text:
    REPUBLIC INSURANCE COMPANY, Appellant, v. Juanita Coe HOPE et al., Appellees.
    No. 5778.
    Court of Civil Appeals of Texas, Waco.
    Oct. 27, 1977.
    Rehearing Denied Nov. 17, 1977.

      Harlan Harper, Jr. and Barry H. Panning, Panning & Harper, Dallas, for appellant.
    Warwick H. Jenkins, Jenkins & Jenkins, Waxahachie, for appellees.
   HALL, Justice.

Juanita Coe Hope and L. W. Scott brought this suit against Republic Insurance Company on a policy of insurance issued to plaintiffs by defendant to recover for losses allegedly suffered by plaintiffs when vandals twice burglarized a house plaintiffs were constructing in the City of Waxahachie and stole tools, equipment, and materials located in the house, and also damaged the structure. Defendant answered with only a general denial. After a trial without a jury, judgment was rendered in favor of plaintiffs for $2,961.59. Defendant appeals asserting among other contentions (1) that the policy does not cover theft losses, and (2) that the evidence does not establish “the reasonable cash market value” of the items in question “on or about the respective dates of the two thefts, in and around Ellis County, Texas,” as required by the policy. We overrule defendant’s contentions and affirm the judgment.

The basic policy is denominated on its face a “TEXAS STANDARD POLICY.” Under “Location” is typewritten, “Country Club Village, Waxahachie, Texas”; and under “Property” is typewritten, simply, “Builder’s Risk.” The policy insures plaintiffs “from 11/18/74 To 11/18/75 at the location of property against direct loss resulting from any of the Perils (listed below) . and only on the property described and located as provided hereon.” The following are listed under “Perils”:

“Fire and lightning.
“Extended Coverage — Windstorm, Hurricane, Hail, Explosion, Riot, Civil Commotion, Smoke, Aircraft, and Land Vehicles.
“Physical Loss Form # 148.”
“Total Insurance” is stated in the policy to be “$27,000.00.”

Attached to the basic policy are a “Form No. 148” and a “Form No. 21.” All three instruments are dated November 18, 1974.

The Form No. 148 is headed:

“PHYSICAL LOSS FORM
“Dwelling Building(s) Only
“For attachment to a Texas Standard Policy. Applicable only to dwellings designed for occupancy by not more than two families.”

It contains the following provisions, among many others:

“Insurance under this form attaches only to the dwelling(s) described on the first page of this policy and extensions herein provided, and, if described on the first page of this policy, to any private garage, servants’ house, and if used solely in connection with the occupancy of said described dwelling(s), structures and other outbuildings on the premises of said described dwelling(s), for each of which an amount of insurance is shown in the space provided therefor on the first page of the policy, and not exceeding said amount.
“Wherever the word ‘fire’ appears in this policy . . . the words ‘all risks of physical loss’ shall be substituted therefor as to coverage provided by this form on dwelling(s), building(s), structure(s) and extension^) herein provided.
“Section I
“COVERAGE: Subject to the provisions of this form and of the policy to which this form is attached including endorsements thereon, this policy insures against all risks of physical loss to the described dwelling(s), building(s) or structure(s) covered under this form.
“Section II
“EXCLUSIONS: This policy does not insure against—
“A. Loss to either plumbing or heating systems including appliances, or by leakage or overflow from such systems or appliances, caused by freezing while the described building(s) is vacant or unoccupied, unless the Insured shall have exercised due diligence with respect to maintaining heat in the building(s) or unless such systems and appliances had been drained and the water supply shut off.
“B. Loss by termites or other insects; deterioration; . . . rust; wet or dry rot; mould; . . . settling, shrinkage or expansion in foundations, walls, floors, or ceilings; .
“F. Loss by theft of any property: (1) which at the time of loss is not an integral part of any dwelling, private garage, servants’ house, and if used solely in connection with the occupancy thereof, structures and other outbuildings on the premises of the dwelling(s); (2) from a building in process of construction; .
“Section III
“DEFINITIONS:
“A. Dwellings: A Dwelling shall mean any building designed for occupancy by not more than two families and shall include everything which is legally a part of the dwelling, except machinery which is not used solely in the service of the dwelling
“C. Rental Value: Rental Value shall mean in the event of damage or destruction of the described property by any peril insured hereunder, the fair rental value of the building(s) or parts thereof, as furnished and equipped by the owner, and whether rented or not. Loss of rental value shall be computed for the period of time, following loss, which would be required with the exercise of due diligence and dispatch, and not limited by the expiration date of this policy, to restore the property to a tenantable condition
“D. Additional Living Expenses: Additional Living Expense shall mean, in the event of damage or destruction of the described property by any peril insured against, the necessary increase in living expense incurred by the Insured in order to continue as nearly as practicable the normal standard of living of the Insured’s households for . . (1) the time required, with the exercise of due diligence and dispatch, to repair or replace the damaged or destroyed property; [or] (2) the time required for the Insured’s household to become settled in any permanent quarters.
“Section IV
“C. Rental Value and Additional Living Expense: The insured may apply up to ten per cent (10%) of the amount of insurance specified for the principal dwelling item under this policy to cover loss (where such loss is by any peril insured against) for both (1) Rental Value of the described building(s) with respect to any portion thereof not occupied by the Insured and (2) Additional Living Expense with respect to any portion of the described building(s) occupied by the Insured, but not to exceed said ten per cent (10%) for both (1) and (2) in the aggregate.
“Section V
“E. Vacancy. The policy Condition suspending coverage while a described building is vacant beyond a period of thirty consecutive days is hereby waived with respect to loss caused by perils other than fire and lightning and vandalism and malicious mischief and is extended to ninety days with respect to loss caused by the perils of fire and lightning and vandalism and malicious mischief. The ninety days vacancy period shall commence with the date the building becomes vacant whether or not such time is prior to the inception date of this endorsement. A building in course of construction shall not be deemed to be vacant.
“G. Permission to Make Alterations and Repairs: Permission is granted to make alterations, additions and repairs, and to complete structures in course of construction, and this policy covers all lumber and materials on the premises or adjacent thereto.

