin & Chester, Lloyd Elliott, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellants.
    William P. Fonville, Goldberg, Fonville, Gump, Strauss & Hauer, Dallas, for appel-lee.
   DUNAGAN, Chief Justice.

This is a suit by Dr. Robert A. Jones for an accounting of benefits under the terms of a written contract by which he was associated with appellants in the practice of medicine in Lancaster, Texas. The trial court, without the aid of a jury, rendered judgment for Dr. Jones in the amount of $38,536.37. Appellants have appealed, complaining that the judgment for appellee was erroneous because the trial court incorrectly calculated the amount owed Dr. Jones in the accounting under the terms of the contract.

On February 15, 1952, Dr. John B. Chester and six other medical doctors, by written agreement, associated themselves for the general practice of medicine, surgery and allied arts under the firm name of The Chester Clinic. Thereafter, in June, 1952, appellee, Dr. Robert A. Jones, was employed by the clinic and in September, 1952, was admitted as a member of the association. During the time Dr. Jones was associated with appellants, he practiced in the Lancaster, Texas, branch of the clinic. The association of Dr. Jones with the clinic did not prove satisfactory to the other associates and on June 30, 1960, the association of Dr. Jones was terminated by the other associates in full compliance with the terms of the contract.

The contract contained a provision relating to the rights and duties of the respective parties during the time they were associated. It provided that Dr. John B. Chester should continue to own all the properties of the clinic, including accounts receivable, subject to the other provisions of the agreement, and rights in such properties should not vest in other parties to the contract. The contract also contained provisions relating to the rights and duties of the parties thereto in the event of the termination of the association of a member. It provided generally that in the event of the termination of the association of any party by death, disability or retirement, the terminating party or his heirs should receive certain specified benefits. This contract has been construed by the Austin Court of Civil Appeals in Jones v. Chester, 363 S.W.2d 150, error refused, n. r. e.

Dr. Jones filed a suit against appellants in June, 1961, for damages in the amount of $400,000.00 for wrongful discharge and for an accounting of benefits under the contract.

The trial court granted a summary judgment for appellants and Dr. Jones appealed. The Court of Civil Appeals in Jones v. Chester, supra, reversed and remanded the case holding that the discharge of Dr. Jones was made in full accordance with the terms of the contract, was not a wrongful discharge and Dr. Jones was therefore entitled to no damages.

By Point One appellants complain of the trial court’s judgment in awarding appellee $19,510.17 for his proportionate share of the total of the clinic’s accounts receivable. The contention is made that under the undisputed evidence the maximum which could be awarded under the contract is $9,403.40. The relevant portions of the contract relating to “accounts receivable” is found in Paragraph 11 as follows:

“In event of the death of any party hereto, or in event he shall become permanently disabled or permanently retire from the practice of his profession, in addition to the benefits set out in Paragraphs 6, 8, 9 and 10, above, such party, his heirs, executors, or assigns shall be entitled to a proportionate share of the total of all accounts receivable then carried on the books of THE CHESTER CLINIC which have not been outstanding for more than three years immediately preceding such death, disability or retirement. The amount which any party shall be entitled to under this provision shall be the proportion which his average percentage of participation in net profits for the three year period of his service to THE CHESTER CLINIC immediately preceding his death, disability, or retirement bears to the total of such accounts receivable; provided that no party shall participate in the accounts receivable under this provision until he has completed three years of service to THE CHESTER CLINIC. It being agreed and understood that the sum to which Dr. Chester shall be entitled under this provision shall he 30% of said accounts receivable.”
Paragraph 12 of the contract reads as follows:
“Any and all amounts to which any party may be entitled under this agreement by virtue of his death, permanent retirement, or disability shall be computed and totalled as of the date of such death, permanent retirement, or disability and shall be payable to him, his heirs, executors, administrators, or assigns, in equal monthly installments of $500.00 each, beginning on or before the 15th day of the month succeeding such death, resignation, retirement, or disability, and continuing on the 15th day of each succeeding month thereafter until the entire sum shall be paid. All payments shall be payable from gross income of THE CHESTER CLINIC.”

