author: CLEMENS, Commissioner.

text:
    Henry W. KASPER, Plaintiff-Respondent, v. Louis G. HELFRICH, Defendant-Appellant.
    No. 32399.
    St. Louis Court of Appeals. Missouri.
    Oct. 17, 1967.

      Armstrong, Teasdale, Kramer & Vaughan and John J. Cole, St. Louis, for appellant.
    James F. Koester, St. Louis, David G. Dempsey, Clayton, for respondent.
   CLEMENS, Commissioner.

The plaintiff sued the defendant for personal injuries and property damages caused by a collision when defendant drove into the rear of plaintiff’s car. Plaintiff got a verdict for $14,250 personal injuries and $750 property damage. Defendant appeals from the $15,000 judgment.

Since the appeal focuses on claimed trial errors rather than liability, a condensed statement of the verdict-consistent evidence will do: On the night of September 19, 1959, both parties drove north on U.S. Highway 67. Plaintiff stopped behind a line of cars waiting to cross St. Cyr Road. Going about 40 m. p. h., the defendant drove into the rear of plaintiff’s car, forcing it into the rear of the Mertensmeyer car. Plaintiff went to the jury on MAI 17.16, the rear-end collision instruction. The defendant conversed negligence and resultant damages with MAI 29.04(4).

The defendant’s after-trial motion and brief urge seven errors: (1) restricting voir dire examination, (2) admitting parts of a police report, (3) changing plaintiff’s damage instruction by deleting reference to future damages, (4) refusing defendant’s withdrawal instruction on unrelated medical expense, (5) prejudicial jury argument, (6) answering the jury’s question about a nine-juror verdict, and (7) excessive verdict.

These points are matters addressed first to the discretion of the trial court. Judicial discretion is the option the trial judge has in doing or not doing a thing that cannot be demanded by a litigant as an absolute right; appellate courts will interfere with the trial court’s exercise of discretion only when it has been manifestly abused; that discretion is abused only when the trial court’s ruling runs against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice; if reasonable men can differ about the propriety of the action taken by the trial court, then the trial court did not abuse its discretion. Arno v. St. Louis Public Service Co., 356 Mo. 584, 202 S.W.2d 787 [3], and Anderson v. Robertson, Mo.App., 402 S.W.2d 589 [1-4]. Furthermore, we are directed by Civil Rule 83.13(b), V.A.M.R., to reverse a judgment only for errors materially affecting the merits of an action. We consider each of defendant’s points in the light of these principles.

Voir Dire Examination

Defendant first claims his counsel was improperly denied the right to ask the veniremen whether they would be prejudiced against the defendant by his failure to appear and testify in person. Plaintiff says the question did not seek to learn the existing state of mind of the veniremen but instead sought a commitment on how they would react later to a hypothetical situation. Although this is a valid distinction, we need not decide it. Instead, we look first to the circumstances in which the trial court ruled.

This was a free-swinging trial. Repeatedly both counsel “went outside the record.” Objections, motions and arguments were made in the jury’s hearing. Thrust quickly met counter-thrust. In this acrimonious atmosphere the trial court was called on to rule. Before asking about prejudice, defendant’s counsel had factually told the panel that the defendant “is not here today on doctor’s advice and probably will not testify because of his condition.” Plaintiff’s counsel retorted that the judge of the assignment division had just denied •defendant’s motion 1 for a continuance sought on that same ground. Counsel then argued — within the panel’s hearing — about the contents of a doctor’s affidavit and the effect of denying the continuance. Five pages of the transcript are taken up by objections, motions, arguments and rulings. The trial court’s final ruling sustained plaintiff’s objection to defendant’s question about prejudice. From the bench it was apparent that by then the veniremen had been improperly exposed to so much extraneous information that it would likely be difficult for them to lay all this aside and truthfully answer a question about existing prejudice within their own minds. Counsel for defendant had brought on this confusion by his factual, unsupported statement of defendant’s physical condition.

Considering the discretion allowed a trial court in controlling voir dire examination, we cannot say there was an abuse of discretion.

Police Report as Hearsay

Defendant contends the court erred in allowing plaintiff, in rebuttal, to read part of a police report as an admission against defendant’s interest. The defendant had stipulated that Exhibit F was a copy of the official police report, kept in the regular course of business. Later, plaintiff offered Exhibit F in evidence but did not then read it to the jury. The defendant raised no objection to introducing the exhibit.

According to the part of the police report plaintiff wanted to read, the drivers of the three cars had told the investigating officer: “Car 2 [plaintiff] and 3 [Mertensmeyer] was stop (sic) with about 5 cars in from of them when car 1 [defendant] hit them from behind.” Defendant then objected on the grounds that the evidence was hearsay and was not proper rebuttal. Having already agreed to the authenticity and introduction of the police report, it was too late for defendant to raise a general hearsay objection to the report as a whole. Nor was the quoted part of the report vulnerable to the hearsay objection, since it was an admission against the defendant’s interest. Nor was it error to use the report as rebuttal. The defendant’s evidence' included his deposition wherein he had denied making a statement to the investigating officer. The police report refuted this denial, so it was proper rebuttal.

Moreover, the statement in the police report attributed to the defendant was harmless, since it did not differ materially from defendant’s own version of the collision. By his deposition he admitted the collision with plaintiff’s stopped car. The statement in the police report was consistent with the defendant’s description of the collision given in his deposition. Our conclusion, fortified by the trial court’s denial of defendant’s after-trial motion, is that the point fails to present an error materially affecting the merits.

Damage Instruction

At plaintiff’s request the court gave Instruction 6, MAI 4.01, including the bracketed clause “and is reasonably certain to sustain in the future.” At the outset of plaintiff’s closing argument his counsel read this instruction to the jury. He immediately announced, “Your Honor, I think there is an error in this instruction.” There was a colloquy off the record. The court then stated: “Ladies and Gentlemen, I’ve accepted the suggested correction. It relates to Instruction 6, which I will now read in its corrected form.” The court did so, leaving out the future damage clause. Defendant neither objected nor asked for further action. He now claims the court erred in not “telling the jury to disregard the instruction as originally read.”

Conceding merit for the sake of argument, the defendant’s silence would preserve nothing for review. Civil Rule 83.13(a), V.A.M.R.; State ex rel. Miser v. Hay, Mo., 328 S.W.2d 672 [5]. But there is no merit, since a trial court may correct an erroneous instruction anytime before verdict. As in Wells v. Wilson, Mo., 293 S.W. 127 [1,2], we presume the jury understood the trial court’s statement about Instruction 6 being corrected.

As a dependent point defendant complains that despite the court’s revision of Instruction 6, the plaintiff nonetheless argued future damages and permanent injuries. - The defendant says “the court only sustained defendant’s objection as to a claim for permanent injuries.”

In the final portion of his closing argument plaintiff’s counsel spoke of the testimony of plaintiff’s treating physician. The doctor had last examined plaintiff on the day of trial and he testified that plaintiff still had a SO per-cent disability of his back and could not bend over. Plaintiff’s counsel argued that defendant’s counsel “would have you believe * * * [plaintiff] will walk out of here a healthy man.” Defendant then objected “to the argument that they are to consider future disability since that is not an issue in the case.” The court replied: “I’m not clear that Mr. Koes-ter was so arguing, but it is a fact that the claim does not include any claim for any permanent injuries into the future.”

The defendant has not adequately preserved this point for review. He seeks review of a part of the plaintiff’s jury argument that is or may have been responsive to something defendant had said in his own argument. In such a case the transcript should include both arguments. State v. Fuller, Mo., 302 S.W.2d 906 [5,6]. Here, the transcript contains only the plaintiff’s argument, not the defendant’s. So we cannot determine the merits of defendant’s objection. But the trial court had heard the defense argument plaintiff’s counsel was referring to, and could adequately assess both arguments and the objection. The court’s ruling was responsive to that objection. There was no request for further action. Giving weight to the discretion allowed a trial court in controlling jury arguments, we hold there was no abuse of that discretion.

We find no prejudicial error in either revising the damage instruction or in controlling the argument concerning plaintiff’s injuries.

Withdrawal Instruction

Some of plaintiff’s ailments were unrelated to his accidental injury. His testimony about medical, hospital and drug expenses concerned charges for treatment of both accidental and non-accidental ailments. This distinction came out in both direct and cross-examination, and the bills were received in evidence without objection. The court refused defendant’s modified MAI 30.01 telling the jury not to consider expenses unrelated to the accident The defendant now claims prejudicial error.

MAI 30.01 is a cautionary instruction, properly used where the trial court thinks the evidence might lead the jury to consider a false issue. See MAI Committee Comment; Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316 [6]. Here, the cross-examination clarified the overlapping expenses. Damage instruction MAI 4.01 limited the jury’s consideration to damages sustained “as a. direct result” of the collision. The cross-examination and MAI 4.01 combined to avoid consideration of a false issue. We cannot say the court abused its discretion in refusing to give a negative instruction on a matter it had already stated in the affirmative.

Inflammatory Argument

Defendant’s fifth point preserves nothing for review. In his brief he complains specifically of three rulings made to his objections during plaintiff’s closing argument. Defendant has failed to obey Civil Rule 83.05(a) (4) and (d), V.A.M.R., requiring appellants’ briefs to designate the transcript pages whereon statements may be found and verified. We need not seine through transcripts to learn whether alleged errors exist and are prejudicial. Flanigan v. City of Springfield, Mo., 360 S.W.2d 700 [7].

