author: MOORE, Justice.

text:
    AMERICAN HOME FENCE COMPANY, Appellant, v. Bart H. HIMES and Erman G. Tate, d/b/a Himes & Tate Redwood Supply, Appellees.
    No. 17.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 9, 1964.
    Rehearing Denied Jan. 30,1964.

      W. B. Pope, Dallas, for appellant.
    Neil Brans, Brans & Berryman, Dallas, for appellees.
   MOORE, Justice.

This is an appeal from a summary judgment! Designating the parties as they appeared in the court below, plaintiffs, Himes and Tate, d/b/a Himes and Tate Redwood Supply/ filed suit against American Home Fence Company, seeking to recover the sum of $1,780.33, which they allege to be the balance due upon an account with the defendant for the sale and delivery of various items of wares and merchandise according to their, itemized invoices. They also sought to recover attorney. fees in the amount of $575.00.

The 'defendant, American Home Fence Company, duly and timely filed its sworn answer1 which reads as follows:

“The account which plaintiffs have sued on herein is not wholly just or true for the reason that the materials inventoried in the statement of the account” * * * “were of such quality and grade lower than that for which the prices shown in such statement ’were charged, that- such account as to the prices'of the various items of materials shown' in said statement should be adjusted lower and to the extent of the difference in the prices for such items as shown-in- such statement and as same should have been shown and such account is not just and true and is not owed by this defendant to such extent.”

The answer was sworn to by Alvin B. Walker, President of American Home Fence Company.

Plaintiffs thereafter filed their motion for summary judgment, which motion incorporated the original petition including the sworn account and was further supported by the affidavits of each of the plaintiffs.

Plaintiffs in their original petition, which is a part of the motion, assert that defendant agreed to pay the prices charged for the material, and that they were reasonably worth such amount; in plaintiffs’ affidavits attached to this motion, they do not assert any agreement was reached on prices, but that the prices were fair, reasonable and the prevailing market price for the material of the quality and quantity furnished.

Defendant, American Home Fence Company, failed to file any controverting affidavit or reply to the motion, but relied upon his sworn answer to the petition as joining the issue. After a hearing on the motion, the trial court sustained the motion and granted judgment to plaintiffs for the full amount sued for as well as attorney’s fees from which judgment and ruling appellants perfected this appeal.

By point two in the brief, defendant takes the position that the filing of the sworn denial alone, without controverting affidavit joins the issue on the justness of the account, thereby creating a question of fact, and therefore the court erred in granting a summary judgment. Plaintiffs, on the other hand, take the position that, since they have filed additional affidavits in support of their motion for summary judgment, defendant, in order to create some issue of fact, likewise then has the burden of filing, in addition to his verified answer, some evi-dentiary matters which would raise an issue of some material fact. .

Although no attack had been made on the sufficiency of the defendant’s sworn denial, it occurs to us that the same satisfies the requirements of verified pleas under Rules 93 and 185, Texas Rules of Civil Procedure. Towne Indus. Equipment Co. v. Marmosaic, Inc., Tex.Civ.App., 358 S.W.2d 755; Basse Truck Line, Inc. v. Strickland Transp. Co., Tex.Civ.App., 359 S.W.2d 477.

As we construe the cases that have dealt with the combination use of both Rules 185 and 166-A, T.R.C.P., we have concluded that suits on verified accounts are in the nature of special proceedings, having been specially provided for by Rule 185. Since this suit was brought under the provisions of that rule, we are satisfied that Rule 185, T.R.C.P., as amended, is the rule which governs suits upon verified accounts. Berning, Inc. v. Waggoner, Tex.Civ.App., 247 S.W.2d 570. Such being the case, we have concluded that plaintiffs were not entitled to a summary judgment under the provisions of Rule 166-A, T.R.C.P. We deem the following quotation from Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235, no writ hist., as being illustrative of the rule to be applied here:

“But aside from these considerations, appellee’s right to summary judgment is not sustainable in face of the Burtis sworn denial of account. A counterpart of Rule 166-A, Summary Judgment, is Rule 185 for speedy ascertainment of fact issues in a suit on sworn account; it providing that in absence of an affidavit of denial, the opposing party ‘shall not be permitted to deny the account.’ Conversely, an affidavit by a defendant denying the justice of a sworn account has the effect of neutralizing the affidavit thereto made by the plaintiff. ‘Upon filing of the denial the plaintiff’s account stands as though it had not been verified; its character as prima facie evidence is destroyed, and the burden rests upon the plaintiff to prove his case as at common law.’ 1 Tex.Jur., p. 354; Continental Lumber & Tie Co. v. Miller, Tex.Civ.App., 145 S.W. 735. So, in the case at bar, defendant’s sworn denial has placed in issue the correctness of all items constituting the account in suit. Genuine issues of fact being apparent in the record, the provisions of Rule 166-A obviously do not apply.”

The decision in the Burtis case was followed in Basse Truck Line, Inc. v. Strickland Transp. Co., supra; Opryshek v. McKesson & Robbins, Inc., Tex.Civ.App., 367 S.W.2d 357; Jones v. Eames, Tex.Civ.App., 369 S.W.2d 524. Since the record discloses material issues of fact, it is our opinion that the summary judgment in this case was improperly granted.

Our conclusion reached on the matter of the summary judgment in the main case, renders unnecessary a discussion on appellants’ first point, assailing the award of the $575.00 attorney fees under Article 2226, Vernon’s Ann.Tex.St.

For the reasons set forth, the judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    Clinton JONES, Appellant, v. The TRAVELERS INSURANCE CO., Appellee.
    No. 6660.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1964
    Rehearing Denied Feb. 5,1964

      Bates & Brock, David J. Nagle, Houston, for appellant.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Law of the State of Texas. Judgment was rendered for plaintiff, based upon jury findings, for total temporary incapacity for 46 weeks and' permanent partial incapacity. The parties will be referred to here as they were in the trial court.

It was stipulated that plaintiff had' an average weekly wage of $91.40, and the-jury found his wage earning capacity to be $81.00 per week during partial incapacity. Plaintiff contends the trial court should have disregarded this finding of the jury, and should have found as a matter of law that plaintiff had only a nominal wage earning capacity. We interpret this to be a “no evidence” question, which we must determine by considering only the evidence favorable to the jury verdict, and disregarding all other.

Plaintiff contends that he received a back injury, which, through the mechanism of accompanying pain and anxiety, aggravated a condition of hypertension or high blood pressure further aggravating a pre-existing condition of arteriosclerosis, which resulted in a blockage of the artery in his right thigh which ultimately resulted in the loss of plaintiff’s right leg. The date of the injury was May 15, 1959, and the operation to amputate plaintiff’s leg was May 18, 1960. It was defendant’s theory of the case that there was no connection between the back injury and the high blood pressure which brought on the amputation of the leg.

Dr. Thomas Lombardo testified he examined the plaintiff and his diagnosis was Hypertensive Cardiovascular disease. He testified this condition was not related to the incident on May 15, 1959 when the plaintiff felt back pain on bending. He also testified the event described, that is, bending and pain, could not have accelerated or aggravated the condition plaintiff had.

Dr. M. E. Faulk, Jr., testified he examined plaintiff in March, 1960. In his opinion plaintiff had recovered from the muscle sprain he received May 15, 1959. This doctor said he found periferal arteriosclerosis and moderate hypertension. He was asked the following:

■“Q. Then, do you have an opinion as to whether this instant that he has described to you of May 15, 1959, brought about this High Blood Pressure?
“A. No. His Blood Pressure was not particularly high, at the time I examined him. And, it was primarily a matter of Arterial Sclerosis. But, that’s as I say, a Metabolic disease, and not the result of an injury.
“Q. Well, could the incident he described to you, May 15, 1959, and assuming further that the incident was that he stooped over to pick up a hose and felt a pain in his back, or a catch in his back, or some trouble in his back, do you have an opinion as to whether that in any way aggravated this Arterial Sclerosis?
“A. I don’t see how it could.
“Q. Or, changed it in any way?
“A. No.
“Q. Incited it? Flared it — ?
“A. As I say, this is not a traumatic thing, this is a Metabolic thing. This is an alteration of the body’s method of handling fat.”

It is apparent from the manner in which the jury answered the special issues submitted to them, that they found no connection between the back injury of May 15, 1959 and the loss of plaintiff’s leg. The evidence supported the finding of the jury and the point is overruled.

The jury found that plaintiff had sustained a compensable injury in 1951, which contributed 5% to his present incapacity. The jury also found that plaintiff sustained a compensable injury in 1956 which contributed 5% to his present incapacity. However, the trial court, over plaintiff’s objection, also submitted the following issue:

“If yóu have answered Special Issue No. 16A ‘It did contribute’, or Special Issue No. 18A ‘It did contribute’, then in either of such events answer the following:
“SPECIAL ISSUE NO. 20
“From a preponderance of the evidence what percentage of plaintiff’s incapacity, if any, after May 15, 1959 was caused solely by the injury, if any, of May 15, 1959?
“Answer by stating a percentage, or answer ‘None’.
“Answer: 5%”

The submission of this last issue was improper under the circumstances of this case. The Supreme Court of Texas recently held in Rufus Sowell v. The Travelers Insurance Company, reported on page 59, Volume 7, of The Texas Supreme Court Journal, that in a case in which the evidence shows a previously existing disease or condition, the trial court cannot submit an issue to the jury to determine the percentage of incapacity “solely” caused by the last injury. The Supreme Court says the issues must determine the percentage of incapacity caused by the prior compensable injury or injuries. The trial court in the present case secured a finding on each of the prior compensable injuries and all of the information is available in order to enter the correct judgment. The last special issue should have been disregarded by the court as surplusage. The plaintiff will recover 90% of 60% of the difference between $91.40 and $81.00, for a period of 300 weeks, which is $1,686.00, less the usual discount, for partial permanent incapacity.