The Form No. 21 is headed, “BUILDER’S RISK — ACTUAL COMPLETED VALUE FORM.” In its pertinent parts it provides as follows:

“1. This policy being for an amount not to exceed one hundred per cent (100%), hereinafter referred to as ‘this Company’s percentage of liability,’ of the actual values existing in any building or structures described below, from time to time as values are added, and not to exceed in any event ‘this Company’s percentage of liability’ of the ‘Estimated Completed Cost,’ as hereinafter provided, on the following described property:
(1) Class of Construction: Brick-Veneer.
Intended occupancy: Dwelling.
No. Country Club Village, Waxaha-chie, Texas. Lot 1, Block J.
Estimated Completed Cost: $27,-000.00.
“2. This policy as to each or any building or structure above described shall be and constitute insurance on each or any of the said buildings or structures while in course of construction in an amount not to exceed ‘this Company’s percentage of liability’ of the actual values which may have been placed into or made a part of each or any of such buildings or structures. The amount of insurance applicable to each or any of the buildings or structures insured under this policy while in course of construction shall change from time to time in accordance with the actual values which have been put into each or any of such buildings or structures (in so far as they may have been completed at the time of loss); .
“3. Materials, Equipment and Supplies: This policy also covers materials, equipment, supplies and temporary structures of all kinds to be used in the construction of the said building and (when not otherwise insured under this or any other policy) builders’ machinery, tools and equipment; all while forming a part of, or contained in said building [or on the premises of Construction] .
“4. Expiration: It is understood and agreed that this insurance shall attach only while the building or buildings are in the course of construction, and until fully completed and occupied either in whole or in part. In no event shall this insurance extend more than thirty (30) days beyond the completion of the main building.”

Defendant argues that assuming the trial court construed the policy to be a “Builders’ Risk” policy, then the basic policy is composed of the Texas Standard Form and the Builders’ Risk Form No. 21; that the only endorsement would be the Physical Loss Form No. 148; that although the Builders’ Risk Form provides theft insurance “by implication” in its paragraph 3, the Physical Loss Form expressly excluded theft coverage in its Section II,F,(2); and that specific terms of an endorsement on coverage control over general terms of the policy on the same coverage. We reject this argument.

Where several instruments form one overall contract, the court will assume in its construction of the contract that the parties honestly intended the terms of the various instruments should be effective to accomplish their purposes, and will reconcile apparently conflicting provisions and give effect to all of them, if possible. Guadalupe-Bianco River Authority v. City of San Antonio, 145 Tex. 611, 200 S.W.2d 989, 1003 (1947). Applying these rules, we construe the instruments in question to provide plaintiffs Builders’ Risk coverage on the structure of the house at an increasing value as construction progressed until thirty days after construction was completed, under the Texas Standard Form and the Builders’ Risk Endorsement (Form No. 21). Then, once the house was completed and ready for occupancy (or occupied by plaintiffs or their tenant), plaintiffs were accorded coverage in the amount of $27,000.00 on the house under the Physical Loss Form (Form No. 148). Although in Section V,G this endorsement expressly acknowledged plaintiffs’ right to complete construction of the house after the effective date of the endorsement, theft from the structure while under construction was expressly excluded from its terms in Section II,F,2, in keeping with its basic purpose of providing insurance after completion of construction. However, such coverage was provided in the policy under the terms of the Builders’ Risk endorsement (Form No. 21), in keeping with its basic purpose of providing insurance during construction. Additionally, this endorsement provided, in paragraph 3, indemnity for loss occasioned by theft of plaintiffs’ materials, equipment, supplies, and tools located on the premises during construction.

In any event, under defendant’s theory the contract of insurance would have been an “all risks” policy during and after construction; and defendant would have waived the theft exclusion relied upon by failing to affirmatively plead it. Rule 94, Vernon’s Tex.Rules Civ.Proc.; T.I.M.E., Inc. v. Maryland Casualty Company, 157 Tex. 21, 300 S.W.2d 68, 73 (1957); Camden Fire Ins. Ass'n v. Moore, 206 S.W.2d 104, 107 (Tex.Civ.App.—Galveston 1947, writ ref. n. r. e.).

The proof shows that in November 1974, plaintiffs secured a building permit for and began construction of the house in question at 441 Gingerbread Lane, in an addition known as Country Club Village, in the City of Waxahachie. The house was completed on March 26, 1975. On January 26th, and again on March 10th, the house was broken into and burglarized, and the thefts and damages sued upon were committed. Both acts of theft and vandalism occurred at night, and were discovered the next morning. In each instance plaintiffs replaced the tools and equipment stolen, and repaired the damages, soon after the occurrence. They sold the house in September, 1975.

Plaintiff Scott had been in the house construction business for 20 years at the time of trial. He was shown to have expert knowledge on the costs of the damage repair, and the value of the tools, materials, and equipment stolen. He testified to these costs and values. Defendant now asserts that the witness’s testimony did not show “reasonable cash market value” of the items “at or about the dates” of the burglaries “in Ellis County.” Defendant did not make these objection on the trial. Its only objections (and these were infrequent) were “no proper predicate laid” (without any factual basis stated) and, simply, “we object.” These objections were too general to preserve defendant’s present complaints. Plyler v. City of Pearland, 489 S.W.2d 459, 461 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref. n. r. e.); 1 McCormick & Ray, Texas Law Of Evidence (2d ed. 1956), p. 22, § 24. Additionally, the record shows that the witness testified first to the losses suffered in the January burglary, and then to the losses caused by the March burglary. Time and again in the course of his testimony the witness directly related the losses to “reasonable market value,” “reasonable and fair market value,” “fair market value,” “reasonable cost to repair,” “in the Wax-ahachie area,” “at the time of replacement,” and “at the time of repair.” All of his testimony of damages was related to those terms, although they were not expressly contained in every question propounded to him.

Defendant’s remaining points and contentions are also without merit. They are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: CORNELIUS, Chief Justice.

license: Public Domain

text:
    Robert T. MINOR, Appellant, v. The COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellee.
    No. 8461.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 1, 1977.

      Tom P. Briggs, Briggs & Brown, Dallas, for appellant.
    Edwin J. Lamberty, Jr., Patterson & Lamberty, Inc., Dallas, for appellee.
   CORNELIUS, Chief Justice.

Robert T. Minor filed this worker’s compensation suit alleging that while in the course and scope of his employment with the Harrison and Walker Construction Company he sustained an injury which resulted in his total and permanent disability. The case was submitted to a jury upon special issues. The jury failed to find that appellant sustained an injury on the date alleged, and a take nothing judgment was accordingly entered against him.