The undisputed evidence shows that appellee was discharged on June 30, 1960, at which time the. accounts receivable due and owing to the clinic within the three year period mentioned in Paragraph 11 amounted to $175,293.49. The total amount of cash ultimately collected from such accounts receivable, however, was $84,487.90. The remainder of such accounts is admittedly uncollectible and worthless. It was stipulated by the parties that the average percentage of participation of appellee in the net profits of the clinic for such three yea:: period was .1113. Thus, the trial court’s award in this regard represents .1113 of $175,293.49, amounting to $19,510.-17. Appellants assert that the proper amount to be allocated to appellee is .1113 of $84,487.90, the amount of the accounts receivable actually collected, amounting to $9,403.40. Therefore, it is apparent that the basic difference between the parties on this point is whether the amount to which appellee is entitled is to be calculated on the cash basis of the total amount of the accounts receivable, regardless of collecti-bility, or whether his percentage of the accounts receivable is to be calculated on the accounts which had in fact been collected at the time of suit. The trial court construed Paragraph 11 so as to award appellee the larger sum. As we construe Paragraph 11 of the contract, it provides that a disassociated member in addition to the benefits provided in other sections of the contract, is entitled to a percentage of the “accounts receivable” then carried on the books of the clinic which accounts had not been outstanding more than three years. No provision is made in Paragraph 11 for the payment thereof in cash. The paragraph merely awards the member a share of “accounts receivable” and provides a yardstick to determine the amount of “accounts receivable” to which the member is entitled. It is settled that “accounts receivable” are contractional obligations owing to a person on an open account. Valley Nat. Bank of Phoenix v. Shumway, 63 Ariz. 490, 163 P.2d 676, Supreme Court of Arizona; West Virginia Pulp & Paper Co. v. Karnes, 137 Va. 714, 120 S.E. 321, Supreme Court of Appeals of Virginia. Although no provision is made in the contract for the reduction of this benefit to a present cash value — yet the trial court’s construction of the paragraph, in effect, converts the accounts receivable to cash. The language used in the paragraph is not equivalent to “an amount of cash equal to the total of all accounts receivable.” The benefit conferred is just what it says — a proportionate share of “accounts receivable.” An “accounts receivable” acquires a cash value only to the extent of its collection. Paragraph 11 makes no attempt to define or state what the “cash amount” of the member’s proportionate share will be. It occurs to us that the value of such proportionate share of the accounts receivable must be determined by reference to the total amount of cash ultimately collected from the accounts. As stated in Huey & Philp Hardware Co. v. Shepperd, 151 Tex. 462, 251 S.W.2d 515, (1952), “The cash value of accounts and notes receivable is the amount which may be realized in cash from the sale or collection thereof.”

We are of the opinion, therefore, that the judgment of the trial court awards ap-pellee a benefit not justified by the clear express provisions of Paragraph 11.

Appellee argues in support of the trial court’s judgment that Paragraph 11 does not limit the disassociated member to a proportionate share of only such accounts receivable as shall thereafter be collected. This is true; but the contract does not say that the proportionate share of the “accounts receivable” shall be paid immediately in cash. Appellee says that he is entitled to benefits under the contract computed in terms of dollars, and that the language of Paragraph 11 merely provides the formula for the ascertainment of the amount of dollars payable. To apply such a construction to Paragraph 11 would indeed be adding a benefit to appellee thereunder and, in effect, rewriting Paragraph 11 for the parties. The provisions of Paragraph 11 do not provide a formula for the ascertainment of the amount of dollars then due appellee, but constitute a description of the benefit conferred therein. The contract conferred upon the disassociated member a benefit consisting of a proportionate share of “accounts receivable”- — not dollars. If the total of the accounts receivable is in fact collected, then appellee would have been entitled to the amount awarded by the trial court. We cannot say, however, that the dollar value of an “account receivable” can be ascertained until it has been determined whether the account receivable is collectible. If the parties to the contract had intended that the share of “accounts receivable” awarded to appellee under Paragraph 11 be converted to cash, or cash value at the time of the disassociation, they could have simply so provided therein. The language used does not justify the award to appellee of the “money value” of such accounts receivable.