Furthermore, defendant did not adequately allege the errors in his after-trial motion and, thus, did not preserve the points for review. As said in Schneider v. Southwestern Bell Telephone Co., Mo.App., 413 S.W.2d 16 [1] : “The office of a motion for a new trial is to gather together the rulings complained of as erroneous, and solemnly and formally present them, one by one, in black and white to the judge in order that he have a last chance to correct his own errors without the delay, or expense, or other hardships of an appeal. This much is required. Less does not preserve the rulings for review.”

Defendant’s after-trial motion did not give the trial court this chance to correct the claimed errors. The motion merely said: “The Court erred in permitting plaintiff’s counsel to engage in inflammatory, prejudicial and incompetent closing argument over the objections of the defendants and in particular, but not by way of limitation, in permitting plaintiff’s counsel to mis-state the evidence and the testimony of the witnesses.” That was not enough. “Although an allegation of error may be general in a motion for a new trial where definite objections or requests, with specific statements of ground therefor, were made during the trial [Civil Rule 79.03, V.A.M.R.], surely an allegation of error in a motion for a new trial pertaining to argument should at least direct the trial court’s attention to the matters or subjects in argument of which the movant complains, rather than an allegation making reference to the whole of all arguments.” Beard v. Railway Express Agency, Inc., Mo., 323 S.W.2d 732 [17,18].

So, we hold that the defendant has not properly preserved his point — either in the trial court or here.

Answering the Jury’s Question

Defendant contends the trial court erred in answering a question by the jury during deliberation. The jury sent the judge a written note: “If all the jurors agree for the plaintiff but do not all agree upon the amount how should our verdict be written out?” After consulting with counsel the judge answered the question by a written note: “ * * * If nine (or more) of your number agree upon an amount, those nine (or more) should sign the verdict. * * * ” Defendant objected to this answer, suggesting that the court merely refer the jury to the form of verdict instruction MAI 32.02 and contending that the court’s written answer encouraged a verdict by nine jurors. Thereafter a verdict was returned for plaintiff signed by eleven jurors.

We stress the jury’s question about a non-unanimous verdict: “ * * * how should our verdict be written out?” To us, MAI 32.02 seems to answer the question. But to laymen who are unaccustomed to rendering verdicts, and who do not closely analyze MAI 32.02, there could well be doubt about “how should our verdict be written out?” It was a fair inference that the jury had considered MAI 32.02 but did not understand just how to apply it to their unanimous conclusion that the plaintiff should recover and their non-unanimous conclusion as to how much.

The trial judge who tries to help a jury follow the court’s instructions and bring in a proper verdict is indeed treading on thin ice. But where jurors are uncertain about the form of their verdict — rather than about their decision on the merits— it is proper for the court to instruct them on how to return a proper verdict. Sullivan v. Union Electric Light & Power Co., 331 Mo. 1065, 56 S.W.2d 97 [12, 13]; Martin v. Lingle Refrigeration Co., Mo., 260 S.W.2d 562 [8]; Riehle v. Broadway Motors, Inc., Mo.App., 350 S.W.2d 89 [1, 5].

Reviewing the trial court’s action here, we find that the written answer concerned only the form of the verdict; it was not coercive and it was not confusing. Hence, there was neither error nor prejudice. Defendant’s point is denied.

Excessive Damages

We review the evidence of damages in a light favorable to the plaintiff. A condensed statement will do.

Before the collision plaintiff lived on and worked a 180-acre grain farm. Also, he regularly worked as an inspector at an aircraft factory. Although he previously had some physical ailments, these had not interfered with his job, his farming, or his active participation in bowling, baseball and basketball. After the collision plaintiff suffered from continuous neck and back pains and general debility. All this persisted, and although plaintiff kept his job he had to give up farming. He was hospitalized for seven weeks. He wore a cervical collar for a year, and at the time of trial — five and a half years after the collision — he was still wearing a back brace, still taking therapeutic treatments, still in pain, and had a SO per-cent limitation in bending his back and turning his head. Several doctors had treated him and recommended a lumbo-sacral fusion, but plaintiff declined. Further, plaintiff testified to these special damages: six years’ loss of farm income at $2,000 to $3,000 a year; loss of wages, $1,100 to $1,500; hospital and medical expenses, $1,700. The total was more than the verdict.

We have found no prejudicial error leading to the jury’s verdict. Setting the amount of that verdict was an exercise of the jury’s fact-finding power — a power that courts are reluctant to curtail. Coffman v. St. Louis-San Francisco Ry. Co., Mo., 378 S.W.2d 583 [11]. Moreover, the trial court had authority to reduce the verdict by remittitur but declined. We must give consideration to those powers of the jury and trial court, and may interfere with the amount of the judgment only when we conclude it is grossly excessive and shocking to the judicial conscience. Ward v. City Nat’l Bank & Trust Co. of Kansas City, Mo., 379 S.W.2d 614 [11], and Peterson v. Kansas City Public Service Co., Mo., 259 S.W.2d 789 [7]. The record before us warrants no such conclusion.

Finding no prejudicial error, the judgment is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


source: Caselaw Access Project

author: WADDILL, Commissioner,

license: Public Domain

text:
    Alma Chapman NALL et al., Appellants, v. Thomas B. LARKIN, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1967.

      James L. Collier, Faurest & Collier, Hob-son L. James, Elizabethtown, for appellants.
    Paul M. Lewis, Hatcher & Lewis, Eliz-abethtown, for appellee.
   WADDILL, Commissioner,

Alma Chapman Nall, L. Kenneth Duts-chke and his son, Kenneth Logan Dutschke, appeal from a judgment awarding Thomas B. Larkin $1,173.85 against Nall, and $12,-500 against the Dutschkes. The trial court had directed a verdict for Larkin but had instructed the jury to determine the amount and apportionment of damages against Nall and the Dutschkes.

This action arose out of a vehicular collision on December 19, 1964. (The elder Dutschke was not present at the collision and all factual references hereinafter apply only to his son). The sequence of events is undisputed. The afternoon of the accident was clear and the pavement was dry as Dutschke drove his father’s flatbed truck in a northerly direction on Highway 31-W, a four-lane road divided by a median eighteen feet wide. He was traveling about 45 to 50 miles per hour and following a Ford Falcon at a distance of 50 to 75 feet. Alongside him in the passing lane was a vehicle driven by Nall at a speed of 50 to 55 miles per hour. The speed of the Falcon was suddenly slowed, presumably to turn right into a driveway, and Dutschke immediately steered his truck into the passing lane to avoid striking it. Nall then drove across the median to avoid hitting Dutschke’s truck. Larkin, who was driving •in the southbound lane next to the median, observed these events while about 250 feet away and brought his vehicle to a stop in a nearby crossover in the median. The Nall vehicle traveled out of control in the southbound lanes a distance of over 200 feet and struck the rear of the Larkin vehicle causing physical injury to Larkin. So far as the record discloses the identity of the driver of the Falcon was not established.

In urging reversal of the judgment it is contended that Nall was entitled to a directed verdict, Nall and Dutschke were entitled to sudden emergency and aggravated damage instructions, the jury ought not to have been instructed that Nall was required to blow her horn and observe signals and the objection to a hypothetical question should have been sustained.

It is argued by Nall that there was no evidence of her negligence to submit to the jury and therefore she was entitled to have her motion for a directed verdict sustained. Nall and her two daughters, passengers in her vehicle, testified that she sounded her horn three times as she attempted to pass Dutschke, but Larkin, Dutschke and his passenger stated that they heard no horn. More importantly, the investigating officer testified that Nall apparently did not apply her brakes as she traveled over 200 feet out of control. We conclude that Nall was not entitled to a directed verdict since there was evidence from which the jury could find that she was negligent in failing to take sufficient affirmative action to regain control of her vehicle. Collett v. Taylor, Ky., 383 S.W.2d 692.

Larkin insists that we should not review the Dutschkes’ request for a sudden emergency instruction because they failed to make timely objection to the instructions given by the trial court. At the close of all the evidence the Dutschkes offered an instruction substantially similar to that set out in Phipps v. Bisceglia, Ky., 383 S.W.2d 367, and based on the sudden emergency created by the operation of the Falcon. The tendered instruction obviated the necessity of a formal objection. CR 51; Commonwealth Dept. of Highways v. Farris, Ky., 351 S.W.2d 526.

Dutschke testified that he had glanced in his rearview mirror and observed the Nall vehicle some distance behind when the Falcon suddenly slowed in front of him. It was his opinion that the Nall vehicle was far enough away to permit him to pass the Falcon safely. As to the sudden change in the speed of the Falcon his testimony was corroborated by each of the other witnesses to the accident who testified.

While- Larkin insists Dutschke was not entitled to this instruction because the facts show that he created the emergency by failing to keep a proper lookout, we are unwilling to say this as a matter of law. This is a factor for the jury to consider under a proper instruction. McCoy v. Carter, Ky., 323 S.W.2d 210; Pratt Fruit Co. v. Sparks Bros. Bus Co., Ky., 313 Ky. 593, 233 S.W.2d 92.

Nall contends the trial court erred in rejecting a similar sudden emergency instruction that she offered based on the sudden movement of Dutschke into her lane of traffic. There is no evidence to indicate that she had any warning that she might have difficulty in passing Dutschke prior to the slowing of the Falcon and the swerving of Dutschke’s truck. Therefore she should not be denied the benefit of a sudden emergency instruction. Cf. Sloan v. Iverson, Ky., 385 S.W.2d 178. Whether she helped create this secondary emergency is again a factor for a properly instructed jury to consider. McCoy v. Carter, supra; Pratt Fruit Co. v. Sparks Bros. Bus Co., supra.