Plaintiff has two points of error related to the amount of disability contending the findings of the jury that plaintiff’s incapacity was temporary and that the duration of plaintiff’s total incapacity was 46 weeks, were each contrary to the overwhelming preponderance of the evidence. This raises a question of fact for this court to determine by considering the entire record including the evidence supporting these findings of the jury and the evidence contrary to such findings. Considering all of the evidence on these points we cannot say these findings of the jury were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. King v. King, 150 Tex. 662, 244 S.W.2d 660.

Plaintiff complains of the action of the trial court in permitting defendant to introduce in evidence certain cross-interrogatories of Dr. W. J. Jinkins, Jr., on the ground that such cross-interrogatories were leading. Dr. Jinkins was selected by plaintiff voluntarily for examination and treatment. Counsel for plaintiff prepared direct interrogatories and counsel for defendant prepared the cross-interrogatories. On the trial of the case plaintiff offered in evidence the direct interrogatories, making Dr. Jinkins a witness for the plaintiff. It was entirely proper for the defendant to then offer in evidence the cross-interrogatories of Dr. Jinkins, even though the questions propounded may have been leading. The prohibition upon leading questions has no application to cross-examination. If a rule is established that leading questions cannot be asked on cross-examination in a deposition, a very valuable right would be taken from litigants. It would also mean a party to a suit could place himself in a better position by taking the testimony of a witness through deposition than by placing the witness on the stand. If such party could deprive his adversary of the right to ask leading questions on cross-examination, merely by taking a deposition of such witness, the result of such a rule would be both unfair and ridiculous.

The trial court permitted a witness called by defendant to testify that plaintiff was paid “sick-pay” following the injury made the basis of this suit. Plaintiff alleged manifest hardship and asked for a lump sum payment in his petition. Counsel for plaintiff asked the court to limit this testimony about payment of “sick-pay” to the issue of manifest hardship, which was denied by the court. The plaintiff had testified he knew the difference between an injury on the job and sick-pay. This testimony was therefore admissible both on the issue of manifest hardship and issue as to whether the injury sued upon was the producing cause of his incapacity. The acceptance of sick-pay by plaintiff is •some evidence in the nature of an admission as to the cause to which plaintiff attributed his incapacity. In any event, we feel the error, if any was made, was harmless. Rule 434, Texas Rules of Civil Procedure.

The other points are considered and overruled.

Judgment reformed and affirmed.


text:
    Bert KLIMIST, d/b/a Klimist Store Fixture Mfg. Co. and Klimist Store Fixture & Mfg. Co., Appellant, v. Ed BEARDEN, Appellee.
    No. 32.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 9, 1964.
    Rehearing Denied Jan. 30,1964.
    Carl W. Wilson and William C. Baker, Wynne, Jaffe & Tinsley, Dallas, for appellant.

      Robert L. Blumenthal, Carrington, Johnson & Stephens, Dallas, for appellee.
   MOORE, Justice.

This is a suit upon a sworn account. In a trial before the court without the intervention of a jury, the trial judge entered judgment for the plaintiff below for the reasonable value of certain art work, newspaper layouts and advertising services performed by the plaintiff, Ed Bearden, for the defendant, Bert Klimist, together with attorney’s fees, to which judgment and ruling of the court defendant has perfected this appeal.

Since the only question involved in this appeal is the alleged error of the trial judge in excluding certain evidence directed to the reasonable value of the work and services performed by the plaintiff, the defendant filed a statement of the point upon which he relies, and now brings this case before this court upon an abbreviated or partial statement of facts, in accordance with Rule 377-a, Texas Rules of Civil Procedure.

The single point of error relied on for reversal is as follows: “The Trial Court erred in refusing to admit evidence sought to be introduced by the Appellant as to the adverse effect that an incorrect address appearing in the ads prepared by the Appellee would have on the reasonable value of such ads.”

Defendant contended that since the wrong business address was inserted on two of the advertising plates which were furnished him by the plaintiff, that the reasonable value of the plates as prepared with an incorrect address became an issue.

In an effort to prove what the reasonable value of such advertising plates and services of the plaintiff were worth containing an incorrect address, defendant called one Roy Stein to the stand and, after qualifying him as an expert along that line, propounded the following question. “Q. Now, if you prepared the two ads which you have before you for a client and inserted the wrong address in the ad, what charge would you make for your work ? ”

The question was objected on the ground that same was a hypothetical question and the proper predicate had not been laid, which was sustained by the court. Defendant then perfected his bill of exception by the following question and answer. “Q. Mr. Stein, what would be your charge for the work done in Plaintiff’s Exhibits 3 and 4 before you if your office had included an incorrect address of your client?” “A. If the customer — if my client had okayed the proof, then I would hold him responsible. If I did not show him the proof and get an okay on it, then, I would assume responsibility for it myself and I am afraid I wouldn’t be able to charge for it if I had either the wrong address or if there was the price stated in the ad which was wrong.”

The action of the court in excluding the question and the answer thereto is the error complained of for reversal. We overrule the defendant’s contention.

At the conclusion of the trial, defendant requested the Trial Court to file findings of fact and conclusions of law. The Trial Court thereupon filed extensive findings of fact and conclusions of law which amply support the judgment of the court. Among other things, the court found that the defendant accepted the benefits of “such services and goods subsequent to his receipt of the statement of charges, and by his refusal upon demand to return the artwork to Plaintiff, and his subsequent acceptance of benefits constituted an agreement to pay such charges”, and that, as a matter of law, defendant was estopped to contest the reasonable charges. The court further found as a matter of fact that all of the charges made by the plaintiff on all of the various items were reasonable.

As was pointed out above, the record is before us without a complete statement of facts. The appellant did not challenge or except to the judgment as being unsupported by the evidence. Under this state of the record, it is impossible for us to know whether the excluded evidence was cumulative of other evidence which was admitted or whether the exclusion of such evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

It is incumbent upon appellant to show that the exclusion of evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Rules of Civil Procedure, rule 434. He had the burden of showing that the exclusion of such evidence was error and probably resulted to his prejudice. If he brings a record which shows the proceedings only in part, every reasonable presumption will be indulged in favor of the court’s ruling, and the cause will not be reversed unless it appears that upon no possible state of the case could the ruling be upheld. In order to justify a reversal on an ■incomplete statement of facts on the ground that the Trial Court erred in excluding testimony, the Appellate Court should ordinarily be able to see not only that the Trial Court erred, but that with reasonable certainty such ruling produced a substantial injury to the complaining party. Daniel v. Daniel, Tex.Civ.App., 128 S.W. 469, writ ref.; Torrey v. Cameron, 74 Tex. 187, 11 S.W. 1088; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191; Robinson v. Howard County, Tex.Civ.App., 287 S.W.2d 234; J. B. Chadwick v. Glens Falls Insurance Company, Tex.Civ.App., 340 S.W.2d 501; Gordon v. Aetna Casualty & Surety Company, Tex.Civ.App., 351 S.W.2d 602, error ref.

We might add that, in our judgment, the question as framed, as well as the answer of the witness thereto, was wholly immaterial because same did not inquire of the reasonable value of such goods and services but merely asked what practice the witness would have followed in the conduct of his business under similar circumstances.

The judgment of the Trial Court is affirmed.


author: McNEILL, Justice.

text:
    The GATES RUBBER COMPANY, SALES DIVISION, INCORPORATED, Appellant, v. Foy D. WOOD, d/b/a Wood’s Tire Company, Appellee.
    No. 6658.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1964.

      Pollard & Pollard, Tyler, for appellant.
    Barber & Seale, Jasper, for appellee.
   McNEILL, Justice.

This suit began as one upon account for tread rubber sold by appellant to appellee. The tread rubber was manufactured by appellant for use in recapping motor vehicle tires. Appellee filed answer and cross-action for damages alleging that at the time the rubber was purchased the seller knew it was to be used by him for recapping tires, that there was an express warranty that it was fit and merchantable for this purpose and, in alternative, there was an implied warranty that it was fit and merchantable for this purpose. Trial was before the court and it resolved itself into a contest over what warranty or warranties were made and what damages, if any, resulted to appellee. Appellant will herein be referred to as “Gates” and appellee as “Wood”.

The trial court rendered judgment in behalf of Gates against Wood on the account for $2,855.77, and in favor of Wood against Gates for damages in the sum of $10,573.20, and striking a balance, net judgment was in favor of Wood for $7,717.43.

Gates requested findings of fact and conclusions of law. In response thereto findings were made, but only three (Nos. 4, 5 and 18) are complained of by Gates. These findings are :

“4. Gates expressly warranted the fitness of the tread rubber it sold to Wood, in the form of a service warranty, which in this case was a guarantee that when the tread rubber is applied to a tire, that the tire will give satisfactory service.
“5. The usual implied warranty of fitness or suitability for the buyer’s purpose, is made applicable by the facts of this case, to the sale of the tread rubber from Gates to Wood.
“18. This left the recoverable damages actually sustained by Wood because of the defective Gates rubber at $10,573.20.”

Gates also complains of the court’s conclusions of law 1, 3 and 6:

“1. Gates breached its express and implied warranties of fitness and suitability, when it furnished Wood with defective rubber.
“3. Wood is entitled to be compensated by Gates for his actual damages sustained because of the defective Gates rubber, in the amount of $10,573.20.
“6. Wood is therefore entitled to a net recovery of and from Gates in the amount of $7,717.43.”