Shortly after the alleged injury, appellant consulted Dr. Thomas Glover. He was only with Dr. Glover for about two minutes. The doctor did not examine him but only referred him to an orthopedic surgeon. Dr. Glover did not testify at the trial but his record of appellant’s visit, which contained appellant’s name, age and sex, and the notation “Low back pain — started when he was working construction work. Rx: Referred to Orthopedic Surg.” was offered into evidence by appellant. The parties had stipulated that the record could be admitted under Tex.Rev.Civ.Stat.Ann. art. 3737e (Supp.1976-1977) without predicate or authentication, subject to all valid objections to the contents thereof. Upon appellee’s objection, the trial court ruled the notation “Low back pain — started when he was working construction work . . .” was not admissible, but admitted the record with the notation deleted.

The appellant has assigned four points of error, all of which relate to the exclusion of the notation contained in the doctor’s report.

The first point of error contends that the notation “Low back pain” as contained in Dr. Glover’s report should have been received in evidence because, as a declaration of present bodily condition, it was admissible as an exception to the hearsay rule. Appellee concedes that the notation was admissible to prove appellant’s pain but argues that its exclusion was harmless because the issue of appellant’s pain was not disputed, and in fact was well established by other proof adduced by appellant. We believe appellee’s position is well taken. At most the notation “Low back pain” would have constituted cumulative evidence of the undisputed fact that appellant suffered back pain. That being true, its exclusion was not reversible error. Cottrell v. Texas Employers’ Insurance Association, 293 S.W.2d 219 (Tex.Civ.App. San Antonio 1956, writ ref’d n. r. e.); Fluitt v. Employers Mut. Liability Ins. Co. of Wis., 242 S.W.2d 649 (Tex.Civ.App. San Antonio 1951, writ dism’d).

By his second and third points of error the appellant complains of the exclusion of the notation “started when he was working construction work” from Dr. Glover’s record.

When a physician is consulted by a patient for the purpose of diagnosis and treatment, the physician may relate descriptive statements made to him by the patient as to the events causing the injury, not as evidence of their truth, but in explanation of his expert opinion in evidence as to the cause, nature or duration of the injury or disability. Pullman Palace Car Co. v. Smith, 79 Tex. 468, 14 S.W. 993 (1890); Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (1938); Select Insurance Company v. Patton, 506 S.W.2d 677 (Tex.Civ.App. Amarillo 1974, no writ); 1 McCormick & Ray, Texas Evidence, Sec. 835, p. 610; Sec. 843, pp. 627, 628 (2d ed. 1956). The rule cannot, however, be applied to the instant case. Dr. Glover did not testify. There was no opinion to explain. We cannot accept appellant’s reasoning that Dr. Glover’s act in referring appellant to an orthopedic surgeon should be considered an opinion or treatment to the extent that the self-serving external facts reported by appellant to Dr. Glover would thereby be admissible to explain that action, even though the doctor was not called to testify. Appellant testified that Dr. Glover only spent two minutes with him and did not examine or treat him. It would be improper, we believe, to allow appellant to admit into evidence what would otherwise be purely self-serving declarations under the guise of explaining the doctor’s action in declining to treat him and referring him to another doctor.

As an alternative theory, appellant attacks the acknowledged rule which prohibits the admission, as independent proof of the facts, of hearsay statements of past external events made by a patient to a treating physician. It has been suggested (1 McCormick & Ray, Texas Evidence, Sec. 843, p. 628) that such statements are only slightly less reliable than descriptions of past pain and symptoms, which are admissible as independent proof of the fact. 1 McCormick & Ray, Texas Evidence, Sec. 845, p. 629 (2d ed. 1956). But it has been held repeatedly by the courts of this state that the former statements are admissible only to explain the opinion of the expert, and are otherwise within the realm of inadmissible hearsay. Travelers Insurance Company v. Smith, 448 S.W.2d 541 (Tex.Civ.App. El Paso 1967, writ ref’d n. r. e.); Newman v. Dodson, 61 Tex. 91 (1884); Texas Employers’ Ins. Ass’n. v. Morgan, 187 S.W.2d 603 (Tex.Civ.App. Eastland 1945, writ ref’d w. m.). We are not disposed to overturn that rule.

The third point of error asserts that the notations in Dr. Glover’s record should have been admitted to rebut affirmative testimony offered by the appellee that appellant was silent as to any connection between his symptoms and a job related injury.

When evidence of unnatural silence is given, controverting evidence may be admitted by the adversary in rebuttal, not as evidence that the words spoken were true, but as evidence that he did speak. Hines v. Blackman, 226 S.W. 142 (Tex.Civ.App. Dallas 1920), aff’d, 239 S.W. 908 (Tex.Com.App. 1922, jdgmt adopted); 1 McCormick & Ray, Texas Evidence, Sec. 836, p. 612 (2d ed. 1956); 23 Tex.Jur.2d, Evidence, Sec. 142, p. 210. By the introduction of the initial evidence of silence, a relevant issue is raised as to whether or not statements were made, thus making the utterance of the statements admissible, not as proof of the facts stated, but as an operative fact in itself. 1 McCormick & Ray, Texas Evidence, Sec. 795, p. 585 (2d ed. 1956). However, the notation in question here was not offered by way of rebuttal but as part of appellant’s case-in-chief. At the time it was offered it was not admissible, because there was no evidence or inference of silence to rebut. In those circumstances the trial court properly excluded the evidence. Testimony which is inadmissible in the first instance may become relevant and admissible in rebuttal. Texas Employers’ Ins. Ass’n. v. Thames, 236 S.W.2d 203 (Tex.Civ.App. Fort Worth 1951, writ ref’d); 23 Tex. Jur.2d, Evidence, Sec. 142, p. 210. Thus, after evidence of silence was produced by appellee, the rebuttal evidence would have been admissible. Associated Indemnity Corporation v. Baker, 76 S.W.2d 153 (Tex.Civ.App. Amarillo 1934, writ dism’d); Hines v. Blackman, supra. But, as appellant chose not to re-offer the evidence when it became admissible, he may not complain of its exclusion.

The fourth point of error asserts that the entirety of Dr. Glover’s record was admissible as an exception to the hearsay rule. The point is cumulative of the other grounds here asserted and is overruled.

The judgment of the trial court is affirmed.


text:
    Carl A. PRESLEY, Appellant, v. ROYAL INDEMNITY INSURANCE COMPANY, Appellee.
    No. 8476.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 1, 1977.
    Jenks Garrett, Arlington, for appellant.
    Anne Gardner, Brown, Crowley, Simon & Peebles, Fort Worth, for appellee.
   CORNELIUS, Chief Justice.