An instruction that Larkin was not entitled to damages if his negligence in not obtaining proper and timely treatment of his injuries aggravated them was jointly offered by the Dutschkes and Nall. They contend the trial court erred in refusing to give this instruction since the only medical witness testified that failure to properly treat the injury of Larkin could make it worse. However, Larkin testified that he received certain medical treatment as soon as he experienced physical difficulty (about one month after the accident). While the nature of this treatment was not described by a medical witness, the Dutschkes and Nall introduced no evidence to show that the treatment described by Larkin was deficient. We believe the trial court did not err in refusing this instruction.

Nall contends the trial court erred in its general instruction by holding her to a duty to sound her horn when passing Duts-chke and to observe other signals. She argues it would have made no difference if he had heard her horn since he admitted being aware of her presence behind him. His testimony shows he did not realize that she was attempting to pass his truck. The duty to sound her horn may properly be considered by the jury. As to the contention concerning her duty to observe other signals there was no evidence that Dutschke gave any signal of his intention to change lanes and consequently she had no duty in this respect.

Dutschke contends the trial court erred in overruling his objection, premised on lack of evidence to support it, to a hypothetical question directed to the medical witness. The statement to which he objects is “* * * assuming that he has had the pain that he described to you since December 20, 1964 * * Larkin had previously stated that he never had this pain until after the accident. Since it was based on facts in evidence the question was properly permitted. Sonne v. Booker, Ky., 310 S.W.2d 526.

We also conclude the trial court erred in directing a verdict in favor of Larkin. In' the event of another trial and if the evidence is substantially the same, the trial court, instead of directing a verdict, should enumerate the applicable statutory duties which Nall and Dutschke were required to perform in the circumstances of this case and will also give emergency instructions for both Nall and Dutschke. See Phipps v. Bisceglia, supra. All questions not specifically answered are reserved.

The judgment is reversed with directions ±0 grant a new trial.

All concur.


author: EDWARD P. HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Robert L. RATCLIFF and Rachel Ratcliff, his wife, Appellees.
    Court of Appeals of Kentucky.
    Nov. 17, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, Mark Anderson, Dept, of Highways, Elizabethtown, C. V. Sanders, Shep-herdsville, for appellant.
    Thomas B. Givhan, Shepherdsville, for appellee.
   EDWARD P. HILL, Judge.

The Commonwealth appeals from a judgment for $22,740 for the taking of a strip of land 33 feet wide from appellees’ lot located in Shepherdsville, Kentucky. The land is needed for raising the grade level of Kentucky Highway 44. Before the taking, the lot measured 103 feet fronting on the highway, the back measurement was 107 feet, and the side measurements were 150 feet on one side and 160 feet on the other.

The construction contemplated raises the grade of the road in front of appellees’ property six and one-half feet. The new road surface is moved four and one-half feet closer to appellees’ residence.

Appellees’ property was used for residential purposes up to the time of preparation of this case. A modern house trailer was located on a permanent foundation with a chimney attached. However, the property is listed as “commercial” at the present time.

Two witnesses for appellant fixed the before value at $15,250 and $14,500 and the after value at $13,200 and $12,000, respectively, for a difference of $2050 and $2500.

Appellees’ witnesses (five in number, including appellee) fixed before values ranging from $45,000 to $30,000 and after values ranging from nothing to $10,000. Appellee and one of his witnesses placed no value on the remaining land. The difference between before and after values as determined and testified to by appellee and his witnesses ranged from $25,000 to $42,000.

Appellee Robert L. Ratcliff testified he listed his lot for taxation at $15,000.

As noted above the verdict in circuit court was for $22,740. We readily conclude at first blush that the amount is grossly excessive and reverse the judgment.

All concur.


author: OSBORNE, Judge.

text:
    T. Ed ASHER, Jailer of Bell County, and Jess Slusher, Judge, Bell Quarterly Court, Appellants, v. Leonard MILLS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1967.
    William S. Tribell, Bell County Atty., Pineville, for appellants.
    Lowell Lundy, Pineville, for appellee.
   OSBORNE, Judge.

Leonard Mills, the appellee in this case, was arrested under a warrant issued by Jess Slusher, Judge of the Bell Quarterly Court, who is one of the appellants herein. The warrant charged him with possessing alcoholic beverages in dry territory for the purpose of sale. On the trial of the case and before the jury had been selected, one of the prospective jurors in the presence of all other jurors asked how the jurors would be paid. The Judge answered that they would be paid only if they found the defendant guilty. After the presentation of the Commonwealth’s evidence the defendant moved for a directed verdict on the ground that the system used for compensating jurors was unconstitutional. This objection was overruled, the defendant presented no evidence, and the case was submitted to the jury which returned a verdict of guilty fixing punishment at a month’s imprisonment and a fine of twenty dollars.

While incarcerated in the Bell County Jail pursuant to this order, appellant instituted this habeas corpus proceeding claiming that his conviction was void. The Circuit Court found that the conviction was void and ordered his release. The Bell County Attorney prosecutes this appeal on behalf of the defendants below, the Bell Quarterly Court Judge and the Bell County Jailer.

We find it necessary to dismiss the appeal for two reasons. First, this is a matter in which the Commonwealth is interested, for the question is the validity of a criminal conviction. KRS 15.020 provides that the Attorney General shall represent the Commonwealth before this court in such cases. KRS 69.020 which sets out the duties of the county attorney does not provide for the county attorney to represent the Commonwealth in such appeals. The record does not disclose any notice to the Attorney General or acquiescence by the Attorney General in the appeal.

Secondly, the appellants do not question the correctness of the decision of the trial court, but readily concede that the holding therein was proper. The issue they argue is the method of payment to juries in quarterly courts — an issue not presented by this appeal. They in effect are seeking an advisory opinion on an issue not before this court.

We do not feel we can disregard the issue of improper parties and lack of controversy and on our own decide the merits. However, if the case were so treated the result would have to be the same. This court has long since decided in Wagers v. Sizemore, 222 Ky. 306, 300 S.W. 918, and Roberts v. Noel, Ky., 296 S.W.2d 745, that a system whereby the decision maker in a criminal case is paid only if the defendant is found guilty violates the fourteenth amendment to the United States Constitution. It makes no difference whether the decision maker be the judge as in those cases, or the jury, as in this case. Indeed, a jury might be even more subject to this type of influence than a judge. It has also been decided by this court in Roberts v. Noel, supra, that such defect is not cured by the right to appeal de novo for “the accused is entitled to be tried before a fair and impartial tribunal in the first instance, where he will not be faced with the alternative of paying an unjust fine or of resorting to the delay, annoyance and expense of an appeal.”

The appeal is dismissed.

All concur.


author: CLAY, Commissioner.

text:
    Kirby RAGLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1967.

      Lewis A. White, Mt. Sterling, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

Appellant was found guilty of murder and sentenced to life imprisonment. He asserts four reversible errors were committed at the trial.

It is first contended the trial court improperly excused forthwith those members of the jury panel who acknowledged they had conscientious scruples against the imposition of the death penalty. It is argued that while these jurors opposed the death penalty generally, further examination may have demonstrated they had no such reservations in this particular case.

RCr 9.36(1) provides in part:

“When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict on the evidence, he shall be excused as disqualified to serve”.

We have held that unqualified opposition to capital punishment is a valid ground for challenge for cause in a case where such punishment is within the scope of the permitted penalty. Carson v. Commonwealth, Ky., 382 S.W.2d 85. Such a commitment by a prospective juror is a clear admission of prejudice and further examining him could serve no useful purpose. The source or strength of his conviction is immaterial. He has denied his impartiality, and the state as well as the defendant is entitled to an impartial trial. See 50 C.J.S. Juries § 275 e., page 1052; 31 Am.Jur., Jury, section 186 (page 160); United States v. Puff, 211 F.2d 171, 48 A.L.R.2d 540 (C.A.2). The trial court properly excused the challenged jurors without permitting further examination of the depth of their disclosed prejudice.

It is next contended the Commonwealth failed to prove that appellant killed the deceased. (Appellant had offered to stipulate this fact but the Commonwealth declined.) The uncontradicted evidence (including appellant’s own testimony) was that appellant, in broad daylight on a public street, at close range, shot Rodney Thompson four times with a pistol, Thompson fell bleeding, was taken to a hospital, and died within two hours. The proof is overwhelming that appellant shot Thompson for the purpose of killing him. The circumstantial evidence would permit no other conclusion than that the shots killed Thompson. This ground for a directed verdict has no merit.

Under RCr 9.48 the trial court separated the witnesses by excluding them from the courtroom (except when testifying). At the conclusion of appellant’s evidence, the court permitted two attorneys who had testified for the Commonwealth to testify further in rebuttal. They had been in the courtroom when appellant’s evidence was heard. The basis of the court’s ruling (after objection) was that “the rule” was not applicable to attorneys because they were officers of the court.

While Civil Rule 43.09 exempts “officers of (the) court” from the separation requirement, RCr 9.48 does not include such an exemption. However, it has long been recognized that the separation of witnesses is a matter resting within the sound discretion of the trial court. See Moore v. Commonwealth, Ky., 323 S.W.2d 577. In our opinion the initial exercise of discretion by the trial court by invoking the rule and excluding witnesses does not foreclose his right subsequently to make exceptions thereto in the interest of justice.