After the above findings and conclusions were filed Gates requested additional findings of fact to the effect that two express warranties existed: a shelf-life warranty which is an express warranty of fitness, and a service-life warranty which is an express warranty of merchantability of the tires using its tread rubber — and that there were certain conditions attached to each of these warranties in order that they may be effective. These conditions were to the effect that if the rubber did not prove as represented, written notice should promptly be given Gates along with the return of a sample of the tread rubber in question and the front part of the carton in which that particular item of tread rubber was shipped to Wood. In addition it was requested that the court find that Gates “ * * * impliedly warranted the fitness of its tread rubber for the buyer’s purpose — ”. The court declined these additional requests.

Was the court in error in declining these additional findings ? We have examined the statement of facts and have concluded that he was not. Mr. Cunningham, witness for Gates and its salesman who sold the tread rubber to Wood, testified his company warranted the fitness and suitability of tread rubber when properly applied to tires. Wood testified that when he bought this merchandise the salesman represented to him that the rubber was good and could be used in his recapping procedure; “they told me it was good rubber.” Cunningham also testified that his company had the two types of warranties sought to be established in the additional requests. But the question is not what practice the company followed in giving warranties on its tread rubber: the question is what warranty or warranties became a part of the sales contract made between Gates and Wood at the time the rubber was bought. Whether the two warranties described by him were made known to Wood at the time of the rubber purchase is left in doubt. The sale was made in December 1959. Cunningham saw Wood several times after that. The nearest the evidence comes to showing Wood knew of the warranties was Cunningham’s testimony : “Q. —Did you inform Mr. Wood of these warranties— A. Yes, sir. Q. —at the time you talked to him about it? A. Yes, sir.” S.F. 388, 389. But at which visit did Cunningham inform Wood? Was it the one when the rubber was sold or was it on a later trip when Wood was having trouble with it? In view of the trial court’s finding No. 4, there follows an implied finding that Wood was informed of the two warranties, shelf-life and service-life, at a later visit and not when he purchased the goods. Cunningham was also asked whether or not there were any conditions attached to these warranties and he stated in substance the conditions set out in the additional requests. There was no testimony to the effect that at the time the merchandise was purchased these conditions were made known to Wood. An express warranty is a matter of contract. 37-A Tex.Jur. 319. The minds of the contracting parties must meet on the terms of the contract to be bound thereby. The warranties involved in the present case rest wholly in parol. The burden was upon Gates to prove that its warranties and conditions sought to defeat Wood’s cross-action were a part of the sales contract. Davis Motors, Dodge & Plymouth Co. v. Avett, Tex.Civ.App., 294 S.W.2d 882. Mr. Hicks, witness for Gates, testified that the warranties described by the salesman Cunningham were more or less "company policy”. Whether he had reference also to the conditions of the warranties was not made clear. As stated above, there was no proof that the conditions were brought home to Wood or that he agreed thereto. Under these circumstances the trial court had the right to find that the conditions of the warranties never became a part of the contract. And whether we adopt the language of the express warranty as used by the trial court or take the language of the shelf-life and service-life warranties contended for by Gates — as applied to the facts of this case — -both, in effect, amount to a warranty of fitness for the purpose sold. Williston on Sales, Revised Ed., Vol. 1, Sec. 235, pp. 604-606.

Gates says that there may not be both an express warranty and an implied warranty of the same kind and as a part of the same contract. An implied warranty “is regarded as an inherent term of the contract, not necessary to be expressed, and having the same force as if stated in terms.” Word v. Cavin, 1 Head (Tenn.) 506. It is a warranty inferred or implied from the language of the contract and the facts and circumstances surrounding the parties at the time the contract is made. 37-A Tex.Jur. 336. It would, therefore, be improper to say that the same contract contains both an express warranty and an implied warranty of the same kind or to the same effect. Since the trial court has found that express warranty of fitness and suitability was made, his finding that implied warranty of fitness and suitability is without effect. Gates’ complaint that this finding is without support in the evidence is sustained. But the court’s judgment finds support in the express warranty or warranties of fitness and suitability. The trial court found from the testimony that the tread rubber did not measure up to the warranty or warranties made and that Wood thereby sustained damages.

Complaint is made that the trial court’s finding with reference to the express warranty is against the great weight and preponderance of the evidence. We have set forth above a summary of the evidence on this question. The complaint is without merit.

The judgment of the trial court is affirmed.


text:
    Kathleen G. DOUGLAS, Appellant, v. SOUTHWESTERN LIFE INSURANCE COMPANY, Appellee.
    No. 8.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 23, 1964.
    Rehearing Denied Feb. 6, 1964.

      David M. Kendall, Jr., Woodruff, Hill, Bader & Kendall, Wise & Stuhl, Dallas, for appellant.
    Swift, Walsh, McCarroll & Wood, Dallas, for appellee.
   MOORE, Justice.

This suit was brought by appellant against appellee to recover accidental death benefits under supplementary contracts attached to and made a part of two policies of insurance issued by appellee, Southwestern Life Insurance Company, upon the life of appellant’s husband, Sterling B. Douglas.

The two policies, one in the amount of $50,000.00 and the other in the amount of $40,000.00, were issued to Sterling B. Douglas in December, 1958 and May, 1960, respectively. To each of these policies was attached what is denominated as a supplementary contract captioned “Benefit for Death by Accidental Means”. Among other provisions under this caption the supplementary contract contains this provision:

“BENEFIT. The Company hereby agrees, subject to the terms and conditions of this contract, that it will pay to the beneficiary designated in the policy Fifty Thousand Dollars in addition to the amount payable under the terms of the policy if it receives due written proof that while this contract was in force the death of the Insured resulted directly from bodily injuries effected exclusively and independently of all other causes through external, violent and accidental means and within 90 days from the date of accident which caused such injuries, of which, other than in the case of drowning or internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, provided such death did not result from any of the risks which are expressly excluded herefrom.”

The language is identical in both contracts sued upon except in one the amount is $50,000 and in the other $40,000.

The facts, about which there is no dispute, show that the named insured, Sterling B. Douglas, was involved in an automobile accident bn June 4, 1961, in which he received serious and fatal injuries. Immediately upon being admitted to the hospital, he underwent surgery and was operated upon again twice in June, and once in August and September. He was in critical condition down to the date of his death. His physician, during most of the course of his hospitalization, considered it unlikely that he could survive. It was only because of the extraordinary medical measures taken by the medical staff that caused him to live as long as he did and had these measures not been taken he would have probably died within 90 days after the date of the accident. He died on October 2, 1961. This was 120 days after the accident in which he received fatal injuries causing his death. Within 90 days of the date of the accident the agent of the Company was notified and was told by the doctor and Mrs. _ Douglas that the insured would not and could not survive his injuries.

Appellee paid appellant as beneficiary the ordinary death benefits provided by the insurance policies but denied liability for accidental death benefits under the supplementary contracts on the ground that the death of the insured within 90 days from the date of the accident was a condition precedent to any liability of appellee under the supplementary contracts. This suit followed, and both parties moved for a summary judgment. The court below denied appellant’s motion and sustained appellee’s motion, and it is from this action that the appellant makes this appeal.

In her first point, appellant contends that the Trial Court was in error in construing the above-quoted portion of the supplementary contract to require, as a condition precedent to recovery, that death of the insured occurred within 90 days of the accident. By her second point, she contends that the Trial Court was in error in failing to construe the provision in the supplementary contract to require only that proof of loss be filed within 90 days of the date of the injury.

In construing the terms and conditions of the supplementary contract, and particularly the above-quoted provision, we have concluded that as a condition precedent to recovery, appellant had the burden of showing that the death of the insured occurred within 90 days from the date of the accident. The contention that the meaning of the above provision requires only that due written proof of loss be filed within 90 days of the date of the accident is untenable and cannot be sustained.

This is a suit upon a written con-tract of insurance and in order for the appellant to recover she must bring herself within the coverage provided for in the contract. To construe the contract as not re■quiring death to occur within 90 days after -the date of the accident would be to ignore the plain words of the policy. Until the ■conditions prescribed by the terms of the policy had been met there was no obligation on the part of the appellee. Burns v. American National Ins. Co., Tex.Com.App., 280 S.W. 762.

The policy did not, as contended by appellant, provide for payment by reason of ac- • cidental death regardless of the date of • death. Rather, the policy limited the payment of accidental death benefits to those that occurred within a 90-day period after -the injury that caused death. As we construe the contract, appellee promised payment of accidental death benefits if and ■only if the death of the insured resulted within 90 days of the accidental injury.

What was said in Crowe v. North American Accident Ins. Co., Tex.Civ.App., 96 S.W.2d 670, writ dismissed, applies with •equal force here.

“The doctrine announced in 1 C.J. 469, § 179, which seems to be well supported by the authorities, is that: ‘The standard accident policies, in addition to the provision for indemnifying the insured, against the results of accidental injuries, generally provide for the payment of a certain sum in the event ■of his death being caused by accident, ■provided death occurs within a specified time (usually 90 days) after the occurrence of the accident; and provisions so limiting the time within which death must occur to render the insurer liable, have been held to be valid and binding, and there can be no recovery for the death of the insured if it occurs more than the prescribed time after the accident, although within the terms of the policy.’ To the same effect see: Cooley’s Briefs on Insurance (2d Ed.) vol. 6, p. 5272; Brown v. United States Cas. Co. (C.C.9) 95 F. 935; Kerns v. Aetna Life Ins. Co. (C.C.A.8) 291 F. 289; Buford v. North American Acc. Ins. Co. (C.C.A.5) 3 F.(2d) 263; Barnett v. Travelers’ Ins. Co. (C.C.A.8) 32 F.(2d) 479; Walters v. Western & So. Life Ins. Co., 318 Pa. 382, 178 A. 499; Thompson v. Iowa State Trav. Men’s Ass’n, 179 Iowa, 603, 161 N.W. 655; Drinan v. Clover Leaf Casualty Co., 207 Mich. 677, 175 N.W. 176; Tuttle v. Pacific Mutual Life Ins. Co., 58 Mont. 121, 190 P. 993, 16 A.L.R. 601.”