In this suit for worker’s compensation benefits, the jury found that the plaintiff did not sustain an injury on the date alleged in his petition. A take nothing judgment was rendered in response to the jury finding. Plaintiff appeals on grounds that the jury’s finding of no injury is against the great weight and preponderance of the evidence and that the trial court committed reversible error in submitting to the jury an instruction relating to the defendant’s contention that a previous injury was the sole cause of plaintiff’s disability. The judgment will be affirmed.

Although a jury finding that the plaintiff sustained no injury amounts only to a finding that the plaintiff failed to carry his burden of proof on that issue and requires no affirmative evidence to support it, a contention that such a finding is against the great weight and preponderance of the evidence invokes the fact finding power of the Court of Civil Appeals and requires that court to weigh all the evidence in the record and to reverse and remand the case if it concludes that the verdict was so against the weight and preponderance of the evidence as to be manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973).

Plaintiff went to work for General Motors in December of 1967. In 1969 he sustained a back injury for which he underwent a laminectomy and spinal fusion in 1970. He returned to work sometime in 1971. He was not entirely free from pain and restriction but was able to do ordinary work for which he was trained. He testified that on February 21, 1974, he suffered another injury to his back while he was bending and twisting in order to insert deadening material and carpet in a new automobile. He said that he reported his injury to his foreman and went to the hospital that night where he was given heat treatment. He continued to work except for a short time in March when he was hospitalized for bronchitis. On April 8, 1974, he went to Dr. Van Zandt complaining of pain in his neck, shoulders, back and hip, and relating that he suffered the injury on February 21. On April 19 Dr. Van Zandt again saw the plaintiff, placed him on sick leave and began therapy. Plaintiff improved and was back at work in August of 1974. On April 30, 1975, plaintiff again returned to see Dr. Van Zandt. At that time the doctor found that plaintiff had experienced a gradual downhill course and he ordered a myelogram. On the basis of that test Dr. Van Zandt re-explored plaintiff’s back surgically and performed a transverse fusion. The doctor testified that in his surgery he found that the previous fusion had not taken and that a piece of bone graft was pinching a nerve in plaintiff’s back. After the second surgery, plaintiff gradually improved but had not been released to go back to work at the time of trial. He testified he was unable to perform his work at the plant, and could no longer do ordinary things such as bowling or playing tennis or golf.

Plaintiff’s own testimony was the only direct evidence that he sustained an injury on February 21, 1974. His other evidence consisted of Dr. Van Zandt’s recitation of the history of the injury given to him by the plaintiff, the testimony of fellow workers about plaintiff’s absences because of illness, and the testimony of his wife and others who said that plaintiff had reported to them that he had suffered the injury on February 21. The defendant produced no direct evidence disputing the injury but relied upon Dr. Van Zandt’s testimony, upon moving pictures taken shortly before the trial which showed plaintiff bending and shoveling in connection with his landscape business, and upon impeachment of the plaintiff’s testimony in general. Dr. Van Zandt’s testimony was inconclusive. At one point he said it was his opinion, based upon reasonable medical probability, that the February 21 injury reported to him by plaintiff was a producing cause of the plaintiff’s problems. At other points, the doctor said that plaintiff’s back had not been sound since the initial surgery in 1970, that the fusion at that time was not solid and the bone graft did not take, that the graft impinged upon and pinched a nerve, and that in his opinion the pinched nerve was what was causing plaintiff’s problems. Hospital records for the night of February 21,1974, were introduced and they failed to reveal that plaintiff had visited or had been treated by the hospital on that date as he had testified.

Upon a careful reading of the record here, we cannot say that the jury’s finding of no injury is against the great weight and preponderance of the evidence. Plaintiff was an interested witness and the jury was not required to accept his testimony that he had suffered an injury on February 21, 1974. Lopez v. Associated Employers Insurance Company, 330 S.W.2d 522 (Tex.Civ.App. San Antonio 1959, writ ref’d); Reed v. Aetna Cas. & Sur. Co., 535 S.W.2d 377 (Tex.Civ.App. Beaumont 1976, writ ref’d n. r. e.). Although the fact of injury was not directly contradicted by the defendant’s evidence, there was sufficient doubt cast upon plaintiff’s testimony by the medical evidence, the impeachment evidence and the surrounding circumstances as would justify reasonable minds in believing that it was the 1969 injury and the resulting unsuccessful surgery, rather than the alleged injury of 1974, which had caused plaintiff’s problems. Certainly the plaintiff’s testimony was not so clear, direct and positive and so lacking in circumstances tending to discredit it or impeach it as to render it binding upon the jury. 24 Tex.Jur.2d, Evidence, Sec. 713, pp. 373, 374; Ibid., Sec. 714, pp. 375-377. The testimony of plaintiff’s wife and fellow workers that plaintiff reported the injury to them constituted hearsay as to the fact of injury and could not form the basis of a verdict even in the absence of an objection. 1 McCormick & Ray, Texas Evidence, Sec. 31, p. 33 (2d ed. 1956). And Dr. Van Zandt’s recitation of the history of the injury as reported to him by the plaintiff, although admissible to show the basis of the doctor’s opinion as to the cause of plaintiff’s problems, was not competent evidence that an injury in fact occurred on the date alleged. Travelers Insurance Company v. Smith, 448 S.W.2d 541 (Tex.Civ.App. El Paso 1969, writ ref’d n. r. e); Bean v. Hardware Mutual Casualty Company, 349 S.W.2d 284 (Tex.Civ.App. Beaumont 1961, writ ref’d n. r. e.). The first point of error is respectfully overruled.

The second point of error complains of the following instruction which the trial court gave to the jury:

“You are instructed that if an employee has suffered a previous on the job injury and suffers a subsequent on the job injury which resulted" in a condition of incapacity to which both injuries or their effects have contributed, you shall consider the combined effects of the injuries in determining whether or not the employee has sustained any total and/or partial disability. On the other hand, if you find that the defendant has established by a preponderance of the evidence that the injury of May, 1969, was the sole cause of the present alleged incapacity, then you may not find that the alleged injury of February, 1974, was a producing cause of any alleged incapacity.”