The rebuttal testimony of the two witnesses who had been present in the courtroom was not of the character which could have been influenced by hearing other testimony in the case. It was necessary to clarify certain circumstances about which appellant had testified. In addition, the witnesses were attorneys whose familiarity with courtroom procedures and trials would make it extremely unlikely that their testimony would have been influenced by the other evidence they had heard. We find neither abuse of discretion nor prejudice in permitting these witnesses to testify.

It is finally contended the court erroneously gave a self-defense instruction. The argument is made that since the facts did not tend to establish that appellant shot Thompson in self-defense, the giving of this instruction would induce the jury to believe that if this defense was not proven they must conclude the appellant had no defense at all.

Appellant testified that Thompson “run his hand in his pocket and that’s when I shot him”. This is the characteristic introduction to the claim of self-defense. The inference proj ected is that the deceased was reaching for a weapon which may have put appellant in fear of his life. Appellant’s own statement was the base upon which the hypothesis of self-defense could be erected, and the court is required to instruct on every state of the case reasonably deducible from the evidence. Duff v. Commonwealth, 297 Ky. 502, 180 S.W.2d 412. Had this instruction not been given, we speculate that appellant would here be claiming that such omission was reversible error.

Even if it was error to give this instruction, it could not have been prejudicial. All of the essential facts were undisputed. This was a clear case of killing without a semblance of justification. This instruction could not have influenced the jury to find an innocent man guilty.

The judgment is affirmed.

All concur.


text:
    KENTUCKY STATE BOARD OF EDUCATION, Appellant, v. Earl ISENBERG et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 17, 1967.

      Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for appellant.
    Edward F. Prichard, Jr., Frankfort, for appellees.
   EDWARD P. HILL, Judge.

The appellant, Kentucky State Board of Education, suspended the appellees, Earl Isenberg, Raleigh Phelps, and Guy Reneau, from membership on the board of education of Warren County, Kentucky, positions to which they had been duly elected. KRS 156.132(2). Subsequently they were removed pursuant to KRS 156.134. The board members thus removed appealed to the Warren Circuit Court under KRS 156.-134(4), wherein judgment was entered finding that: “There is no substantial evidence in the record to sustain the findings of the defendant, Kentucky State Board of Education, that plaintiffs were or are guilty of ‘unlawful neglect of duty or misconduct in office’ within the meaning of KRS 156.-132.” This appeal by the Kentucky State Board of Education followed.

Appellant may be designated herein as “State Board,” the Warren County Board of Education as the “County Board,” and the appellees as such.

In the summer of 1964 the Bureau of School Service, College of Education, University of Kentucky, made a comprehensive survey of the school system of Warren County, including its school plant needs and possible relocation and consolidation of facilities.

At the request of the State Board, a similar survey was made by the Kentucky Department of Education dated April 16, 1964, which recommended expansion of the previously existing South Warren High School, so as to serve all of Warren County south of Barren River; the consolidation and erection of a new high school building north of Barren River, then served by Bristow, Richardsville, and North Warren high schools; the construction of three new elementary schools; the remodeling of some existing facilities and the discontinuation of others. This survey and report recommended that sufficient funds be provided to build the new Northside High School, expand the South Warren High School, and build the three new elementary school buildings at the same time.

The State Board recommended and directed the County Board to adopt a slight modification of said surveys.

The County Board was never able to agree with the State Board upon a plan implementing the recommendations of the survey. On January 11, 1965, it unanimously submitted counter plans, or its own plans, to the University of Kentucky plan with one major exception — that two high schools be built instead of one. The State Board adopted certain items of this plan, setting up fourteen required steps and insisting upon priority of consolidation and high school construction. Apparently the County Board did not accept these modifications. Thereafter, and on August 19, 1965, the County Board by a vote of three to two (appellees voting therefor) adopted another building program and submitted same to the State Board.

Still another proposal was submitted to the State Board on March 16, 1966, the date of the hearing on charges preferred against appellees.

It is apparent from the record that the conflict between the State Board and the County Board (particularly the three ap-pellees) grows out of the question of priority to be given between the two building programs: (1) Construction and consolidation of high school buildings, and (2) construction of the new elementary buildings.

At a meeting of the State Board on January 20, 1966, the following statement of charges filed by the Superintendent of Public Instruction against the three appellees was adopted, and a hearing was set for March 16, 1966, thereon:

“(1) That each of the plaintiffs (appel-lees) knowingly failed to comply with the order of the State Board adopted August 12, 1964, that the Warren County Board follow either the University of Kentucky or the State Department of Education survey as the plan for the future building program.
“(2) That each of the plaintiffs (appel-lees) knowingly failed to comply with an order of June 16, 1965, that the Warren County Board officially advise the State Board whether it intends to follow the State Board’s directions in either complying with the State Department of Education or the University of Kentucky survey.
“(3) That each of the plaintiffs knowingly failed to comply with the order of the State Board of September 8, 1965, that the Warren County Board cause a school facilities survey to be made by one (of six) educational institutions named therein or proceed on either of the ‘ above mentioned surveys named in charges 1 and 2, and report its decision by December 8, 1965.
“(4) That each of the plaintiffs permitted or caused the school system of Warren County to be operated in an inefficient manner by failing to implement a school building program resulting in a dangerous and substandard condition in the Warren County School District.”

At a meeting of the State Board on March 17, appellees were suspended. Incidentally, appellees thereupon sought injunc-tive relief in Franklin Circuit Court from the action of the State Board. They were granted temporary relief without prejudice to the right of the Board to proceed with a hearing on April 12, 1966, to show cause why the appellees should not be permanently removed from office.

At the meeting of the State Board on April 12, 1966, an order was entered finding appellees guilty of “wilful neglect of duty and/or misconduct in office” and permanently removing them from office. The propriety of that order poses our question.

Unquestionably the State Board has a right under KRS 156.132 and 156.134 to suspend and remove county board members for misconduct in office or for wilful neglect of duty. Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473, 35 S.W.2d 857 (1931); Gearhart v. Kentucky State Board of Education, Ky., 355 S.W.2d 667 (1962); Hogan v. Kentucky State Board of Education, Ky., 329 S.W.2d 563 (1958); and Bell v. Board of Education of Shelby County, 308 Ky. 848, 215 S.W.2d 1007 (1948). But what is meant by “misconduct in office and/or wilful neglect of duty”? We may take one or all of the many definitions contained in the briefs for both appellant and appellees and come up with the same answer to this question. Briefly, “misconduct in office” means to conduct amiss; bad behavior. In Gover v. Stovall, 237 Ky. 172, 35 S.W.2d 24, 26 (1931), it was written:

“The word (misconduct in office) has a broad scope, and is more comprehensive than ‘immoral conduct’ or ‘immorality,’ since the acts composing them must necessarily be immoral in their nature. But conduct might not be intrinsically immoral and yet be ‘misconduct’ as growing out of the status and social relationship of the one engaged in it. According to the text in 40 C.J. 1220, it is defined as: ‘Bad behavior; improper conduct; mismanagement; or wrong conduct, in usual parlance, a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand.’ ”

Misconduct and wilful neglect of duty are defined in 43 Am.Jur., Public Officers, § 195, page 39, as follows: “[Ejither to maladministration or to wilful and intentional neglect and failure to discharge the duties of the office * * * or to breach of good faith and right action.”

The term is thus defined in 67 C.J.S. Officers § 60(2), page 250: “[I]nvolving moral turpitude, or which is contrary to justice, honesty, principles, or good morals * * * breach of the good faith and right action * *

With respect to “wilful neglect of duty,” it is written in 43 Am.Jur., Public Officers, § 204, page 46, 47:

“An act is considered as done wilfully within the meaning of such provisions when it is done with a bad or evil purpose, or when the officer consciously acts contrary to a known duty. The word ‘wilful’ in this connection implies knowledge on the part of the officer together with a purpose to do wrong. Conduct may be voluntary, thoughtless, or even reckless without necessarily being wilful. Moreover an erroneous interpretation of a law by a public officer, especially a layman, is not grounds for ouster.”

Were appellees proven guilty of “wilful neglect of duty” or such “misconduct in office” as to justify their removal under the foregoing definitions and our statutes?

There is no evidence of bad faith or. misconduct on the part of appellees unless it be inferred from the failure of the appel-lees to adopt in foto the recommendations of the State Board. In this connection, it is interesting to note KRS 156.070 gives the State Board the “management and control of the common schools,” while KRS 160.290 gives the local county board similar control and management within the district “[subject to] the rules and regulations of the State Board of Education.”

A rule or regulation (SBE 22.3) was introduced by the State Board. It merely provides for the making of surveys for the benefit of the county boards. This regulation does not divest the local boards of some discretion in matters covered by such surveys. This regulation was not mentioned either in the charges or at the hearings or in the order of the board removing appellees.

We do not intend to imply that the State Board does not have in a proper situation the ultimate and final word in matters pertaining- to the “management and control” of the entire school system of the state, including the .local districts. But the fact the statute imposes identical duties on the State Board and County Board contemplates that both board,s have some discretion in the matter in issue and that each board has a right, and indeed a duty, to exercise its discretion by good-faith negotiations and discussions in the best interest of schools.

To return to Regulation SBE 22.3, we find it requires no affirmative action but prevents action contrary to the survey. There is no contention that appellees took any affirmative action contrary to the surveys unless it be said that the submission of counter proposals constituted affirmative action. That we cannot say. The evidence establishes that the County Board sought acceptance of a modified time schedule of the surveys, but there was no outright repudiation or disregard of the surveys.