Accord: Mullins v. National Casualty Company, 273 Ky. 686, 117 S.W.2d 928, 118 A.L.R. 331; 118 A.L.R. 334; 29A American Jurisprudence, para. 1163, at p. 308.

The uncontroverted facts show that the accidental injury causing the death of the insured occurred on June 4, 1961, but that the insured did not die until October 2, 1961, approximately 120 days after the accidental injury.

Appellant’s points one and two are accordingly overruled.

By her points three, four, five and six, appellant takes the alternative position that the provisions of the supplementary contract, and especially the above-quoted provision, is ambiguous thereby calling into play the rule of strong construction against the author of the policy. Appellant argues that the above-quoted provision is reasonably susceptible of three separate meanings. (1) That the company will pay the additional benefits if it receives due written proof within 90 days from the date of the accident showing an accidental death; or (2) that the company would make payment on the policy within 90 days; or (3) that it means that as one of the conditions of a recovery that within 90 days from the day of the accident there must he visible contusion or wounds on the exterior of the body.

If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. The converse of this is that a contract is ambiguous only when the application of pertinent rules of interpretation to the fact of the instrument leaves it genuinely uncertain which one of the two meanings is the proper meaning. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154. Where there is no doubt or there is insufficient doubt in the meaning of words to enable reasonable men to place more than one interpretation on this meaning, the courts will not presume the right to construe written contracts. Stated in another way, if there is no ambiguity in the provisions of the contract, there is no occasion for resorting to the well-known rules of construction. Those provisions in insurance policies which are clearly and definitely set forth in appropriate language and upon which the calculation of the company is based should be preserved and maintained unimpaired by loose and ill-considered interpretations. United States Fire Insurance Co. of New York v. Rothwell, Tex.Com.App., 60 S.W.2d 759; Williams v. Union Central Life Insurance Co., 291 U.S. 170, 54 S.Ct. 348, 78 L.Ed. 711, 92 A.L.R. 693.

A careful analysis of the provision under attack will, reveal that the provision is not subject to any one of the constructions advanced by appellant. The contract provides that “The Company hereby agrees, subject to the terms and conditions of this contract, that it will pay to the beneficiary * * * Fifty Thousand Dollars in addition to the amount payable under the terms of the policy,” provided the five following conditions are met: (1) if it receives due written proof; (2) that while the contract was in force the death of the insured resulted directly from bodily injuries effected exclusively and independently of all other causes through external, violent and accidental means; (3) and within 90 days from the date of the accident which caused such injuries; (4) of which, other than in the case of drowning or internal injuries revealed by autopsy, there is a visible contusion or wound on the exterior of the body; (5) provided death did not result from any of the risks which are expressly excluded herefrom.

Appellant further urges that since the policy did not expressly exclude a death occurring more than 90 days after the accident under the “RISKS EXCLUDED” clause, the attempted limitation under the “BENEFITS” clause of death within 90 days creates an ambiguity and therefore such limitation should be construed against the company, or be construed to mean only that proof of loss was required to be furnished within 90 days.

In answer to appellant’s argument on this point, as we construe the policy, the only benefits promised under the supplementary contract are for those losses occurring within 90 days. The “within 90 days” provision excludes all risks after the expiration of 90 days. There is no reason for an exclusion to a risk which has been specifically excluded by the terms of the policy and therefore the failure to list same under the exclusion clause would not create an ambiguity. Shelton v. Equitable Life Assurance Society, 28 Ill.App.2d 461, 171 N.E.2d 787.

To construe the provision as requiring only the proofs of loss to be filed within 90 days, as contended by appellant, would be to say that the parties to the contract intended to disregard the provisions of Article 5546, Vernon’s Ann.Civ.Stat., prohibiting a stipulation for time of filing proof of loss to less than 90 days. The court will adopt that construction which conforms to the requirements of the law, rather than a construction which will impute to the parties an intent to violate the law. First Texas Prudential Ins. Co. v. Sorley, Tex.Civ.App., 272 S.W. 346, 351; American National Ins. Co. v. Ingle, Tex.Civ.App., 129 S.W.2d 426, affirmed 137 Tex. 189, 152 S.W.2d 1098, 135 A.L.R. 1325.

From what has been said, it is our opinion that the above-quoted provision is reasonably susceptible to only one meaning and that is, that as a condition precedent to recovery it must be shown that death occurred within 90 days after the accidental injury, and that since there is no ambiguity, there is no occasion for this court to resort to the various rules of construction as urged by the appellant.

Points three, four, five and six are overruled.

Under points seven and eight, appellant says that in view of the serious injuries and resulting condition of the insured, and in view of the fact that evidence of the attending physician shows that the deceased would have died within 90 days from the date of the receipt of injury had he not been kept alive by the extraordinary medical measure, the company ought not to be able to escape liability only because his life was prolonged. Appellant further argues that since “death” was not defined in the policy, that “death” should be construed to mean “the act of dying” and since the insured was in “the act of dying” within 90 days, such would substantially comply with the requirement or would at least create a question of fact. We know of no authority for either of these propositions and appellant cites none. Death is not an ambiguous term, and there is no room for construction. Stead v. Department of Labor and Industries, 188 Wash. 171, 61 P.2d 1307. Death has been defined as the termination of life; and as the state or condition of being dead. Sanger v. Butler, 45 Tex.Civ.App. 527, 101 S.W. 459; 25 C.J.S. Death § 1, p. 1052, para. 1.

Appellant admits, and all of the evidence shows, that death did not actually occur until approximately 120 days after the accident.

Appellant’s points seven and eight are overruled.

By her points nine and ten, appellant urges that the supplementary contract is void and unenforceable because she alleges that the provision requiring death to occur within 90 days after the accident is unreasonable and is in violation of public policy of the State of Texas.

The rule announced in Crowe v. North American Accident Insurance Co., quoted above, and the authorities cited there, is direct authority against the appellant’s contention. Insofar as we have been able to ascertain, the rule announced there has never been questioned in this state. Alamo Health & Accident Ins. Co. v. Cardwell, Tex.Civ.App., 67 S.W.2d 337; Herold v. Aetna Life Insurance Company, Tex.Civ.App., 77 S.W.2d 1060; Universal Life & Accident Insurance Co. v. Beaty, Tex.Civ.App., 177 S.W.2d 244; American Casualty & Life Company v. McCuistion, Tex.Civ.App., 202 S.W.2d 474; Commonwealth Casualty & Insurance Co. v. Laurence, Tex.Civ.App., 223 S.W.2d 337.

The argument that the requirement of death within 90 days is violative of public policy because it would tend to encourage the beneficiary to deny the insured medical treatment in order to cause death within the ninety-day period is unsound, and we therefore decline to follow it. Mullins v. National Casualty Co., supra, citing cases.

If the contract does not violate public policy or some statutory prohibition, the parties to an insurance contract have the right to stipulate such terms and conditions as will meet the desires of the parties. Hatch v. Turner, 145 Tex. 17, 193 S.W.2d 668, 669 (Sup.Ct.).

As we interpret the desires of the parties to this contract, the company did not desire to sell, nor did it sell, protection from loss occurring more than 90 days after an accidental injury and the insured did not desire to buy, nor did he buy, protection from a loss occurring more than 90 days after an accidental injury. Obviously, the line between death caused by accident and death as a result of natural causes must be drawn somewhere. The ninety-day period provision was the period of time agreed upon by the parties as a reasonable time for the manifestation of losses caused by accidental injury. Under the authorities cited herein, such would not be in contravention of public policy.

For the reasons stated herein, we think the Trial Court correctly granted the motion for summary judgment.

Judgment affirmed.


author: WILLIAMS, Justice.

text:
    Ralph O. MATHEWS et al., Appellants, v. FIRST CITIZENS BANK et al. Appellees.
    No. 16293.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 27, 1963.
    Rehearing Denied Jan. 24,1964.

      Jackson, Walker, Winstead, Cantwell & Miller, H. Dudley Chambers, Jack Pew, Jr., Joe P. Mathews, Storey, Armstrong & Steger, and Paul S. Adams, Jr., Dallas, for appellants.
    Brundidge, Fountain, Elliott & Churchill and Roger A. Hansen, Dallas, for appellees.
   WILLIAMS, Justice.