Appellee further argues that if the determination of the amount due appellee must await a determination of the collecti-bility of the accounts receivable, the same is inconsistent with the provisions of Paragraph 12 of the contract whereunder it is provided that the amount of appellee’s benefits are to be totaled and computed as of June 30, 1960. Paragraph 12 of the contract does provide that any and all amounts to which a disassociating party may be entitled thereunder shall be computed and totaled as of the date of the disassociation. This is not inconsistent with the formula set forth in Paragraph 11 which determines the amount of “accounts receivable” to which appellee is entitled. The amount of the latter is definitely computed and totaled as of the date of disassociation, but that does not mean, in the absence of express provision therefor, that the same should be immediately converted and paid to appellee in cash. Moreover, the fact that Paragraph 12 provides for payment of any and all amounts to which the disassociating member is entitled in equal monthly installments of $500.00 each, beginning on or before the 15th day of the month following such disassociation does not have the effect of enlarging the benefits provided in Paragraph 11 from “accounts receivable” to cash.

A cardinal rule of construction is that agreements must receive a reasonable interpretation, according to the intention of the parties at the time of executing them, if that intention can be ascertained from their language. When the contract itself is not plain and unmistakable, but is open to more than one meaning, the probability that men in the circumstances of the parties would enter into one agreement as opposed to another are competent for consideration on the question as to what the agreement was which the written contract established. Portland Gasoline Company v. Superior Marketing Company, 150 Tex. 533, 243 S.W.2d 823, (1951). These parties, being educated men of business experience, must be held to have known that an “account receivable” is nothing more than a debt owing and that in the business world many “accounts receivable” prove to be, for various reasons, uncollectible and worthless. It does not comport with reason to conclude that the parties by Paragraph 11 intended to award a disassociated member a cash stun equal to his share of “accounts receivable,” the value of which could not be known until efforts to collect them had been exhausted. The more reasonable interpretation, it seems to us, is that the member received his share of the “accounts receivable” if and when collected.

We conclude that the trial court erroneously construed Paragraph 11 in the particulars noted and that under the undisputed and admitted facts herein, the maximum amount to which appellee was entitled thereunder was $9,403.40. Appellants’ point is sustained.

The appellants next contend by Point Two that the trial court erred in awarding to Dr. Jones $6,694.13 in lieu of unused vacation time, because the contract does not contain any provision entitling a disassociated member to a cash payment in lieu of such unused vacation time. This contention is sustained.

At the time Dr. Jones was discharged on June 30, 1960, he had accumulated two months’ vacation time pursuant to Paragraph 8 of the contract which reads as follows:

“Each party hereto, except as hereinafter provided, shall be entitled to an annual vacation of two (2) weeks duration upon completion of one year’s service to THE CHESTER CLINIC: upon completion of three (3) year’s (sic) service to said Clinic, each party shall be entitled to three (3) weeks annual vacation; and upon completion of six (6) years service to said Clinic and thereafter, each party shall be entitled to one month annual vacation. Such annual vacation time may be accumulated to a maximum of two months, provided that not more than one month annual vacation may be taken continuously without the concurrence of a majority of the other parties hereto.”

The trial court awarded Dr. Jones the cash payment of $6,694.13 in lieu of the two months’ vacation which Dr. Jones had not used at the time of his discharge. The trial court arrived at said sum by multiplying Dr. Jones’s percentage participation in the net profits of the clinic at the time of 'his discharge times the net profits of the clinic for the two months immediately after his discharge. The effect of the court’s action therefore gave Dr. Jones two months’ vacation with full pay after the date of his discharge. The appellants argue that the trial court was in error and that the contract does not provide that a disassociated member is entitled to pay in lieu of unused vacation at the time of his termination.

It is our considered opinion that Dr. Jones is not entitled to the award of $6,-694.13 given him by the trial court in lieu of unused vacation time because Paragraph 8 of the contract does not provide a cash benefit in lieu of the unused vacation time. Moreover, even if it could be said appellee was entitled to a cash payment in lieu of his unused accumulated vacation time under the express provisions of Paragraph 8, without the concurrence of the majority of the appellants, he could not get more than one month. In the absence of express contractual authorization, the appellee is not entitled to a cash payment in lieu of unused vacation time accumulated under the provisions of Paragraph 8.