The County Board must be given ample time to formulate plans of its own, to study plans submitted to it by the State Board, to consider financing of construction, and to do other things incident to revolutionary changes in school plants and facilities. Let us not unduly rush it.

It is contemplated by KRS 162.060 that plans for buildings in county districts should originate with the county boards. It provides :

“The Superintendent of Public Instruction shall be furnished a copy of all plans and specifications for new public school buildings contemplated by boards of education and for all additions to or alterations of old buildings. He shall examine or cause to be examined all such plans and specifications and shall approve or disapprove them in accordance with the rules and regulations of the State Board of Education. No board of education may award a contract for an addition to or alteration of an old building until the plan has been approved by the Superintendent of Public Instruction.”

Appellees insist that appellant had other more appropriate remedies, such as declaratory judgment procedure and mandamus. This may be true, but clearly appellant had the additional remedy of removing appel-lees upon legal grounds. It is not for this court to condemn the selection of the remedy relied on.

We construe the statute quoted in this opinion to require the State Board, the county boards, and the Superintendent of Public Instruction to work not separately and arbitrarily, but to work in harmony and in reason to accomplish results in the best interest of the school system.

We have carefully considered the tocsin request of appellant that its action in removing appellees be approved as a healthy tonic for the entire school system. But we conclude the evidence heard by the State Board (and there was no additional proof heard in the circuit court although authorized) falls short of establishing bad faith, misconduct, or neglect of duty on the part of appellees.

The judgment is affirmed.

All concur.


author: MORRISON, Judge.

text:
    James Elvin LIVINGSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40803.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Dan R. McCormack, Dallas, for appellant.
    Henry Wade, Dist. Atty., Arch Pardue, Tom Reese and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is assault with intent to murder; the punishment, 25 years.

Appellant’s grounds of error one and two must be sustained. The record in this case and the record in our relatively recent case of Blessett v. State, 168 Tex.Cr.R. 517, 329 S.W.2d 434, are almost identical. While appellant was being cross examined at the hearing on the question of guilt or innocence, he was asked if he was the same person who had been convicted of petty larceny in 1951 in Portland, Oregon. Upon objection the jury was retired. In the jury’s absence and over his counsel’s objection that the same did not involve moral turpitude, appellant was questioned about a 1963 conviction for carrying a pistol.

In the presence of the jury he was asked and required to answer over his counsel’s objection about such pistol case, and the court stated that it was “admitted for another purpose”. Appellant was then questioned about a 1952 conviction for robbery, and the court overruled the objection that the same was too remote, and appellant testified that he went to prison in 1952, and “got out” in 1955, which was well in excess of 10 years prior to the instant trial in 1967.

The only difference between the case at bar and Blessett v. State, supra, is that in Blessett the accused was interrogated in the absence of the jury about several intervening misdemeanor convictions which did not involve moral turpitude, and the court stated that the proof of such misdemeanor convictions “takes this out of the general rule with regard to remote convictions.” In the case at bar the court said that the misdemeanor conviction which was proven before the jury was “admitted for another purpose”.

In Blesset v. State, supra, we said:

“The testimony on the hearing in the absence of the jury apprised the trial court of the remoteness of the 1946 conviction and the objection that it was too remote when offered before the jury should have been sustained. 45 Tex.Jur. 235, sec. 318; 1 Branch 2 Ed., 213-214, sec. 192; Abercrombie v. State, 159 Tex.Cr.R. 417, 264 S.W.2d 727; Stevens v. State, 162 Tex.Cr.R. 19, 280 S.W.2d 283. The testimony introduced by the appellant without objection, that she had not within the last ten years been convicted of a felony did not authorize the state to then prove that she had been convicted of murder over twelve years before the commission of the instant offense, unless there was first a showing that such prior conviction was not too remote due to a conviction of a felony or of a misdemeanor involving moral turpitude occurring since said conviction. 1 Branch 2 Ed., p. 210, sec. 190, and p. 213, sec. 192.
The testimony of appellant’s prior conviction was of a prejudicial nature and its admission in evidence calls for a reversal.”

For the error pointed out, the judgment is reversed, and the cause is remanded.


text:
    Carl Emanuel CLINTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40824.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Bill W. Bailey, Dallas, for appellant.
    Henry Wade, Dist. Atty., Arch Pardue, Charles Caperton and Kerry P. FitzGerald, Asst. District Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with two prior convictions for burglary alleged for enhancement; the punishment, life.

Appellant’s first ground of error is that there was a variance between the allegations in the indictment and in the proof. Though the indictment does not allege any specific location, his contention is predicated upon Officer Slaughter’s twice-given testimony that he apprehended appellant at the Morningside Grocery Store in the 4100 block of Second Avenue, whereas he later testified in answer to a question by the prosecutor that the store in question was located at 4611 Second Avenue. The owner and the manager of the store placed the location at 4611 Second Avenue. Regardless of this discrepancy in Slaughter’s testimony, he (Slaughter) did draw a diagram of the burglarized premises which was later identified by the manager during his testimony.

In view of the above, there can be no question but that the officer and manager were referring to the same location, and no variance exists.

His second ground of error is that the State failed to prove venue. The owner of the burglarized premises testified that his store was located in the city of Dallas, Dallas County, Texas.

Both grounds of error are overruled, and the judgment is affirmed.


author: ONION, Judge.

text:
    Earnest Lloyd DOVER, Appellant, v. The STATE of Texas, Appellee.
    No. 40768.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Rehearing Denied Dec. 13, 1967.
    James A. Moore, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phylis Bell and Alvin A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, enhanced under the provisions of Article 62, Vernon’s Ann.P.C., life.

In view of our disposition of this appeal, a recitation of the facts is not deemed necessary. Appellant urges one ground of error. He contends that the trial court committed reversible error in refusing to allow the appellant the use of a witness’ offense report for cross-examination purposes and in refusing to examine the same in camera for possible inconsistencies, and in refusing to incorporate said report in the record for the purpose of appeal.

In rebuttal the State called L. H. Meyers, Jr., a city of Houston police officer, who was the only police officer to testify during the trial. On direct examination he related that on August 5, 1965, (the date of the alleged offense) while on duty he saw the appellant at a location approximately nine (9) blocks from the place where the testimony showed the robbery to have taken place. He further related that the appellant was in his presence from 8:30 to 9:30 p. m. on that occasion and that the location where he first observed the appellant was some fifteen (IS) miles from the location where appellant’s alibi witnesses had placed him at that time.

On cross-examination appellant’s counsel requested the witness’ offense report. The report had not been exhibited or used by the State in the presence of the jury and appears to have been prepared by Officer Barta, the witness’ partner. Nevertheless, when the witness acknowledged having examined the one-page report the day before and related that he considered the report his own, the court granted the request. Thereafter the district attorney handed the report to appellant’s counsel.

At such time it appears that appellant’s counsel observed that there were “sup-plementals” stapled to the one-page offense report, and he requested the production of the entire police report. The court denied such request, as well as the request that the court examine the remainder of the report in camera to determine if there were any inconsistencies between the witness’ testimony and that portion of the report to which appellant had been denied access. The court, likewise, refused the request to incorporate in the record the “supplemen-tals.”

It was shown by Officer Meyers’ testimony that neither he nor his partner had prepared the supplemental offense report and that he had not refreshed his memory therefrom. It does appear though at the time he examined his partner’s one-page summary the entire report had been stapled together. The record does not reflect who had prepared the remainder of the report of the Houston Police Department.

In support of his contention appellant cites and relies upon Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467, Martinez v. State, 172 Tex.Cr.R. 186, 354 S.W.2d 936, and Pruitt v. State, 172 Tex.Cr.R. 187, 355 S.W.2d 528.

It is readily apparent that we are not here dealing with the requested production (for purposes of cross-examination and possible impeachment) of a previous and presently available statement shown by the evidence to have been made by a State’s witness himself. The rules applicable thereto are discussed and distinguished in Sewell v. State, Tex.Cr.App., 367 S.W.2d 349.

We are presented with the question of whether a defendant is entitled, upon request, to an available supplemental offense report not prepared by the witness or his partner nor used by the witness to refresh his memory when the request is made for the purpose of cross-examination and possible use for impeachment purposes.

It is observed that such supplemental offense report had not been used or exhibited by the State in the presence of the jury, and the trial court, in a liberal application of the so-called Gaskin rule, required the production of that portion of the offense report which the witness’ partner had prepared and from which the witness had refreshed his memory. He denied, however, the request for production of the remainder of the offense report which had not been so prepared and so used.

When confronted with a similar question in Artell v. State, Tex.Cr.App., 372 S.W.2d 944, this Court, after citing Gaskin v. State, supra, Martinez v. State, supra, and Pruitt v. State, supra, said:

“We have been cited no .case, nor has an exhaustive inquiry revealed one, which requires that a report made by a person other than the witness be made available under the rule set forth above.
“We are not inclined at this juncture to expand the rule, especially in view of the relatively recent expression of the Supreme Court of the United States in Palermo v. U. S., 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287, on a similar problem, as follows:
“‘It is clear that Congress was concerned that only those statements which could properly be called the witness’ own words should be made available to the defense for purposes of impeachment.’ ”

See also Johnson v. State, Tex.Cr.App., 378 S.W.2d 76.

The record before us presents a much stronger case than Artell or Johnson for in each of those cases the witness had used the report or reports of other persons to refresh his memory.

We conclude, therefore, that the trial court judge did not err in refusing appellant’s request for the entire offense report or in refusing to examine the same in camera or in denying the incorporation of such report in the record.