It is urged that there was no evidence that the 1969 injury was the sole cause of plaintiff’s disability, and that the giving of the instruction in the absence of evidence in support thereof was error which in all probability caused the rendition of an improper verdict. We cannot agree. In view of the jury’s finding that plaintiff suffered no injury on February 21, 1974, the question of the previous injury being the sole cause of plaintiff’s disability was not reached and became immaterial. Lopez v. Associated Employers Insurance Company, supra. Compare Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364 (1956); Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App. Houston-14th Dist.1973, writ ref’d n. r. e.); Hammon v. Texas & New Orleans Railroad Company, 382 S.W.2d 155 (Tex.Civ.App. Tyler 1964, writ ref’d n. r. e.); Texas and New Orleans Railroad Co. v. Broadway, 345 S.W.2d 814 (Tex.Civ.App. Beaumont 1961, no writ). We are unable to agree that the mere giving of the instruction on sole cause probably misled the jurors on the principal issue or in some way induced them to find against the plaintiff on the question of injury. See Texas & Pacific Railway Company v. Snider, 159 Tex. 380, 321 S.W.2d 280 (1959); Prunty v. Post Oak Bank, supra; Roberts v. K-Mart Foods, Inc., 470 S.W.2d 751 (Tex.Civ.App. Dallas 1971, writ ref’d n. r. e.).

The judgment is affirmed.


author: ODEN, Justice.

text:
    Robert Frank HALE, Jr., Appellant, v. Judy DeSanders HALE, Appellee.
    No. 8514.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 1, 1977.
    Dennis L. White, Edith L. James, Dallas, for appellant.
    Larry F. Amerine, Rick W. Hightower, Biggers, Lloyd, Biggers, Beasley & Ame-rine, Dallas, for appellee.
   ODEN, Justice.

The appellant, Robert Frank Hale, Jr., has perfected this appeal from the judgment entered in a divorce case. Appellee, Judy DeSanders Hale, does not complain of any ruling or action of the trial court.

The parties were married October 28, 1974. Appellee’s father died in February, 1975, and in November of that year she purchased a residence in Dallas County, Texas, with a portion of her inheritance. The residence was extensively improved during coverture with a resultant substantial enhancement in value. Appellant concedes that the residence was purchased and improved with appellee’s separate funds; however, he contends that the value of the residence was substantially enhanced by his labor, talents, contacts, influence and industry, and that appellee’s separate estate should reimburse their community estate for the amount of the enhanced value attributable to his efforts. Appellant testified that he had expertise and experience in construction and construction related fields; he made $7.21 per hour as an employee for a construction and construction related firm; he was absent 320 hours from his job while assisting appellee in the remodeling of the residence; he expended a total of 350 hours on the remodeling project; a substantial saving was realized on the total cost of the remodeling due to his efforts, talents, and construction business contacts; and no community funds were used in purchasing or improving the residence. Appellee testified, in effect, that the value of the residence was not enhanced as a result of appellant’s endeavors. The court, sitting without a jury, ordered that appellant should recover $1,120.00 from appellee. The record does not reflect the basis for this award, but in any event appellee did not file a cross-appeal.

The issue to be decided on appeal is whether or not a spouse who contributes community labor, talents, and industry to enhance the value of the other spouse’s separate estate should be reimbursed for his community share of the enhanced value even though no community funds were used in payment of the costs of the improvements. We think not. In Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935), it was held that:

“. . where a spouse improves his or her separate property with the funds belonging to the community estate, the other spouse, or his or her heirs, would be entitled to reimbursement out of his or her separate property, to the extent of their share of the community funds so used, and that their claim for such reimbursement is in the nature of a charge upon, the property so improved.”

This proposition of law has become one well recognized by later decisions. See Lindsay v. dayman, 151 Tex. 593, 254 S.W.2d 777 (1952), and Burton v. Bell, 380 S.W.2d 561 (Tex.1964). Appellant concedes that no community funds were used in improving appellee’s separate property. Since no community funds were used in improving ap-pellee’s separate estate, the community estate of the parties is not entitled to any reimbursement.

In cases where the community estate is entitled to be reimbursed for community funds used to improve one spouse’s separate estate, the amount of recovery is limited to the amount of enhancement of the property at the time of partition by virtue of the improvements placed thereon. Dakan v. Dakan, supra. The claim against a separate estate for reimbursement to the community estate of the parties is the lesser of the community funds expended in improving the separate estate or the amount of the enhancement of the property at the time of partition by virtue of the improvements placed thereon. The value of community labors is taken into account in ascertaining the amount of the enhancement of the property but is not considered a cost of improvement. Since no community funds were used in improving appellee’s separate estate, the amount of enhancement to her separate estate resulting from appellant’s community labor is immaterial.

Appellant cites Norris v. Vaughn, 278 S.W.2d 582 (Tex.Civ.App. Amarillo 1955, no writ), as authority for his contention that appellee’s separate estate should reimburse their community estate for the value of his community efforts expended in improving appellee’s separate property. This case is readily distinguishable in that the reasonable compensation awarded appellee therein was for services performed after the community estate had been dissolved by death. The relief awarded was in favor of one co-tenant against another co-tenant and not based upon any rule of law relating to the relationship of husband and wife.

The trial court would not permit appellant to give his opinion of the amount ap-pellee’s separate property was enhanced by reason of his community labors. As stated, the evidence would be immaterial. In any event, the $1,120.00 awarded appellant by the trial court was $1,120.00 more than the community funds ($0.00) expended in improving appellee’s separate estate and no harm has resulted to appellant by reason of the testimony being excluded. Girard v. Girard, 521 S.W.2d 714 (Tex.Civ.App. Houston-lst Dist. 1975 no writ).

The decision of the trial court will be affirmed.


author: CLAYTON, Justice.

text:
    Leon ALCORN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    Rehearing Denied Dec. 9, 1977.
    Jack Emory Farley, Public Defender, Kevin M. McNally, Frankfort, and M. Gail Robinson, Asst. Public Defenders, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

On August 30, 1976, Leon Alcorn, the appellant herein, was convicted in the Fa-yette Circuit Court of first-degree sodomy, of third-degree assault, and of being a third-time felony offender. Cf. KRS 510.-070, 508.030 and 532.080(2). He was sentenced to terms of 12 months, 10 years and 50 years’ imprisonment, respectively, the penalty for the assault conviction to run concurrently with the persistent felony offender penalty, which, pursuant to KRS 532.080(1), was imposed in lieu of the sodomy sentence.