Dr. Jones was not an hourly-paid employee and there was no limitation on the number of hours required to be devoted to his professional duties at the clinic. In Lim v. Motor Supply, Ltd., 45 Haw. Ill, 364 P.2d 38 (1961) the Supreme Court of Hawaii had the identical question before it and held that a discharged employee who was not working for an hourly wage and not working under collective bargaining agreement was not entitled to pay in lieu of unused vacation at the time of his termination. The court held as follows :

“There is an obvious distinction between a privilege to accumulate vacation time from year to year, and a right to be paid for the accumulated vacation if not enjoyed. If the first is permitted the situation will take care of itself; an employee who permits too much vacation time to accumulate will not be able to take it, and this will provide a practical limit on the accumulation of vacation time. On the other hand, if there is a right to draw vacation leave in pay, then the emphasis shifts from a right to a vacation, a 'beneficent surcease from regular duty’ (Nicholson v. Amar, 7 Cal.App.2d 290, 45 P.2d 697; Nolan v. State, Ct.Cl., 44 N.Y.S.2d 328; In re Dauber, 151 Pa.Super. 293, 30 A.2d 214; Butler v. United States, 101 Ct. Cl. 641) to a right to pay in lieu of vacation, something quite different, as the cited cases hold; see also Simson v. City of New York, Sup.App.T., 151 N.Y.S.2d 218.
“The cases cited by plaintiff-appellee upholding the right to vacation pay are with one exception cases of collective bargaining agreements under which it has been held that: ‘A vacation with pay is in effect additional wages.’ In re Willow Cafeterias, Inc., 2 Cir., 111 F.2d 429, 432, followed in In re Public Ledger, Inc., 3 Cir., 161 F.2d 762; Textile Workers Union of America v. Paris Fabric Mills, 18 N.J.Super. 421, 87 A.2d 458, affirmed 22 N.J.Super. 381, 92 A.2d 40; Pattenge v. Wagner Iron Works, 275 Wis. 495, 82 N.W.2d 172; Tynan v. KSTP, Inc., 247 Minn. 168, 77 N.W.2d 200; Division of Labor Law Enforcement v. Ryan Aeronautical Co., 106 Cal.App.2d Supp. 833, 236 P.2d 236, annotated 30 A.L.R.2d 351. Plaintiff-appellee further relies on National Manufacturers and Stores Corp. y. Slatton, 22 Labor Cases #67,-259 (1952), in which Wil-low Cafeterias was followed by the Tennessee Court of Appeals, but this only supports the right to current vacation, which is not in issue.
“We agree with defendant-appellant that if a right to draw vacation leave in pay exists, it basically is a right to be paid for overtime. That is, an employee having worked when he could have had vacation time, this constitutes overtime. So, in the present case, plaintiff not having insisted upon his annual vacation, and not having made an issue as to the opportunity to take it, was in the same position as any employee who finds that the proper discharge of the duties of his employment entails overtime.
“However, an employee on a monthly or weekly salary cannot collect for overtime work which is of the same nature as the work contracted for, in the absence of express agreement or uniform custom. A limitation on the number of hours required to be devoted to the work is not a basic part of the agreement in such case. Sharpe v. Arabian American Oil Co., 111 Cal. App.2d 99, 244 P.2d 83; Robinette v. Hubbard Coal Mining Co., 88 W.Va. 514, 107 S.E. 285, 25 A.L.R. 212; Wheatley v. Carl M. Halvorson, Inc., 213 Or. 228, 250, 323 P.2d 49, 59; Annotations, 25 A.L.R. 218, 107 A.L.R. 705; 35 Am.Jur., Master and Servant, § 66; 56 C.J.S. Master and Servant § 97 b; see also Sheets v. Eales, 135 Kan. 627, 11 P.2d 1020. The parties are agreed that plaintiff in this case was not under the protection of any wage and hour law, and the above principle is applicable. We deem the collective bargaining agreement cases inapplicable.”

Dr. Jones could have taken his vacation at his leisure during the time he was associated with the clinic, but he did not choose to do so. If the parties to the contract had intended that a discharged associate should be paid cash in lieu of unused vacation at the time of his discharge, they could very easily have so provided, but no such provision was incorporated in the contract.