Under the circumstances here presented, appellant was not denied a fair and impartial trial or the effective assistance of counsel.

The judgment is affirmed.

      . To the extent that a witness’ testimony might be influenced by refreshing his memory from the reports of others, the rule in Artell v. State, supra, has been criticized. 16 Baylor Law Review 51, 59, 60.


text:
    Pablo CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 40823.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.

      Bryan Wingo, Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Douglas Tinker, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from a conviction for Murder with Malice Aforethought based on an indictment charging the appellant with killing Humberto Perez “by stabbing him with a knife.” After a verdict of guilty by the jury at the trial which commenced on the 13th day of March, 1967, the appellant requested the judge to assess punishment. Following a hearing on punishment which reflected that this 20-year-old appellant had twice previously been convicted of burglaries and of the misdemeanor offenses of Aggravated Assault and Unlawfully Carrying a Pistol, the judge assessed punishment at 35 years confinement in the Texas Department of Corrections.

We are confronted at the outset with the question of whether appellant’s brief assigning his grounds of error on appeal was timely filed. See Article 40.09, Sec. 9, Vernon’s Ann.C.C.P. We conclude that it was not. The District Clerk notified appellant’s employed counsel by certified mail of the completion of the record on July 13, 1967. See Article 40.09, Sec. 7, V.A.C.C.P. On July 31, 1967, the trial court approved the record noting that no objections were offered thereto. On September 29, 1967, appellant’s brief was filed with the clerk. Such filing was not within the 30 days after the approval of the record by the court as required by Article 40.09, Sec. 9, supra, nor do we find any indication in the record before us that the trial court granted any extension of time for such filing. Therefore the grounds of error set forth in such brief are not before us for review, nor do we find any unassigned error which in the interest of justice we would be called upon to review. Article 40.09, Sec. 13, V.A.C.C.P.

We observe, however, that appellant’s untimely filed brief contained three grounds of error. In his first he complains that the indictment, which was not introduced into evidence, was taken to the jury room with the exhibits. There is no evidence at all in the record before us to show that this occurred but even if it had, no error is reflected. Byrd v. State, Tex.Cr.App, 373 S.W.2d 745; Lindsey v. State, 108 Tex.Cr.R. 187,299 S.W. 399. Cf. Urban v. State, Tex.Cr.App., 387 S.W.2d 396.

In his second ground of error appellant contends the trial court erred in permitting the introduction into evidence of prior sworn statements of certain defense witnesses used by the State for impeachment. The prior written statement of Gloria Gonzales was admitted into evidence by agreement of the parties, and the statement and confession (of stabbing Virginia Maldonado at the time and place of the killing alleged) of Marta Cantu were admitted upon appellant’s counsel’s insistence that the State be required to offer the sam:. The prior statement of Robert Cantu with which the State sought to impeach him was not admitted into evidence. Appellant is in no position to complain, nor do we find any ment in his contention that before such prior statements can be used for impeachment there must be a compliance with the confession statute (Article 38.22, V.A.C.C.P.).

We further observe that in the charge the trial court properly limited the use of the impeachment testimony.

Appellant’s third and last ground of error set forth in his untimely filed brief complains of the sufficiency of the evidence to sustain the conviction. He acknowledges, however, that the testimony of Mrs. Susie Perez, wife of the deceased, might constitute a basis for the jury’s verdict but contends there were discrepancies in her testimony. We have carefully examined this 531 page record and find that the evidence is clearly sufficient to support the conviction.

The judgment is affirmed.


text:
    Lonnie L. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40754.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Rehearing Denied Dec. 13, 1967.
    Vernis Fulmer, Marion G. Holt, Nacog-doches, for appellant.

      Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is assault with intent to murder ; the punishment, five years.

Appellant’s first ground of error is that the District Attorney committed reversible error when he informed the jury that there was more than one charge of assault to murder pending against appellant during the voir dire examination of the jury panel. The indictment charged an assault upon Willie Pleasant on August 1, 1965. While examining prospective juror Brown, the prosecutor asked if he knew appellant and then asked if he knew that he was charged with having assaulted George Pleasant, Jr., on August 1, 1965. The following transpired :

Appellant’s Counsel: “If your honor please, I would like to decide which one he is going to try now, as he read the indictment it was Willie Pleasant, of course he knows there are two on him, now he is taking the other one.”
State’s Counsel: “Your honor, I possibly made a mistake.”
Appellant’s Counsel: “I don’t care which one they try, we would enjoy trying them both at the same time ?”
State’s Counsel: “We will agree to that, if he waives, we will agree to try both cases, and let the jury assess punishment in both cases if he agrees to it.”
Appellant’s Counsel: “I am not familiar enough with the new code to know whether it can be done or not.”

Since it was appellant’s counsel who made the fact of two indictments known to the panel, we conclude that the court did not err in denying appellant’s motion for a mistrial made at the conclusion of the case.

Appellant’s next ground of error is that at the conclusion of the first day’s proceedings, one of the jurors (Sutton) who did not hear any instructions from the court about not reading newspaper accounts of the trial, did read the evening paper which carried a banner:

“25 CRIMINAL CASES SCHEDULED Two Capital Cases Set for Feb. 28.”

Several cases were mentioned and in the middle of the article appears:

“Lonnie L. Johnson, Nacogdoches, for assault with intent to murder, two indictments.”
Further down in the article appears:
“Lonnie L. Johnson, Railroad Street, theft.”

No facts were set forth in the article. It was merely a recitation of the court’s docket. Juror Sutton was not questioned as to whether he had read the “Railroad Street, theft” portion of the article. What we have said in discussing appellant’s first ground of error disposes of any injury that appellant may have suffered from read ing the entire article, including that portion concerning “two indictments.”

With no further showing of injury, we would not feel called upon to reverse this conviction, if, in fact, Sutton did read the “Railroad Street, theft,” portion of the article. See Banner v. State, 154 Tex.Cr.R. 153, 225 S.W.2d 975.

Appellant’s last ground of error is that the court erred in not granting a new trial so that his wife might testify for him. She was not called as a witness at the trial. The matters set forth in her affidavit filed in support of appellant’s motion for new trial were matters which must have been known to appellant at the trial or could by exercise of reasonable diligence have been ascertained by asking his wife; A new trial may not be granted every time a witness has a change of heart.

In Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, we said:

“To grant a new trial on this state of facts would permit Dr. Bolding to act as the final arbiter on the question of punishment. That is, he might refuse to disclose what he knew in the premises and await the verdict of the jury, which, if displeasing to him, might be set aside, by the simple expedient of changing his mind and deciding to testify. Such a procedure could very easily in some other case permit an appellant to hold back a witness to insure a new trial if the verdict went against him.”

Finding no reversible error, the judgment is affirmed.


text:
    Willie Lee REED, Appellant, v. The STATE of Texas, Appellee.
    No. 40804.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    D. C. Gandy, Fort Worth (Court-appointed on appeal only), for appellant.
    Frank Coffey, Dist. Atty., R. J. Adcock, John Howze and R. W. Crampton, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is a sale of heroin; the punishment, 20 years.

Agent Roberts of the Bureau of Drug Abuse Control of the U. S.- Food and Drug Administration testified that while acting under cover in the city of Forth Worth, he became acquainted with appellant and was often admitted to the apartment where appellant resided with his brother and his brother’s girl friend. Roberts at that time was posing as a pimp from Dallas, and all the parties freely discussed their nefarious activities with him, and he was permitted to watch them capping a white powder which appellant said was “H”. During their conversations, appellant told Roberts that prior to his service in the Army, he had been “one of the main dealers in narcotics in the Fort Worth area controlling the narcotic market involving the Negro population”, and had trained his brother “in how to deal in narcotics” and that after he returned from the Army, he had become active in the sale of capsules of heroin.

He then testified that he accompanied appellant to Grand Prairie, where appellant sold three capsules of heroin, and on to Dallas, where appellant attempted to make another sale, and thence back to Fort Worth, where just before they parted, he purchased a capsule himself. This is the sale upon which this conviction is predicated. During their conversations appellant offered to take Roberts in as a partner if Roberts would put up the money to “finance the operation.”

Appellant, testifying in his own behalf, denied that he had ever sold any heroin to Roberts or anyone else. He stated that Roberts had tried to get him to locate narcotics and dangerous drugs and that he had not done so.

We find no written objections to the court’s charge, and we find it unnecessary to discuss appellant’s contention that the court erred in failing to submit to the jury the defense of entrapment, because appellant denied that he committed the offense charged. It is the general rule in this and most jurisdictions that the defense of entrapment is not available to a defendant who denies that he committed the offense charged. 61 A.L.R.2d 677.

Appellant’s second ground of error is that the evidence is insufficient to support the conviction because it shows that appellant acted as an accommodation for his brother in making the sale to Roberts. Reliance is had upon Durham v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737. In that case we held that “[i]f an accused is in no way interested in behalf of the seller but acts only as an agent of the prosecutor he is not guilty of making a sale.” The facts before us here are quite different. Roberts testified that appellant proposed a partnership with him because his brother, who was an addict, was cheating him by using some of the narcotics, whereas, since Roberts was not an addict, the profits with him as a partner would be greater. This takes this case out of the rule set forth in Durham.