Ralph O. Mathews brought this suit against First Citizens Bank (hereinafter called Bank) and American Optical Company (hereinafter called American Optical) seeking damages for conversion of a stock certificate registered in Mathews’ name which was sold by the Bank and transferred by American Optical upon the forged in-dorsement of Mathews’ name. In the alternative, Mathews sought replacement of evidence of ownership of the stock certificate, and of dividends which he would have been entitled to receive but for the wrongful transfer by American Optical to a third party. American Optical filed a third party action for indemnity against Merrill Lynch, Pierce, Fenner & Smith, Inc. (hereinafter called Merrill Lynch), and Merrill Lynch, in turn, filed a third party action for indemnity against the Bank. The Bank and Merrill Lynch filed third party actions for indemnity against Maudie Crane who pledged the stock certificate to the bank to secure a loan. At the conclusion of a non-jury trial the District Court rendered judgment in favor of Mathews against American Optical and the Bank, jointly and severally, in the sum of $4,775, representing the value of the stock as of January 1,1960, the approximate date upon which the certificate was cancelled. Pursuant to stipulation by all parties, the judgment provided that American Optical be awarded indemnity against Merrill Lynch, that Merrill Lynch be awarded indemnity against the Bank, and that the Bank be awarded indemnity against Maudie Crane. Mathews has appealed, contending that the trial court should not have awarded him damages for conversion but should have decreed restoration of evidence of stock ownership and all dividends attributable thereto. Both American Optical and Merrill Lynch have perfected an appeal only for the purpose of protecting their indemnity judgments. Neither of these parties complain of the trial court’s judgment. Neither the Bank or Maudie Crane has perfected an appeal.

The record reveals that Mathews was the owner of 100 shares of stock in American Optical Company, represented by Certificate No. NYA-21109. The certificate, indorsed in Mathews’ name, was pledged by Maudie Crane to secure loan from the Bank. Thereafter the Bank, guaranteeing such in-dorsement, sold the stock to Merrill Lynch. Merrill Lynch also guaranteed the indorsement of Mathews’ name and sold the stock to a third person. The certificate was then presented to American Optical for cancellation and reissue, such being accomplished. Mathews alleged in his suit that some person stole the stock certificate from his possession on or about January 2, 1959, and that he did not discover the theft until approximately January, 1961. In his pleadings, the conversion aspect being enlarged by trial amendment, Mathews prayed “in the first alternative, that plaintiff have judgment against American Optical Company and First Citizens Bank, jointly and severally, for damages in the amount of $9,000 with interest thereon from December, 1959 and that plaintiff have further recovery of and from First Citizens Bank in the sum of $4,000 as punitive damages.” He prayed “in the second alternative, that he have and recover from American Optical Company a new certificate for 100 shares of common stock together with interest from date of transfer and all dividends and benefits to the stockholder since December, 1959.” The trial court rendered judgment on April 18, 1963 granting to Mathews his relief prayed for in his first alternative prayer for actual damages but denying punitive damages. On April 26, 1963 Mathews moved for a new trial stating that he had elected to seek from American Optical the remedy of requiring such company to tender to him a new stock certificate. The trial court overruled this motion. No findings of fact or conclusions of law were requested or filed.

Appellant Mathews presents one point on appeal: “The trial court erred in refusing to grant appellant the remedy of requiring American Optical to place him in possession of a stock certificate evidencing his ownership of the number of shares, including stock dividends, which would have been registered in his name but for the wrongful transfer by American Optical of the stock certificate * * * and as a matter of law, appellant is entitled to such remedy.” In reply to this point, the Bank contends that appellant, having sued for conversion and sought a money judgment against the Bank and American Optical for both actual and exemplary damages, the court was empowered to grant the relief prayed for in the first alternative, and to deny the second alternative relief. Furthermore, the Bank contends that appellant’s second alternative prayer for equitable relief by way of restoration of the stock certificate was properly denied by the trial court, such action not being an abuse of discretion.

The sole question for our determination is whether appellant Mathews may properly demand that the trial court grant his equitable relief contained in his second alternative prayer. We have concluded that the judgment of the trial court is correct and should be affirmed.

In this case which was tried without a jury, and no findings of fact or conclusions of law were requested and none were filed, the court’s judgment implies all necessary fact findings in support of- the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Gulf, C. & S. F. Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933. A review of the. record indicates ample evidence in support of the trial court’s judgment in favor- of Mathews for the value of the stock converted by forged indorsement. Having decided that the trial court was justified in granting appellant the relief which he prayed for in his first alternative, and there being no complaint by any of the other parties concerning this money judgment for conversion, the question remains whether appellant Mathews may now disclaim the award of that which he asked in his pleadings and demand that the trial court give him the equitable relief sought by his alternative prayer.

The rule is almost universally established that the owner of stock which has been transferred without authority may do one of two things. He may either maintain an action for damages for conversion or he may seek equitable relief against the wrongdoer to compel it to replace the shares of stock on its books in his name. Thus, he has two rights and remedies. He may recover one but not both. In Fletcher — Cyclopedia of Corporations, Permanent Edition, 1957 Revised Volume, Vol. 12, Sec. 5551, Pages 676-682, the rule, amply supported by authorities, is quoted:

“If a corporation recognizes a forged or unauthorized assignment of a certificate of stock and power of attorney to transfer, and registers the transfer on its books, or if it registers a transfer without any assignment or authority from the owner, it is guilty of a conversion of the shares, and the registered owner may maintain an action against it for damages ***.*** Instead of suing at law for conversion, however, the owner of stock which has been transferred by the corporation on its books under a forged or unauthorized assignment and .power of attorney may maintain a suit in equity to compel the corporation to replace the shares on its books in his name, and issue to him a proper certificate, or, in the alternative, to recover a judgment for their value, unless the granting of such relief would result in an overissue

Under our system of blended law and equity it was perfectly appropriate for appellant Mathews to assert his right and remedies in the alternative. This he did by asking, first, for recovery of money damages for the conversion and, in the second alternative, for equitable relief in the nature of restoration of the shares of stock illegally transferred. While he proceeded properly, he cannot obtain more than one relief. The trial court impliedly found all facts favoring appellant Mathews’ contention concerning forgery and illegal transfer of the shares, but also concluded from the evidence that Mathews was entitled to his legal relief in the form of damages and not his equitable relief in the form of restoration. Mathews argues that he made an election to recover under his theory of restoration. However, following such alleged election, the statement of facts, consisting of 617 pages, is replete with evidence relating to both theories of recovery. The trial court granted Mathews the specific relief which he sought in his first alternative prayer. He denied Mathews his equitable relief. Assuming that appellant did make an election, as he argues, such fact does not, in itself, overcome the fact that the trial judge found against him on his alleged elective count of recovery and we cannot say that such action is erroneous. Appellant does not ask us to remand or render the judgment but merely to reform it by giving him his equitable relief denied by the court below. This we cannot do under the facts developed and since the parties against whom the damage judgment was rendered do not complain it should not be disturbed by us.

The granting or denial of equitable relief lies within the sound discretion of the trial court whose functions are similar to that of the chancellor under English equity practice. 22 Tex.Jur.2d 541, Sec. 4. Appellant’s challenge of the trial court’s refusal to grant him his equitable relief, contained in his second alternative prayer, must be founded upon a clear abuse of discretion on the part of the trial judge. A careful examination of the record in this case reveals that appellant Mathews has failed to demonstrate an abuse of discretion. Lipscomb v. Perry, 100 Tex. 122, 96 S.W. 1069; Railroad Commission v. Shell, 146 Tex. 286, 206 S.W.2d 235; Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460; Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549. We do not deem it necessary nor desirable to review the voluminous testimony relating to the alleged relationship between appellant Mathews and Maudie Crane which threw some light upon the circumstances leading to the disappearance of the certificate of stock. Suffice it to say that the testimony relating to a long period of relationship between the parties is rather sordid and con-dieting. The trial court considered this maze of conflicting evidence and concluded that appellant Mathews had not demonstrated his right to equitable relief by way of restoration of the certificate of shares. This record does not reflect an abuse of discretion. Appellant Mathews’ statement to the effect that he was entitled to equitable relief, as a matter of law, is certainly not justified either in law or in fact.

Finding no error in this record the judgment of the trial court is. affirmed.

Affirmed.

BATEMAN, J., not sitting.


author: RENFRO, Justice.

text:
    V. D. COFFMAN et al., Appellants, v. CITY OF WICHITA FALLS, Appellee.
    No. 16479.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 10, 1964.
    Rehearing Denied Feb. 7,1964.
    Anderson & Connell, and Henry J. Anderson, Wichita Falls, for appellants.
    H. P. Hodge, Jr., City Atty., Wichita Falls, for appellee.
   RENFRO, Justice.

Suit was brought against the City of Wichita Falls by Aubrey Wayne Bell and numerous others, who alleged that “Plaintiffs are each and every one presently employed by the City of Wichita Falls in the fire department * * Several counts for relief were set out in the petition. Apparently the judgment of the trial court was satisfactory to plaintiffs, with the exception of the count regarding vacation pay. The City did not appeal from the portion of the judgment adverse to it. The plaintiffs appealed from that part of the judgment only which denied their plea for vacation pay over a two year period.

Plaintiffs plead Art. 1583-1, Vernon’s Ann.P.C., wherein it is provided: “Sec. 3. Each member of any such departments in any city of more than thirty thousand (30,000) inhabitants shall he allowed fifteen (15) days vacation in each year with pay; * * * ”, and alleged that defendant had failed and refused to grant the members of the fire department 15 days paid vacation as provided by law.

Trial was had before a jury. No issue was submitted or requested concerning vacation pay. The court in its judgment, however, denied plaintiffs’ claim for vacation pay.

The evidence is undisputed. Plaintiffs claim the facts show they have not been granted a 15 day vacation with pay. The defendant, on the basis of the same evidence, says as a matter of law plaintiffs have been granted 15 day vacations with pay.