Appellee cites the case In re Willow Cafeterias, Inc., 111 F.2d 429, 2 Cir., 1940 as an authority on this point. The In re Wil-low case was distinguished by the Supreme Court of Hawaii in the Lim case. It involved a claim and a bankruptcy proceeding by wrongfully discharging an employee who had been employed under a union collective bargaining agreement. Dr. Jones was not working under a collective bargaining agreement nor was he discharged wrongfully or unjustifiably, but rather was discharged “in accordance with the terms of the contract.”

Furthermore, assuming that appellee was entitled to a cash payment in lieu of his two months’ vacation time (and we do not so hold) the contract does not provide a formula or method by which it could be determined the amount of cash he would be entitled to receive.

By Point Five appellants complain of the judgment rendered in a lumped sum in the amount of $38,536.37 asserting that the contract provides that the benefits to which appellee may be entitled to thereunder should be paid at the rate of $500.00 per month as provided in Paragraph 12. While there might be merit in appellants’ position, we do not deem it necessary to pass upon the point because the total amount we have held appellee to be entitled would now be due under the provisions of Paragraph 12.

Appellants by their Point Six contend rhat “the trial court erred in rendering judgment for interest since the contract does not provide for interest and interest is now allowable in an accounting proceeding between partners prior to the termination of a balance.” In its judgment the trial court awarded Dr. Jones $6,694.16 interest from June 30, 1960, until the date of trial on the lump sum value of the cash benefits.

This proceeding is one in which there are mutual claims between the parties and there has been no delay in the accounting proceeding caused by misconduct on the part of appellants. If there has been any delay in accounting, it is caused by the demands of Dr. Jones. In his original petition on June 30, 1961, Dr. Jones in addition to other demands, sought $400,000.00 in damages from appellants to which the Court of Civil Appeals in Jones v. Chester, supra, found Dr. Jones was not entitled.

In Hairston v. Richie, 338 S.W.2d 263, no writ hist., the Fort Worth Court of Civil Appeals in finding that interest was not due in the partnership accounting held as follows:

“Another point is that it was error to render judgment for interest from October 31, 1956, the date the partnership was terminated, because there was neither pleading nor proof to sustain it. We think this point is well taken. Appellees prayed for judgment for debt and for their interest in the partnership properties, and for general relief. It has been held that where the date when money should have been paid is reasonably determined from the evidence, interest may be allowed from that date under a prayer for general relief. Trevathan v. G. M. Hall & Son, Tex.Civ.App., 209 S.W. 447. On the other hand, the general rule seems to be that no interest is allowed on partnership accounts prior to the time when an accounting is had and the balance is ascertained, unless an accounting has been delayed through misconduct or fraud. Corralitos Co. v. Mackay, 31 Tex.Civ.App., 316, 72 S.W. 624. * * * ”

Also, in Jones v. Mitchell, 47 S.W.2d 371, (Tex.Civ.App.) writ ref., the Dallas Court of Civil Appeals held as follows in finding that the trial court did not err in refusing to allow interest:

“Appellee complains that this court, in response to a proper cross-assignment of error, should have allowed interest on the amount found in favor of appellee at the rate of 6 per cent, per annum from January 1, 1927 to the date of the judgment, and reform the judgment of lower court to this extent. We do not think the court erred in the refusal to allow such interest. This was a partnership in which each party claimed an indebtedness against the other party; we do not think there was a final accounting between them until the trial of the case. Appellee in his written argument states the rule that we think applies to this case under the facts above stated. This rule is, in the language of appellee, ‘interest is not allowed on partnership accounts prior to the time an accounting is had, and the balance ascertained.’ Prior to the trial, each party was contending the other owed him.”

We might further point out that the contract itself does not provide for interest and there has not yet been a balance ascertained between Dr. Jones and appellants. This point is sustained.

Having determined that appellee was not entitled under the contract to the awards for vacation pay in the sum of $6,694.13 or interest in the sum of $6,994.16 and having further determined that the amount to which appellee was entitled for “accounts receivable” was $9,403.40 the judgment of the trial court is reformed so as to allow appellee to recover from the appellants, and each of them, the total sum of $18,064.-63, with interest from the date of the judgment of this court until paid at the rate of six per cent per annum.

We have considered appellants’ Points Three and Four and they are each overruled.

Judgment as reformed affirmed.