The chain of events which culminated in appellant’s assault and sodomy convictions occurred during May 1976 in the Fayette County jail, where appellant was serving time for a prior felony conviction. The evidence presented by the Commonwealth established that during the day in question, appellant approached a fellow inmate, Bobby Joe Ousley, about engaging in sex with appellant. Ousley rejected this initial proposal, and persistently resisted similar sexual advances by appellant throughout the day. Finally, around eight o’clock in the evening, appellant went to Ousley’s cell and told Ousley to come outside; when Ousley did so, appellant began hitting him and knocked him to the floor of his cell. Ous-ley’s attempts to pull himself underneath a bunk for protection were futile, as appellant kicked him in the face, chest, and back, breaking his eardrum, bruising his ribs, and blackening both of his eyes.

Appellant eventually stopped this barrage and threatened Ousley that if he refused to have sex with appellant he would get another beating. Upon appellant’s insistence, Ousley then took his mattress from the cell in which he had been staying with three other prisoners and moved into a back cell with appellant and another inmate, who was ill. Appellant and Ousley talked for almost two hours, at which time guards came by and locked the prisoners into the cells. Shortly thereafter, as Ousley lay on a bed, appellant pulled Ousley’s pants off, rolled him onto his stomach, and engaged in anal intercourse with him. Although he did not wish to engage in such an act, Ousley submitted without a struggle because of his fear of appellant and because he had been incapacitated by the injuries he had received earlier in the evening.

Approximately 30 minutes to an hour later, Lt. Comdr. Clayton Warner came by the cell during a check on the sick prisoner and noticed Ousley’s battered and bruised condition. Warner sent Ousley to the University of Kentucky Medical Center, wherev his wounds were treated and a rectal smear was taken. A subsequent analysis of the smear indicated a high sperm cell count.

Following the rendering by the jury of guilty verdicts on the assault and sodomy charges, the persistent felony offender portion of the bifurcated trial took place. During this proceeding, the prosecution established that appellant had previously been convicted of storehouse breaking and receiving stolen property, both felony offenses.

Appellant in his defense admitted fighting with Ousley, but completely denied participating in sex, attempting instead to show that Ousley had fabricated the story about the rape in order that he might sue the prison and recover money damages. He in no way contested the evidence offered by the Commonwealth during the persistent felony offender proceeding regarding his prior felony convictions.

Appellant now prosecutes this appeal, presenting seven assignments of error in his well-argued brief. Appellant first argues that the court below erred by permitting Tipp Earls Jr., one of appellant’s cellmates at the time of the incident in question, to testify over defense counsel’s objection that Ousley “didn’t actually want to go” to appellant’s cell after the fight. Appellant asserts this statement should not have been admitted into evidence because it was a mere conclusion outside the realm of Earls’ knowledge, and further asserts it greatly prejudiced appellant, since it supported Ousley’s testimony that he did not go to appellant’s cell willingly.

Although we express some doubt, in light of the context in which this statement arose, that Earls’ statement was anything more than an observation on Earls’ part that Ousley appeared hesitant to go to appellant’s cell, we need not belabor this point. For it is our conclusion that even if the admission of this statement into evidence was error, it does not warrant a reversal of appellant’s conviction, since we do not believe the result would have been any different in the absence of this statement.

Appellant next argues that he was prejudiced when the trial court admitted into evidence the statement of Irving Corn-ley, another of appellant’s cellmates, that although he had not himself seen what occurred between appellant and Ousley in the back cell, he afterwards heard appellant and Stanley Murphy, the sick inmate, “boasting and bragging about it.” Although admitting that Comley’s remark concerning appellant’s own boasts was admissible under the exception to the hearsay rule regarding admissions by a party, appellant contends that Comley’s comment with respect to the boasts of Murphy was inadmissible as hearsay. We agree that this statement should not have been admitted into evidence, but decline appellant’s invitation to overturn his conviction on this ground, as we do not believe this remark could have significantly affected the jury’s determination of guilt.

Appellant’s third assignment of error presents an interesting question in connection with the presentencing procedures embodied in KRS 532.050, which provides in pertinent part:

(1) No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a pre-sentence investigation after conviction and giving due consideration to a written report of such investigation.
(4) Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusion of any presentence investigation or psychiatric examination and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed.

It will be remembered that just this year we held that under this statute a trial judge has no discretion in determining whether or not a presentencing report will be requested, obtained or considered; that a strict adherence by the trial court to the requirements of the statute is in fact a “prerequisite to the entry of a valid judgment.” Brewer v. Commonwealth, Ky., 550 S.W.2d 474, 476 (1977). We are called upon today to determine whether a defendant may waive these procedures and, if he may, whether such a waiver must be understanding^ made.

Both appellant and the Commonwealth agree that the presentencing procedures set forth by the statute may be waived by a criminal defendant, and we concur. The requirements of KRS 532.050 were established primarily for the benefit of the accused, and he should be allowed to forego those procedures if he so chooses.

In the instant case, the waiver by appellant occurred during the following course of events. Immediately after the return of the jury’s verdict at the close of the persistent felony portion of appellant’s bifurcated trial, the trial judge indicated that entry of judgment should be postponed pending a presentence investigation. The following discussion then ensued among appellant, his trial counsel, and the court:

[DEFENSE COUNSEL]: Your Honor, the defendant has indicated he would like to waive the sentencing hearing.
THE COURT: Do you want to do that, Mr. Alcorn?
MR. ALCORN: Yes, sir, buddy.
THE COURT: You want to be sentenced today?
MR. ALCORN: Yes, sir. Hey, can I ask you something right quick?
THE COURT: Yes.
MR. ALCORN: Like, you know like I have been over there 12 months and I aint had no luck at all. Could you have me in the penitentiary before Thursday? THE COURT: That would be up to the Sheriff, Mr. Alcorn. I will do my best. [T. E., p. 148]

Appellant asserts that this waiver was invalid because he was not aware of his right to full compliance with the presen-tencing directives of the statute; in so doing, appellant urges this court to adopt an “understanding waiver” rule. Because we are of the opinion that the waiver by appellant was in fact understandingly made, we deem it unnecessary to pass on this question at this time.

The alleged errors which form the bases for appellant’s arguments I, IV, V and VII, and most of argument II, were not properly preserved for appellate review. Cf. RCr 9.22. As we are convinced, after examining each of these arguments on its face, that the errors alleged therein either were not errors at all or, if they were errors, were not unduly prejudicial to appellant, we choose not to review these assignments of error under our manifest injustice standard.

The judgment is affirmed.

All concur.