Article 1269m, § 26(a), Vernon’s Ann. Tex.Civ.St., reads as follows: “All firemen and policemen in the classified service shall have a minimum of fifteen (15) working days vacation with pay in each year. In computing the length of time during which a fireman or policeman may be absent from work for the vacation provided by this Section, only those calendar days during which the member would' be required to work if he were not on vacation shall be counted as vacation days. Vacation leave may not be accumulated from year to year, except as approved by the governing body of the city.” Section 50, Rule XVII of the Civil'Service Rules of defendant City, provides: “Employees in the classified service shall earn a minimum of fifteen (15) working days vacation with pay in each calendar year. Only those calendar days during which the member would be required to work if he were not on vacation shall be counted as vacation days. * * * ”

The evidence shows that the firemen employed by defendant work in three shifts of 24 hours each. Each shift begins its 24 hour work period at 8:00 A.M. and works until the following morning at 8:00 A.M. Then the next shift takes over for a 24 hour period, at the expiration of which the third shift goes on duty for a 24 hour period. During the summer months shift one is relieved of duties for 8 shifts. During that time shifts 2 and 3 are required to’ work their normal 8 shifts, plus 4 additional shifts to take care of the 8 shifts missed by No. 1. When shift 1 returns, the process is repeated as to shifts 2 and 3. Plaintiffs contend there is actually no time off from their normal work load and, therefore, in spite of the fact plaintiffs were actually off duty as many as 26 consecutive days at full pay, such period was not a vacation with pay as contemplated by' the statute.

All of plaintiffs are paid monthly salaries, and receive full salary while off from work during the summer month's.

“‘Vacation’ implies a recess or leave of absence, a respite or time of respite from active duty; an intermission or rest period during which activity or work is suspended. It is a period of freedom from duty but not the end of employment. Cf. Webster New Inter.Dict. 2nd Ed.” In re Dauber, 151 Pa.Super. 293, 30 A.2d 214.

Article 1583-1, § 1/ V.A.P.C., provides that no member of the fire department shall' be required to be on duty more than six days in any one week. Plaintiffs do not contend that they ever were on duty more than 6 days in any one week.

Section 6 of the same article provides that it shall be unalwful for a city to require any fireman to work more than an average, during a calendar year, of sixty-three hours per week. A proper interpretation of the above statute shows that a fireman could be required to work three thousand two hundred and seventy-six hours during a calendar year. The evidence is undisputed that plaintiffs worked only 3,016 hours per man during the calendar year.

We agree with defendant that under the statutes and the uncontradicted evidence the plaintiffs did receive at least 15 days vacation with pay yearly, and that to allow plaintiffs’ present claims would in effect double plaintiffs’ vacation pay.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    Clyde DUNCAN, Appellant, v. Eunice DUNCAN, Appellee.
    No. 3786.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 10, 1964.
    Rehearing Denied Eeb. 7, 1964.
    See also 372 S.W.2d 564.

      R. E. Murphey, Coleman, Callaway & Callaway, Brownwood, for appellant.
    O’Neal Dendy, San Angelo, for appellee.
   GRISSOM, Chief Justice.

In a trial to the court, Eunice Duncan was granted a divorce and her husband, Clyde Duncan, who occupied the position of plaintiff in the case, was denied a divorce. The homestead was awarded to the wife, subject to the unpaid portion of the purchase price. The wife was awarded a judgment for $1750.00, as partial reimbursement for her separate funds spent in improving the properties of the parties and for her interest in other community property. She was also awarded a judgment for $750.00 attorney’s fee. A lien was fixed against the property awarded the husband to secure payment of said amounts. The husband has appealed. Findings of fact and conclusions of law were not requested.

Appellant’s first point is that the court erred in denying him a divorce. It would serve no good purpose to state the sordid facts from which the court, unquestionably, had the right to award the wife a divorce. The evidence certainly did • not require the award of a divorce to the husband. That point is overruled.

Appellant’s second point is that the court erred in requiring the parties to file written verified statements concerning their separate and community properties for consideration by the court. Said point is overruled. The court did not require the filing of such statements, on the contrary, it was stipulated that they should do so and that the court might consider them.

Appellant’s third point is that the court erred in awarding the homestead to Eunice Duncan on the theory that it was community property. Point 7 is to the effect that the court erred in holding that the $1200.00 cash paid on the purchase price of the homestead and the $200.00 closing fee were paid from community funds, because the uncontradicted evidence showed said money was paid out of the separate funds of the plaintiff. There was evidence from the plaintiff to the effect that said money was cash which he dug up on his farm where he had buried it before he married the defendant. However, he also testified to the effect that he started burying money when he became suspicious that his wife was trying to get his property, and that he buried this after the marriage. It is undisputed that he told his wife shortly before they were married that his income ranged from $200.00 to $1,000.00 per month. It is undisputed that he spent very little. Mr. Duncan was an interested witness. The homestead awarded to the wife was acquired during marriage. The deed was made to both the husband and wife as grantees and both signed the deed of trust and the notes which constituted the major portion of the consideration for the home. The total consideration was $4,000.00, $1,-200.00 was paid at the time the property was purchased. The court was not required to believe that the cash spent in concluding the purchase came from the separate funds of the plaintiff, nor was the court required to conclude that the home was the separate property of the plaintiff. By virtue of Article 4619, Section 1, all property acquired during marriage is deemed to be the common property oí both until the contrary is satisfactorily proved. All property that the husband and wife possess at the time the marriage is dissolved is deemed community property. 12 Tex.Jur.2d 211. The burden of rebutting that presumption rested on the plaintiff. It has been held that the presumption that property acquired during marriage is community property is very strong and can be overcome only by clear and convincing proof. 30 Tex.Jur.2d 280; Harkness v. McQueen, Tex.Civ.App., 232 S.W.2d 629; Lindemood v. Evans, Tex.Civ.App., 166 S.W.2d 774; Davis v. Duncan, Tex.Civ.App., 102 S.W.2d 287, (Dis. W.O.J.) ; Skinner v. Skinner, Tex.Civ.App., 202 S.W.2d 318; Brick & Tile, Inc., v. Parker, 143 Tex. 383, 186 S.W.2d 66.

Since the decision of our Suprem'e Court in Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 302, there can be no contention that the provision in Article 4638 prohibiting divestiture of title'df real estate in divorce cases applies to community real estate. It was there definitely held that in partitioning the community real estate in a divorce case that there is no divesting of title to real estate within the meaning of said statute, but that it is merely a division of realty between those who already have title thereto. Since the trial court found, which finding we approve, that said homestead is community property, the prohibition contained in said statute is not applicable.

The points contending that the court erred in awarding Mrs. Duncan $1750.00 as partial reimbursement for funds expended by her in improving their properties and for her interest in other community property, complaining of attorney’s fees and the fixing of a lien against plaintiff’s property to secure payment of said sums have been considered and are overruled. After a careful study of the statement of facts, we find that the evidence authorized said actions. The court has a wide discretion in dividing the property of the spouses and can make such a division as it deems just and right. The division of community property need not be equal if the circumstances justify awarding more than one-half to one spouse. A variety of factors may be looked to as justification for an unequal division. It has been said that in making such a division the court may consider, among other things, the probable future need for support, fault in breaking up the marriage and the benefits the innocent spouse would have received from a continuance of the marriage. The trial court’s judgment may not be reversed unless an abuse of discretion is shown. It is not shown. Volume 13, Vernon’s Tex.Civ. St., page 45. See also Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405; Parmeter v. Parmeter, Tex.Civ.App., 348 S.W.2d 51, 53; Grimes v. Grimes, Tex.Civ.App., 365 S.W.2d 228, 229; Clark v. Clark, Tex.Civ.App., 362 S.W.2d 655, 657.

We think the court did not err in concluding, if it did, that the pension, or retirement pay, received by Mrs. Duncan was her separate property. It was earned and owned by her before this' marriage. See Johnson v. Johnson, Tex.Civ.App., 23 S.W. 1022; Moore v. Moore, Tex.Civ.App., 192 S.W.2d 929, 930; Howard v. Ingle, La.App., 180 So. 248.

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Minnie Jean SISTTIE, Appellant, v. Robert B. HOLLAND, Jr., et ux., and E. R. Wagner, Appellees.
    No. 4.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 9, 1964.
    Rehearing Denied Jan. 30,1964.
    S. M. Victorson and Paul K. Hyde, Dallas, for appellant.
    Ben Warder, Jr., and Charles D. Mayes, Carter, Gallagher, Jones & Magee, Royal H. Brin, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellees.
   DUNAGAN, Chief Justice.

This is a personal injury case brought by the appellant, Minnie Jean Sisttie, a domestic servant, employed by the appellees, Robert B. Holland, Jr. and his wife, against her employers, and the appellee, E. R. Wagner, the contractor who built the house of appellant’s employers.

Appellant sustained personal injuries when a chest of drawers fell upon her after she stepped upon the bottom drawer for the purpose of reaching a shelf above the chest of drawers.

Each of the appellees filed a separate motion for summary judgment and the Trial Court granted both motions in separate and distinct judgments. The judgment for Robert B. Holland, Jr., and wife was signed the 8th day of February, 1963, and the judgment for E. R. Wagner was signed the 12th day of February, 1963. However each judgment reflects that a hearing was had on each of them January 31, 1963. The appellant duly perfected her appeal from each of the judgments and the judgments are now before this court for review. Appellant gave notice of appeal from the Hollands’ judgment by notice included in the judgment and gave notice of appeal from the Wagner judgment by filing her notice of appeal with the Clerk of Dallas County, dated February 21, 1963.

At the outset, the Court is confronted with the' question of whether there is a final judgment in this cause from which an appeal will lie to this court. There is before us two distinct and separate judgments, neither of which, standing alone, disposes of all the parties and issues. Without any doubt, the judgment of February 8, 1963, was not a final judgment, but interlocutory only, as it did not dispose of all the parties to the suit or all of the issues involved in this suit, from which no appeal will lie. The judgment of February 12, 1963, neither made reference to the judgment of February 8, 1963, nor made it a part thereof by incorporating it into said judgment.