Appellant’s last ground of error is that the court erred in permitting Roberts to testify as to what appellant told him of his past activities in narcotics which he used to recommend himself to Roberts as an advantageous partner. Though not cited, it appears that all of appellant’s conversation with Roberts was admissible under the rationale expressed in Carrier v. State, 159 Tex.Cr.R. 421, 264 S.W.2d 728. There we held that the entire conversation between the robber and his victim was admissible to show that the victim was placed in fear of the robber. Here appellant was trying to get Roberts to back him financially in an illegal enterprise and all that he told Roberts about his fitness as a partner would be admissible.

Finding no reversible error, the judgment is affirmed.


author: RENFRO, Justice.

text:
    Robert B. PARRISH, Appellant, v. WASHINGTON NATIONAL INSURANCE COMPANY, Appellee.
    No. 16858.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1967.
    Rehearing Denied Dec. 1, 1967.

      Parnass, McGuire, Lewis & Handy, and Thomas R. Harnett, III, and Annette Stewart, Irving, for appellant.
    Atwell, Grayson & Atwell, and Anthony Atwell, Dallas, for appellee.
   RENFRO, Justice.

On December 22, 1957, James M. Parrish entered into a written agreement styled “Commission and Personal Production Bonus Agreement” with Washington National Insurance Company.

The agreement provided for installation of a group insurance plan on a school system unit basis within the geographical area covered by District V of the Texas State Teachers Association. The Group Policy was numbered J2745. A supplemental agreement was entered into on January 6, 1959, and a modified “Amendment to Commission and Personal Production Bonus Agreement” was executed by the parties on November 25, 1960. James M. Parrish died on March 7, 1965.

On September 14, 1965, Robert B. Parrish, administrator of the estate of James M. Parrish, deceased, sued Washington National Insurance Company to recover commissions collected by defendant after the death of James M. Parrish. It was the administrator’s position that commissions were due the estate as long as Group Policy No. J2745 remained in force.

Defendant filed a lengthy motion for summary judgment, to which was attached all three written agreements heretofore mentioned.

The court also had before it interrogatories and affidavits on file in the case. The motion set out several separate and distinct grounds for judgment. In a short form judgment the court found: “It is therefore ordered, adjudged and decreed: 1 Defendant’s Motion for Summary Judgment is in all things granted, * *

The appellant administrator contends the court erred in rendering summary judgment for defendant because (1) the contract, as amended, granted decedent the right to commissions as long as Group Policy No. J2745 remained in force; (2) because such ruling constitutes the declaration of a forfeiture not provided for in the contract; and (3) the contract is ambiguous and susceptible to more than one construction, one of which would be in favor of appellant.

The defendant answered the points of error by the following counterpoints:

1. “The trial court was correct in granting defendant’s motion for summary judgment because the contract specifically denies the right to renewal commissions upon proper termination of the agency or upon cessation of the agency relationship, both of which occurred as a matter of law.
“(a) No renewal commissions are due appellant, decedent’s representative, because the contract was terminated by appellee for ‘just cause’, which term is specifically defined in the contract. The agent, being dead, could not meet the specific requirements contained in the contract and appellee therefore had just cause for termination by contractual definition.
“(b) No renewal commissions are due appellant in any event because no right to renewal commissions can exist, as a matter of law, unless the contract provides such right to the agent after the termination of the agency relationship; the contract clearly contains no such provision.
“(c) No renewal commissions are due appellant because appellee had the unilateral right to terminate the payment of renewal commissions for just cause in its opinion; the death of the agent furnished such just cause as a matter of law, apart from the specific definitions of just cause.”
2. “The trial court simply enforced the terms of the contract and did not declare a forfeiture; the contract and record before this court is clear and unambiguous, and there is no room for further evidence; the trial court, on many independent grounds, was correct as a matter of law.”

We sustain the counterpoints and affirm the trial court’s judgment in favor of defendant.

The original contract of December 22, 1957, provided:

“The Company agrees to pay commissions to the Agent in accordance with the following Commission Table on the total adjusted earned premium for the following group insurance contract, subject to the provisions hereinafter contained: Group Policy No. J 2745 (District No. V, Texas State Teachers Association). Commission Rates Applicable to Premiums for: First Certificate year 10% Renewal Certificate Year 5%.
“8. The Agent will submit all personally produced business under Master Policy No. J 2745 through the Company’s Group Office in Dallas, Texas.
“The Agent further understands and agrees that:
“1. The Company reserves the right to decline to renew said group insurance contract.
“2. The Company agrees to pay commissions for said group contract during the first policy year and during subsequent renewal policy years while said contract is in force at the rate specified in the Commission Table so long as: (a) The Agent is acceptable to and recognized as an Agent of Record by the holder of the group contract; (b) The Agent complies with applicable laws and rulings of state insurance departments; (c) The Agent complies with the rules and regulations of the Company; and (d) The Agent is actively engaged in the promotion of the Group Plan issued to Texas State Teachers Association District V.
“3. The commissions under the Commission Table are to be the total commissions payable to the Agent, and if it is found necessary by the Agent to employ the services of assistants, subagents, or other persons in order to properly service the business and maintain it in force, the expense so incurred will be deducted from the commissions otherwise payable hereunder, provided however that any persons so employed by the Agent must be acceptable to the Company and to the policyholder.”

The supplemental agreement of January 6, 1959, pertains to bonus and is not in issue in this case.

The last and final “Amendment to Commission and Personal Production Bonus Agreement” is here reproduced in toto:

“The Commission and Personal Production Bonus Agreement dated December 22, 1957, between Washington National Insurance Company, Evanston, Illinois, and James M. Parrish, as amended by the Supplemental Agreement dated January 6, 1959, between the same parties, is hereby amended in the following particulars.
“Effective September 1, 1960, the commission rate applicable to premiums for the first certificate year is reduced to 5%, except that the first year premiums on business which became effective prior to September 1, 1960, shall continue to earn commissions at the rate of 10% for the balance of the first certificate year.
“The last paragraph on the second page of said agreement, identified as paragraph 2 and describing the conditions under which the Company agreed to continue the payment of commissions, is made null and void, and effective September 1, 1960, the following is substituted therefor:
“2. The Company agrees to pay commissions for said group contract while said contract is in force at the rate specified until September 1, 1961 so long as: (a) The Agent is acceptable to and recognized as an agent of record by the holder of the group contract; (b) The Agent complies with the applicable laws and rulings of state insurance departments; (c) The Agent promotes the Group Plan issued to Texas State Teachers Association District V; (d) There is no conflict of interest affecting the Agent’s promotion of such Group Plan on behalf of the Company; (e) There is no change in the circumstances or business considerations upon which the payment of commissions is based; (f) The Agent does not influence or attempt to influence the members of the holder of the group contract to become insured with any other company; (g) The Agent does not bring about or attempt to bring about an endorsement or sponsorship of any other company by the holder of the group contract; and (h) There is no substantial change in such Group Plan.
“The payment of commissions under this agreement after September 1, 1961 will be at the Company’s pleasure and until further notice; provided, however, the payment of commissions under this agreement will not be terminated unless in the judgment of the Company there is just cause for such termination. Just cause for termination of this agreement shall exist when any one or more of the conditions for the payment of commissions set forth in the preceding paragraph shall not be satisfied, but just cause for termination shall not be limited to such stated conditions.
“Forbearance or neglect of the Company to insist upon the performance of this agreement or to declare a forfeiture or termination in case of a violation of its provisions by the Agent or in case of a failure to satisfy its conditions by the Agent, shall not constitute a waiver of the provisions and conditions of this agreement or of the rights and privileges of the Company thereunder.
“In Witness Whereof, the parties have signed this amendment on 11-25 1960.
“(Signed) James M. Parrish
“Washington National Insurance Company By (signed) Theo. Heckel, Vice President”

It will be noted that the 1960 amendment provided that decedent would, prior to September 1, 1961, receive renewal commissions so long as he complied with eight set out conditions; it then provided that after September 1, 1961, deceased would be entitled to commissions only so long as it was the Company’s choice to pay him such commissions but provided that the Company would not terminate the payment of commissions without just cause. “Just cause” was defined in the final agreement as noncompliance or nonexistence of any one or more of the conditions for the payment of commissions set forth in “the preceding paragraph.”

After September 1, 1961, as seen, the grounds for cancellation of the agreement and commissions were enlarged.

Defendant contended in the trial court and contends here that the plain provisions of the contract gave defendant the right to terminate the payment of commissions both before and after September 1, 1961 if at any fixed time any one of the following conditions was not satisfied: “ * * * s0 iong as. The Agent is acceptable to and recognized as an agent of record by the holder of the group contract, (b) The Agent complies with the applicable laws and rulings of state insurance departments. (c) The Agent promotes the Group Plan issued to Texas State Teachers Association District Number V. * * * (e) There is no change in the circumstances or business considerations upon which the payment of premiums is based.”

It seems clear the above conditions could not exist after the agent’s death and that the Company had just cause to terminate the payment of commissions.

The agent could not then be accepted and recognized as an agent of record by the holder of the group contract; he could not comply with the applicable laws and rulings of the State Insurance Department; he could not promote the group plan and there was of necessity a change in the circumstances or business considerations upon which the payment of premiums was based.

In Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954) the Supreme Court held that generally the parties to an instrument intend every clause to have some effect and in some measure to evidence their agreement.

In General American Indemnity Company v. Pepper, 161 Tex. 263, 339 S.W.2d 660 (1960), the Supreme Court said: “Ordinarily, all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties. * * * It is well established that a contract is to be construed in accordance with its plain language. * * * The words used in this clause are not susceptible of two meanings. They are clear and unambiguous, and, therefore, there is nothing to be construed. It is only where there is uncertainty as to the meaning of a contract or some portion thereof that rules of construction are to be applied.”