      . The statement of which appellant now complains was elicited by the prosecutor during the following colloquy with the witness:
      D34 I believe you stated that Ousley came back and got his mattress. Is that correct? A Right.
      D35 Now, at the time he came back to get his mattress, did he appear to be frightened? A Well, in a way he was, yes.
      D36 What do you mean, “in a way?”
      A Well, the way he come in there, he was all white and shaky and he said that he didn’t have no help in there, that he had to go back there.
      D37 Did he appear to want to go back to the other cell?
      A No, he didn’t actually want to. [T. E., pp. 42-43]


author: FINCH, Judge. HENLEY, Judge,

text:
    R. J. HASWELL, Respondent, v. LIBERTY MUTUAL INSURANCE COMPANY, and Liberty Mutual Fire Insurance Company, Appellants.
    No. 59267.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1977.

      Russell G. Clark, Springfield, for appellants.
    Lincoln J. Knauer, Jr., Springfield, Thomas G. Strong and Mathew W. Placzek, Jr., on rehearing, Springfield, for respondent.
   FINCH, Judge.

This is an action for wrongful initiation of a civil action against the plaintiff herein. The jury returned a verdict against both defendants for $25,000 actual damages, plus $75,000 punitive damages against Liberty Mutual Insurance Company and $25,000 punitive damages against Liberty Mutual Fire Insurance Company. On appeal by defendants to the Court of Appeals, Springfield District, the court affirmed. The case was ordered transferred to this court which then adopted an opinion which reversed and remanded for new trial. Subsequently, plaintiff’s motion for rehearing was sustained and additional briefing was requested. We now affirm. In this opinion we utilize without quotation marks portions of the opinion of the court of appeals and the prior opinion in this court.

On appeal defendants attack the sufficiency of the evidence to support the verdict and judgment in certain particulars hereinafter discussed, allege various trial errors and contend that the verdict was excessive.

Defendants were authorized to write casualty, property, fire and marine-type insurance as well as bonds. They are described as “direct writers,” i. e., companies which write insurance or bonds only through their own employee-agents rather than through general agents, brokers or others who may be licensed to write for or broker insurance business for other companies. Prior to 1963, one Don W. Kinder was a licensed agent of defendant companies in St. Louis. In 1963 he became their resident representative in Springfield, Missouri. Under various writings agreed to by Kinder, he was bound to devote full time to defendants’ business. He was not to act as an intermediary for a policyholder or prospect with another company or indirectly place insurance in another company through some other broker or agent nor was he to accept remuneration of any type for any such referrals or services. Although it was common knowledge in the insurance world that defendant companies were “direct writers,” the foregoing agreements between Kinder and defendants and the restrictions placed on Kinder by such agreements were kept in Kinder’s personal file by defendants, were kept confidential and were not generally known by general agents, brokers or others in the insurance business.

In order to retain the good will of policyholders or prospects requiring coverage on risks undesirable to or not insured against by defendants, it sometimes became advisable for defendants’ agents to assist those persons in procuring coverage with other companies. In such event Kinder could perform that service only with defendants’ full knowledge and consent. If granted, Kinder was not permitted to receive any commissions, gifts or other compensation for such services. When he was in St. Louis, Kinder did have permission to solicit boiler insurance which was placed in the Mutual Boiler Company under a corporate agreement between that company and defendants. However, that agreement did not apply to Springfield and no comparable agreement existed between defendants and any company or broker in Springfield.

In 1963 Kinder met plaintiff who then was employed by an insurance agency-broker in Springfield. Kinder told plaintiff of the arrangements defendants had in St. Louis for brokerage services and inquired whether plaintiff would help him with similar problems in the Springfield area. Plaintiff agreed and thereafter assisted Kinder in securing coverage which Kinder said the defendants could not or would not write. When plaintiff could not provide the desired coverage, he sought assistance from other brokers or agents.

In January 1967 plaintiff started his own insurance business. He was a licensed broker and was agent for several companies which accepted regular and specialized risks. He continued on request to assist Kinder in securing coverage. He did the same for other agents and by October 1967 he was placing business for about 35 other agents. This increased to some 100 agents by January 1969. This placement of business for other agents became very time consuming because an agent who is not a broker may not solicit business to be placed in another company by which he is not licensed. Consequently, it was necessary for plaintiff personally to contact all prospective policyholders referred to him by Kinder. The same was true in the case of other agents who asked him to place business for them. As plaintiff’s business increased, he did not have the time to make all of these personal contacts. Therefore, plaintiff began to assist these agents, including Kinder, to obtain licenses as agents for companies which plaintiff represented. That permitted them to deal directly with prospective policyholders and they could receive 50 per cent of the commission on policies written. This lessened plaintiff’s workload in connection with insurance written for Kinder and other agents but also decreased the amounts he received as commission on those policies. After this change occurred, Kinder dealt primarily with plaintiff’s secretary rather than with plaintiff.

In June 1968 defendants’ district manager became concerned about sales through Kinder’s office because defendants’ business was down some $80,000 from the previous year. He was advised by an agent for defendants in the Kansas City area that Kinder had been placing business with plaintiff’s agency. No inquiry was made of plaintiff and, apparently, the manager and other personnel employed by or representing defendants neglected to discover that Kinder also was placing business with agencies other than plaintiff’s. The manager also ascertained from the Missouri Division of Insurance that Kinder had become licensed with several other companies.

On August 13, 1968, the defendants’ district manager and his superior confronted Kinder with what they had learned. He readily admitted that he had violated his contract with defendants. He was terminated on the spot and he then delivered defendants’ records to the district manager pursuant to his contract.

Apprehensive of what Kinder might do subsequent to being fired, the district manager requested that defendants’ resident claims adjuster in Springfield keep watch as to Kinder’s activities. After developments which will be detailed subsequently, defendants filed suit against Kinder and plaintiff on October 23,1968. Counts I and II sought to enjoin Kinder from engaging in the insurance business in violation of his contract with defendants and to recover damages from him for breach of contract. Counts III and IV were against both Kinder and plaintiff herein. Count III alleged that the two of them had conspired together to use confidential information relating to defendants’ business and to divert business from defendants to other companies. The petition alleged that in furtherance of the conspiracy, licenses for Kinder were secured with other companies competing with defendants and that business was placed with those companies to the detriment of defendants. The petition also alleged that Kinder and plaintiff misrepresented the nature and quality of defendants’ policies. Count IV sought to enjoin Kinder and plaintiff from continuing to do the acts of which they were accused in Count III.