A final judgment is one that determines the rights of all the parties and disposes of all the issues involved. Lubell v. Sutton, Tex.Civ.App., 164 S.W.2d 41.

Our statutes provide that there shall be but one final judgment in any case. It follows from this that, if there be several defendants to a suit, no final judgment can be rendered against one until it is rendered against all, however independent of each other their respective defenses may be. Texas Bank & Trust Company of Dallas v. Clay et al., Tex.Civ.App., 257 S.W.2d 774; Wootters v. Kauffman, 67 Tex. 488, 3 S.W. 465.

Rule 301, Texas Rules of Civil Procedure, provides that:

“Only one final judgment shall be rendered in any cause except where it is otherwise especially provided by law."

The rule has its source in the form of statute. Art. 2211, R.C.S.1925.

Art. 2249, R.S. of Texas, Vernon’s Ann.Civ.St. 2249, authorizes an appeal to the Court of Civil Appeals “from every final judgment of the district court in civil cases ‡ jjc jJj )9

There being two distinct and separate judgments before this court, and it being well settled that there can be but one final judgment, it is obvious that both cannot be final judgments. If the Wagner judgment is selected as final, even though it disposes of the only party left, as all the other parties were disposed of in the February 8th judgment, it alone does not dispose of the Hollands and neither does the Holland judgment dispose of Wagner.

The judgments together dispose of all parties and issues involved in the suit but neither alone does so. The question that troubles us is, can the judgments be treated as one?

Since the last judgment does not refer in any way to the first judgment, nor incorporate it, we do not think they can be treated as one judgment and hence there is no final judgment from which an appeal will lie to this court.

Since the record discloses that there was no final judgment, this court is without jurisdiction and it is our duty to dismiss the appeal on our own motion. Duke v. Gilbreath, Tex.Civ.App., 10 S.W.2d 412 (writ ref.) ; C & L Supply Co., v. Kennerly, Tex.Civ.App., 258 S.W.2d 102.

This appeal is dismissed without prejudice to the parties entering a final judgment from which an appeal might be perfected.


author: PHILLIPS, Justice.

text:
    LAWYERS SURETY CORPORATION, Appellant, v. C. Terry CLINE, Jr., Appellee.
    No. 11144.
    Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1964.
    Rehearing Denied Jan. 29, 1964.
    L. Alexander Lovett, Houston, Lawrence W. Vance, Dallas, for appellant.
    Alfred C. Schlosser, Houston, for appel-lee.
   PHILLIPS, Justice.

One Variety International Productions, Inc., brought suit against C. Terry Cline, Jr., in the County Civil Court at Law for breach of contract and damages. In this lawsuit the only fact pertinent to this appeal is that Variety International Productions, Inc., sought a writ of attachment for C. Terry Cline’s performing chimpanzee named Judy and posted an attachment bond underwritten by Lawyers Surety Corporation.

C. Terry Cline filed various exceptions to the petition in the abovementioned lawsuit, then filed a cross action against Variety International alleging that Variety International had damaged him in the sum of $975.00.

The case was tried before a jury who found against Variety International Productions, Inc. and in favor of C. Terry Cline for his cross action and allowed him $975.00 for the damages alleged.

The court granted C. Terry Cline’s judgment against Variety International Productions Inc. for the $975.00 together with interest and costs of suit and also ordered execution against the attachment bond posted by Lawyers Surety Corporation.

Since Lawyers Surety Corporation was not present at the proceedings outlined above it is before this Court by writ of error. Art. 2249a, Vernon’s Ann.Civ.St.

Lawyers Surety maintains that the cross action by which C. Terry Cline recovered judgment against Variety International does not contain any allegations for wrongful attachment and that the damages allowed were for something other than wrongful attachment; that it was error for the Trial Court to have ordered execution on the attachment bond.

We have reviewed the petition in C. Terry Cline’s cross action described above and find that the contention of Lawyers Surety is correct.

The elements of wrongful attachment must be set up in the petition and appropriate allegations concerning the damages incurred must be set out. 6 Tex.Jur. 2d, Secs. 147, 179.

There is no basis whatsoever in Cline’s cross action to support the court’s judgment ordering execution against the bond posted by Lawyers Surety Corporation.

•We reform the judgment of the Trial Court vacating the part that orders execution against the aforesaid bond without prejudice to Cline in bringing an independent .suit for damages for wrongful attachment. We leave the remaining part of the Trial Court’s judgment undisturbed.

The judgment of the Trial Court is reformed as indicated above.

Reformed.


author: WILSON, Justice.

text:
    Austin F. DREXLER, Appellant, v. BRYAN BUILDING PRODUCTS COMPANY, Appellee.
    No. 4193.
    Court of Civil Appeals of Texas. Waco.
    Dec. 26, 1963.
    Rehearing Denied Jan. 16,1964.
    Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, for appellant.
    W. C. Davis, Bryan, for appellee.
   WILSON, Justice.

Appellant’s plea of privilege in appellee’s action for debt was overruled after a non-jury hearing. Appellee’s controverting plea asserted venue in the county of suit under subdivision 5, Art. 1995, Vernon’s Ann.Tex. Stats., alleging appellant had contracted in writing to pay in that county for merchandise furnished. Appellant pleaded non est factum in its plea of privilege.

The gist of appellant’s points is (1) that since the parties had originally entered into a written purchase and sale contract, appellee was precluded from showing a subsequent and additional written agreement on which he relied; (2) that delivery receipts or invoices alleged to constitute the subsequent written contract were signed without authority; (3) that the signed receipts introduced were not the best evidence; (4) that the delivery receipts did not constitute a written contract to perform an obligation, but were merely acknowledgments of receipt of goods. We affirm.

Appellant delivered to appellee a signed purchase order for merchandise written on appellant’s printed form. It was accepted in writing by appellee. It provided appellant would make payment within a specified time, and that “all matters pertaining to this purchase order are to be handled only through A. F. Drexler or Marvin Bishop”. The purchase order contained the printed instruction to appellee: “Mark terms on each invoice.” Thereafter appellee delivered merchandise, which appellee contends was included in the purchase order. Appellant used the material in a construction project. At the time of delivery to the site designated appellee presented a copy of invoices which included delivery receipts written on appellee’s printed form, to appellant’s job superintendent, who signed them. The invoices so signed contained a printed provision that “payment for goods sold herein shall be made in our office at Bryan, Brazos County, Texas”, and that venue on suit for non-payment should lie in that county. Following this were the words, “Received in good condition”, and the superintendent’s signature.

Invoices signed by the buyer, reciting payment is to be made in a county expressly named, are contracts in writing within subdivision 5. Cities Service Oil Co. v. Brown, 119 Tex. 242, 27 S.W.2d 115; Berry v. Pierce Petroleum Corp., 120 Tex. 452, 39 S.W.2d 824; Burtis v. Butler Bros., 148 Tex. 453, 226 S.W.2d 825; Brison v. Continental Oil Co., Tex.Civ.App., 48 S.W.2d 442, writ ref.

Appellant’s contention that “original” invoices retained in appellee’s file are the best evidence and the signed “acceptance copies” containing identical provisions are secondary, overlooks the fact that the “originals” are not signed. Appellee’s testimony was that identical copies of the “original” invoices were sent to appellant, and Drexler admitted receiving copies of the invoices sent to his office, in accordance with the purchase order provisions. These contained the same recited terms as to place of payment. The objection that the signed copies are not the best evidence is untenable.

The argument that the original purchase order was a written agreement which made the subsequent invoices inadmissible as a contract in writing is rejected for two reasons: Parties to a written contract may modify it by making additions thereto. E. H. Perry & Co. v. Langbehn, 113 Tex. 72, 252 S.W. 472, 475; Marcus v. Armer, 117 Tex. 368, 5 S.W.2d 960, 60 A.L.R. 672. The purchase order agreement expressly authorized and directed appellee to “mark terms on each invoice”. By accepting, retaining and using the material after receipt of the invoice by Drexler containing the terms as to place of payment, under this direction, Drexler adopted, accepted and ratified the provision as to place of payment which was thereby merged with the original purchase order as a contract in writing. Olmstead v. Plainsman Liquid Insecticides, Tex.Civ.App., 259 S.W.2d 783; 37-A Tex.Jur. p. 196.

By its proof, appellee adequately established the necessary venue facts. It is not necessary, therefore, to decide directly the question as to whether the signing of the invoices or delivery receipts by appellant’s job superintendent was authorized or effective in the light of the purchase order restriction concerning matters to be “handled” through Drexler and Bishop.

Affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF MILITARY AFFAIRS, Appellant, v. J. T. HERRELL, Appellee.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    Robert L. Montague, III, Frankfort, for appellant.
    Joseph- K. Beasley, Harlan, Joseph J. Leary, Marion Rider, Frankfort, for ap-pellee.
   DAVIS, Commissioner.

The Commonwealth of Kentucky and the Department of Military Affairs sued J. T. Herrell in the Franklin Circuit Court seeking recovery of $28,809, allegedly obtained by Herrell from 88 veterans who assigned their bonus claims to him. The bonus claims in question arose pursuant to the provisions of KIRS Ch. 40. The complaint as amended was dismissed by the trial court on the grounds (1) that the Commonwealth and the Department of Military Affairs are without legal right to maintain the action, and (2) that any cause of action which might exist is vested exclusively in the veteran.

The Commonwealth and Department of Military Affairs appeal, challenging the two grounds just stated.