The argument of defendant that Parrish cannot fill the condition precedent to payment of renewal commissions, and that the agreement has been terminated by his death, and by the Company, and that nonfulfillment or termination precludes the administrator from recovery of commissions after the death of Parrish is supported in whole or in part by Stancliff v. Southland Life Ins. Co., 172 S.W.2d 521 (Tex.Civ.App., 1943, no writ hist.); Wyatt v. Southwestern Life Ins. Co., 149 S.W.2d 1063 (Tex.Civ.App., 1941, dism., judgment cor.); Billington v. State Life Ins. Co., 88 S.W.2d 780 (Tex.Civ.App., 1935, no writ hist.); and American Nat. Ins. Co. v. Teague, 239 S.W. 604 (Tex.Com.App., 1922).

Furthermore, the contract did not provide for payment of renewal commissions after the termination of the agency relationship.

In Baker v. Missouri National Life Insurance Company, 372 S.W.2d 147 (Springfield Ct. of App., Mo., 1963), it was held: “ * * * we recognize and reiterate the firmly-established limitation that an agent is not entitled to commissions on renewal premiums paid after termination of his agency, unless his right to receive such commissions is expressly stipulated in or is clearly to be gathered from his agency contract.” In the instant case there is no express stipulation that renewal commissions were to be paid after the termination of the agency relationship and there is no language in the contract from which it “is clearly to be gathered” that renewal commissions were to be paid after termination of the contract.

It is quite clear that the weight of authority is to the effect that an agent cannot recover commissions on renewal premiums (absent an agreement to that effect) following the termination of his agency. Appleman, Insurance Law and Practice, Vol. 16, p. 495, § 9005; Couch on Insurance 2d, Vol. 4, p. 371, § 26:400, p. 376, § 26:403; Cunningham v. Cunningham, 183 S.W.2d 985 (Tex.Civ.App., 1944, no writ hist.); Allied Mutual Insurance Co. v. Roberson, 306 F.2d 130 (4th Cir., 1962); Christensen v. Prudential Insurance Company of America, 204 S.W.2d 459 (St. Louis Ct. of App., Mo., 1947).

“An insurance agent’s right to renewal commissions must be derived from the contract itself; it is not a vested right.” (Emphasis added.) Couch on Insurance 2d, Vol. 4, p. 372, §26:400.

Since Parrish had no contractual rights to renewal commissions beyond the termination of his agency, had no vested rights in such renewals, and the defendant had at least five contractual rights upon which it might terminate the agreement for payment of renewal commissions, we respectfully hold that no fact issue was presented to the court and therefore summary judgment was properly rendered for defendant.

Affirmed.


author: GREEN, Chief Justice.

text:
    James E. CHILCOAT d/b/a Texas Real Estate Company, Appellant, v. FIRST VICTORIA NATIONAL BANK, Appellee.
    No. 337.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 26, 1967.
    Rehearing Denied Nov. 21, 1967.

      W. Jack Salyer, of Harris, Salyer & Huebner, Bay City, for appellant.
    Marion M. Lewis, of Guittard, Henderson, Jones & Lewis, Victoria, for appellee.
   OPINION

GREEN, Chief Justice.

Appellant James E. Chilcoat d/b/a Texas Real Estate Company, defendant below, appeals from a summary judgment rendered by the trial court in favor of plaintiff First Victoria National Bank. The bank by this suit sought recovery as a third party beneficiary on six letter agreements signed by defendant, all identical except as to job number and location and amount, a typical one reading as follows:

As stated by appellee in its brief:

“It was the position of the Appellee before the Trial Court that the six letters referred to above, admitted to be genuine and signed by the Appellant, were third party beneficiary contracts, with the Appellee being the beneficiary thereof; that the Appellant breached said contracts by failing and refusing to pay the amounts due thereunder jointly to Climatrol Company and Appellee, which failure and refusal Appellant has admitted; thereby the Appellee has suffered damages in the amount that it would have received if Appellant had complied with his promise, to-wit, the sum of $5,745.00; that there is no genuine issue as to any material fact necessary to the determination of this case, and that Appellee is entitled to judgment as a matter of law. The Trial Court granted Appellee’s motion.”

It was shown that Elder, d/b/a Clim-atrol Co., had separate contracts with defendant to install airconditioning units and ducts and do other construction work on six houses being built by defendant, and these were the contracts mentioned in such letter agreements. Elder was indebted to plaintiff bank, and delivered these signed agreements to bank, which, relying on same according to the petition and the affidavit of its appropriate official, extended certain obligations of Elder and advanced him some funds the amount or purpose of which is not shown in the record. Defendant did not at any time execute any checks payable jointly to plaintiff and Elder, and did not pay to plaintiff any sums which may have been called for by said instruments. Elder went into bankruptcy and did not pay his debt to bank, which debt amounted to more than the total of the sums represented by the six letter agreements and the bank, alleging its loss by reason of defendant’s failure to perform, brought this suit against defendant James E. Chilcoat d/b/a Texas Real Estate Co., alleging its rights as a third party beneficiary under the agreements between defendant and Elder, to recover the amounts set forth in such agreements. The allegations were fully supported by the accompanying affidavit of plaintiff’s vice president who handled this matter for the bank, and by certain admissions made by defendant in answer to written requests of plaintiff.

However, defendant by sworn pleadings and affidavit definitely denied under oath that the facts surrounding his execution of the instruments sued on constituted or was intended to constitute plaintiff a third party beneficiary as to such agreements.

The evidence before the trial court, being the pleadings, admissions, sworn answers and affidavits of defendant and the bank official handling the matter for plaintiff, when considered most favorable to defendant according to summary judgment procedure, shows that on April 25, 1965, when these six instruments plead by plaintiff were executed, Elder had not completed performance of his contracts with defendant, and in fact had not even started work on some of them. He was unable to proceed with the work required until he secured financial aid. According to defendant’s evidence, which in this summary judgment matter we must accept as true, these six written agreements were signed, with plaintiff’s knowledge, in order to enable Elder to get funds with which to perform his contracts with defendant, and not for the purpose of benefitting plaintiff bank as to Elder’s existing debts. Defendant denied that Elder secured any money from plaintiff to proceed to perform these contracts, and stated that when he, defendant, contacted plaintiff because the work Elder had contracted to do remained undone after the executed instruments had been left with the bank, he was told that the bank would not advance any money to Elder to work on those jobs. Defendant denied under oath that he had paid Elder any money under the contracts, and stated that “in order to finish said houses, Defendant was forced to pay sums direct to freight people, materialmen and laborers, no payments were made directly to A. J. Elder.”

Appellant’s sole point of error is that the trial court erred in granting the summary judgment because there was a material fact question as to whether appellee was a third party beneficiary. Appellee’s reply point is that the court correctly granted such judgment because appellee was the third party beneficiary of the contracts sued on as a matter of law.

The rule of law applicable is stated thusly in 13 Tex.Jur.2d 628, Contracts § 352:

“A third party cannot recover under a contract unless he shows that it is made for his benefit and that the contracting parties intended that- he benefit by it. One claiming to be a third party beneficiary under a contract alleged to have been made for his benefit cannot recover thereon merely because he will be incidentally benefited by its performance; he must be a party to the consideration or the contract must have been entered into for his benefit, and he must accept it as it was made. * * * ” citing many authorities.

The principle is stated as follows in Banker v. Breaux, Tex.Comm.App., 128 S.W.2d 23, opinion adopted by the Supreme Court:

“The law is well established that a third person may sue to enforce a contractual provision made for his benefit, but to entitle him to enforce such provision it must be shown that the contracting parties intended to make same for his benefit. The intention of the contracting parties in this respect is of controlling importance. 10 Tex.Jur. pp. 478 and 483. It becomes necessary, therefore, to examine the foregoing provision, in the light of the attending circumstances, to ascertain the intention of the parties to said deed in making said provision.”

See also Citizens Nat. Bank in Abilene v. Texas & P. Ry. Co. et al., Tex.Sup., 150 S.W.2d 1003, 1006; Lone Star Steel Company v. Reeder, Tex.Civ.App., 407 S.W.2d 28, wr.ref. n.r.e.; Price v. Lee, Tex.Civ.App., 119 S.W.2d 673, wr.dism.; Cooley v. Cash, Tex.Civ.App., 207 S.W.2d 436, n.w.h.; Casey v. Watts, Tex.Civ.App., 130 S.W.2d 396.

We do not pass upon the defense of lack of consideration discussed by appellant in his brief, since that defense was not specifically pleaded by defendant below, Rule 93 (j) Texas Rules of Civil Procedure, and was not raised by point of error in this court.

In passing upon the merits of this appeal, we have been guided by the principles of law applicable to summary judgments as summarized in Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, Tex.Sup., 391 S.W.2d 41, p. 47, as follows:

“Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigher v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v. Bolin, supra; Gulbenkian v. Penn, supra. Evidence which favors the movant’s position is not considered unless it is uncontradicted. If such un-contradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Woolgrowers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Valley Stockyards Co. v. Kinsel, supra; James T. Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960); Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 at 642 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943); Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, [114 S.W.2d 226,] 136 S.W.2d 207 (1940). After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law.”

Applying the foregoing rules to the ‘summary judgment evidence’ we are of the opinion that the record does disclose the presence of a genuine issue as to a material fact as to whether appellee was a third party beneficiary, and appellant’s point of error is sustained.

Reversed and remanded.