The parties agreed in pretrial conference as follows: (1) each of the 88 veterans filed proper application for bonus and each was entitled to bonus; (2) the Department of Military Affairs mailed, properly stamped and addressed, to each of the 88 veterans a check in payment of such bonus; these checks were properly endorsed in some instances by the veteran in person, and in others by the appellee as authorized attorney in fact; the checks were paid by the Treasurer of Kentucky; (3) the 88 veterans referred to in the complaint have no right of action or claim against the Commonwealth or the Department of Military Affairs for the payment of the bonus; and (4) no assignment of the claims of the veterans to the appellee was received by, tendered or presented to any officer of the Commonwealth prior to the issue of the 88 checks, nor were the proceeds of the checks hypothecated, to any person prior to their being issued with knowledge of the Commonwealth or its Department of Military Affairs.

No statutory provision specifically affords any authority to the Commonwealth or the Department of Military Affairs to maintain this action. None is cited to us, nor are we able to discover any. The Department insists that it has legal standing to maintain this action; it asserts this prerogative is implied by KRS 40.230 authorizing the administrator of the Department to make rules and regulations for the implementation of KRS, Ch. 40. We do not construe that statute as affording basis for this action.

The Commonwealth and its Department of Military Affairs have discharged fully the bonus payments due the 88 veterans. None of the veterans makes complaint in this action. We can perceive no basis whereby the Commonwealth or Department of Military Affairs has any proprietary interest in the proceeds of the checks.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Estill GALLOWAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    F. Byrd Hogg, Whitesburg, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Estill Galloway was convicted of being an accessory before the fact of armed robbery. He received a life sentence. On appeal he argues that: (1) Hearsay evidence was erroneously admitted; (2) the testimony of Sunset Joseph was erroneously excluded; and (3) his motion for a directed verdict should have been sustained.

Paul Collins and Sunset Joseph assaulted and robbed R. C. Eversole, a storekeeper, on January 31, 1963. They were arrested, and Sunset Joseph made an affidavit in which he confessed and implicated Glenn Cornett and John Parrott. Later, Joseph implicated appellant. On this indictment in which appellant alone was accused, Joseph and the sheriff were the only witnesses before the grand jury. Subsequently, Cor-nett and Parrott were released.

On the trial the sheriff testified, in part, as follows:

“Sunset told me that if I would take him out of jail, take him in my car, he would show me everything that happened so Trooper Roy Hall and myself, we took him in the car and drove over there, I told him, I said, ‘You just take me and show me what happened’, so we drove on down the river and he said, ‘Right here is where we stopped and bought gas, Estill Galloway put a dollar’s worth of gas in the car.’ ”

Sunset Joseph did not testify. Appellant contends that the sheriff’s statement, repeating what Sunset had said about appellant’s purchasing “a dollar’s worth of gas,” is hearsay and should not have been admitted over his objection.

In Kinder v. Commonwealth, Ky., 306 S.W.2d 265, the rule was stated as follows:

“Hearsay has been defined as evidence which derives its value not solely from the credit to be given to the witness upon the stand but, in part, from the veracity and competency of some other person. The hearsay rule signifies a rule rejecting assertions offered testi-monially which have not been in some way subjected to the test of cross-examination under oath. It is an extrajudicial testimonial assertion which may be either written or spoken. The theory of the rule is that the many possible deficiences, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the fundamental test of cross-examination. * Sj{ >}<

The merit of the rule as it concerns the test of cross-examination is illustrated in this case. Sunset Joseph, who was said to have made the statement, was present in the courtroom during the trial. The prosecution did not offer him as a witness. Appellant sought to introduce him, but he was immediately met by the claim of privilege against self-incrimination, which was sustained. There was no way to examine the truth of Sunset’s statement, especially when compared with his prior affidavit by which he implicated only Cornett and Par-rott. The objectionable testimony is hearsay and should have been rejected.

Appellant argues that Joseph should have been compelled to testify when called by him.- He urges that Joseph waived his constitutional privilege against self-incrimination by his appearance and testimony before the grand jury.

Joseph had previously been indicted by the same grand jury. The appellant’s brief indicates that Joseph was subsequently sent by the juvenile court to the House of Reform.

The constitutional privilege against self-incrimination is a personal one that the witness may waive if he chooses to do so. In Commonwealth v. Phoenix Hotel Company, 157 Ky. 180, 162 S.W. 823, the Court held:

“The privilege attaches to the witness in each particular case in which he may be called on to testify, and whether or not he may claim his privilege is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations made at some other time or place.”

See also In re Neff, 3rd CCA, 206 F.2d 149. The Court correctly sustained Joseph’s plea despite the previous statements made.

Appellant urges that there was insufficient corroborative evidence to support the testimony of the principal. The Commonwealth used Paul Collins as a witness. Collins had previously pleaded guilty to the crime of armed robbery and entered upon service of his sentence. He testified that the robbery of Eversole was discussed with appellant and that for part of the money appellant had agreed to and did furnish a pistol.

Excluding the testimony relating to the purchase of the gasoline, the only testimony, other than that of a principal, which tended to connect appellant 'to the commission of the offense was that of Eugene Kellman. He testified that he loaned appellant a pistol, which was shown to have been of a similar make to the one used in the robbery. He said that it was loaned before the robbery and that appellant returned it after the robbery. Kellman could not fix any date or time for the transactions and was rather vague in his answers concerning the time of the two incidents.

The effect of the Kellman testimony is that appellant may have had in his possession about the time of the robbery a pistol similar to the one used in the robbery. The weapon involved was not shown to have been sufficiently distinctive or different from many similar weapons, and it was thus unidentifiable as the weapon used. Eliminating the testimony of Paul Collins, the principal, the testimony of Eugene Kellman about the pistol is insufficient corroborative evidence. Mitchell v. Commonwealth, 240 Ky. 258, 42 S.W.2d 305. The motion for a directed verdict should have been sustained^

Judgment reversed with direction, should the evidence be the same in the event of a new trial, to grant a directed verdict in favor of the defendant.


text:
    Lucy Mathews TAYLOR et al., Appellants, v. Alfred W. MINISH, etc., et al., Appellees.
    Court of Appeals of Kentucky
    Jan. 24, 1964.
    William G. Reed, Carrollton, for appellants.
    L. T. Peniston, New Castle, R. L. Hardin, Carrollton, for appellees.
   MONTGOMERY, Judge.

Lucy Mathews Taylor et al., appeal from a declaratory judgment holding that Ruby M. Groves is entitled to the entire estate of O. B. Mathews under his will. Appellants contend that one-half of the-estate should have passed to them by intestacy instead of by the will. The construction of KRS 394.400 is involved.

The statute provides:

“If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised' or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will.”

The pertinent portion of the will follows:

“ITEM II
“Should my wife, Anna M. Mathews, be living at the time of my decease, I will devise and bequeath to her one-half (5/i) of all of the property, real, ¡personal and mixed wheresoever located, of which I may die possessed.
“ITEM III
“I will devise and bequeath to my brother, S. F. Mathews, the remaining one-half Q/2) of my property, real, personal and mixed, of whatsoever kind and wheresoever situated which I may possess at the time of my death.
“ITEM IV
“Should my wife die before I do, then the one-half (]4) of my property willed and devised to her by Item 2 shall pass to and be the property of my brother, S. F. Mathews, mentioned in Item 3.”

The will was dated February 24, 1939. S. F. Mathews was named as executor. The testator died January 9, 1962. S. F. Mathews, the brother, died November 18, 1959, survived by his daughter, appellee Ruby M. Groves, as his only heir at law. Anna M. Mathews died February 5, 1961. She and the testator had no children. The appellants and Ruby M. Groves constitute all of the heirs at law of O. B. Mathews.

' Appellants’ contention is based on the fact that S. F. Mathews predeceased Anna M. Mathews. It is their theory that S. F. Mathews never attained the status of legatee or devisee because he never survived the original beneficiary; hence, he could not be substituted for her.

In Barnhill v. Sharon, 135 Ky. 70, 121 S.W. 983, the testator left his estate to his “brothers and sisters.” He was survived by four brothers and the children and grandchildren of a deceased half sister. The testator had one full sister who predeceased him without leaving issue or parents. His half sister had died before the will was made. The surviving children and grandchildren of the half sister claimed an undivided one-fifth interest in the testator’s real estate through the half sister as the sole member of the clasi denominated “sisters.” The Court, in con struing this statute, held that it was imma* terial that the half sister was dead at the time of the making of the will and that the issue of the half sister were entitled to an undivided one-fifth interest. The holding of this case is sufficient basis for rejecting appellants’ contention. See also Chenault’s Guardian v. Chenault, 88 Ky. 83, 9 S.W. 775, 10 Ky Law Rep. 840; Dillender v. Wilson, 228 Ky. 758, 16 S.W.2d 173; and Abney v. Pearson, 255 Ky. 394, 74 S.W.2d 465.

In the present case, Ruby M. Groves takes through a beneficiary named in the will. Only the amount of the taking, that is, whether one-half or all, was left to be determined by the death of the testator’s wife. It was not necessary that S. F. Mathews take the place of Anna M. Mathews by outliving her. The failure of the testator to change his will after the deaths of his brother and wife may be taken as an indication of his intention that he wanted his brother’s issue, Ruby M. Groves, and no one else, to have his estate. The presumption against partial intestacy strengthens this conclusion. Shedd’s Adm’r v. Gayle, 288 Ky. 466, 156 S.W.2d 490; Ward v. Curry’s Ex’r, 297 Ky. 420, 180 S.W.2d 305.

The lower court properly held that Ruby M. Groves was entitled to the entire estate under the will.

Judgment affirmed.