Defendants’ suit for damages and injunc-tive relief against plaintiff herein was dismissed without prejudice by defendants on October 16,1970. Thereafter, on December 23, 1970, this suit was filed.

Before Kinder was fired in August 1968 he shared an office with defendants’ local claim adjuster and a secretary employed by defendants. Neither of these people knew the contents of the agreements between defendants and Kinder, and the claim adjuster acknowledged that he was under the impression that it was proper for Kinder, under certain circumstances, to place business through another company if defendants did not want it. The adjuster and secretary knew Kinder was selling life insurance for another company, and were aware that Kinder discussed casualty insurance placement with agents other than plaintiff. The assumption by defendants in filing suit that plaintiff necessarily knew of the limitations on Kinder’s authority because he worked for a direct-writing company was inconsistent with these beliefs and impressions of their own employees in the office with Kinder.

Plaintiff testified in this trial that although he knew Kinder’s employers (defendants) were direct-writing companies, he was never informed of and was unaware of Kinder’s contractual obligations to defendants, that he did not know that Kinder was violating his contract in dealing with plaintiff or other agents and brokers and that he did not know that Kinder was not permitted by defendants to become an agent for other insurance companies. There was considerable emphasis in the testimony of the open, nonsecretive dealings that Kinder had with plaintiff and with several other agencies.

Plaintiff also testified that in August 1968 Kinder told him that he [Kinder] was no longer associated with defendants because defendants had not lived up to their agreement and objected to Kinder holding licenses with other companies. Kinder indicated he would open his own agency and continue to sell life insurance through another company and casualty insurance through plaintiff. At Kinder’s request, plaintiff gave him permission to give his prospects plaintiff’s telephone number and to use plaintiff’s office stationery as he had allowed other agents to do in similar circumstances. As a temporary measure, Kinder was given the use of a work table near plaintiff’s desk when he was infrequently in plaintiff’s office. Kinder told plaintiff that he could usually be reached at the office of the life insurance company for whom he was selling insurance. Under this arrangement Kinder was to do his own paper work, contact the companies directly, etc., and the commissions were to be split 60% for Kinder and 40% for plaintiff. Plaintiff did not instruct Kinder where to go or whom to see. In addition, plaintiff testified that Kinder was not paid a salary by him and was not his employee.

In regard to business defendants allegedly lost as a result of the conspiracy, an exhibit introduced by plaintiff disclosed that from January through July 1968, 29 of defendants’ previous policyholders had their insurance rewritten through other companies during that period. Of the 29 lost, only 5 (or possibly 7) were written by companies represented by plaintiff. The 29 policies represented a premium dollar loss to defendants in excess of $100,000; however, $85,000 to $99,000 of this premium loss represented policies which were not placed through plaintiff’s agency.

Plaintiff testified that 4,500 policies went though his brokerage department yearly, of which he would probably see only 500. When he was questioned at the trial regarding policies on his books that had previously been written by defendants, plaintiff stated that he had not known they were in the office until he was preparing answers to interrogatories propounded in the present suit. Plaintiff did state that when it came to his attention that Kinder was changing policyholders from defendants’ companies to an insurer represented by plaintiff, Kinder upon inquiry would explain that these were risks which defendants had cancelled or did not want or could not match in premiums.

Defendants’ investigation before suit was filed against plaintiff and Kinder for conspiracy did not disclose that plaintiff had access to or had used the intimate and confidential knowledge of defendants’ trade practices, customers, connections, insurance policyholders, or policy expiration dates. Likewise, defendants had no evidence that plaintiff had ever misrepresented the nature and quality of any of defendants’ policies of insurance to defendants’ existing or potential policyholders. Defendants did not interview plaintiff or any of his employees and they made no investigation of plaintiff’s reputation before bringing suit for conspiracy, although there was considerable testimony at trial to indicate that plaintiff’s reputation in the business world and otherwise was excellent.

Defendants’ first contention on appeal is that there was insufficient evidence to show that they acted without probable cause in initiating the suit for conspiracy against plaintiff Haswell and that the trial court should have sustained their motion for a directed verdict on that basis. In resolving this question we follow the general rule that since the verdict and judgment in this case were in favor of plaintiff, we examine the evidence in the light most favorable to plaintiff, giving plaintiff the benefit of all reasonable inferences therefrom. Bearing in mind that establishment of want of probable cause involves proving a negative, slight proof thereof is all that is required to make a prima facie case. Hughes v. Aetna Ins., Co., 261 S.W.2d 942, 945 (Mo.1958). We also recognize that while dismissal of defendants’ action against plaintiff was some evidence of a lack of probable cause, that alone is not sufficient basis for a conclusion of a lack of probable cause. Jones v. Phillips Petroleum Co., 186 S.W.2d 868, 875 (Mo. App.1945).

Probable cause for the initiation of a criminal prosecution“is reasonable cause and may be defined as the existence of such a state of facts as would warrant an ordinarily cautious and prudent man in the belief that the accused was guilty of the offense charged.” Higgins v. Knickmeyer-Fleer Realty & Investment Co., 335 Mo. 1010, 74 S.W.2d 805, 813 (1934). However, guilt or innocence of a criminal offense is not involved in a civil case and for that reason the test of probable cause for initiation of a civil action has been stated somewhat differently. In Hughes v. Aetna Ins. Co., supra, the court said, 261 S.W.2d at 949:

“ ‘With the necessary changes in points of detail, the same principles determine questions of probable cause in civil proceedings as in criminal.’ Wilcox v. Gilmore, 320 Mo. 980, 986, 8 S.W.2d 961, 962. At the same local citation it is said: ‘Probable cause “consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation.” ’ ”

The same definition is stated in Woods v. Standard Personal Loan Plan, Inc., 420 S.W.2d 380, 384 (Mo.App.1967) and Young v. Jack Boring’s, Inc., 540 S.W.2d 887, 895 (Mo.App.1976). In Restatement (Second) of Torts, § 675 (1977), the definition is amplified by adding to the requirement that there be a reasonable belief in the existence of the facts upon which the claim is based the additional requisite that he “correctly or reasonably believes that under such facts the claim may be valid under the applicable law.” We have concluded that this enlargement of the definition clarifies and more accurately states that which is necessary to the existence of probable cause. Thus, it can be said that probable cause for initiating a civil action consists of a belief in the facts alleged, based on sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus a reasonable belief by such person that under such facts the claim may be valid under the applicable law.

In contending that the trial court should have directed a verdict on the basis that the evidence did not show lack of probable cause for initiating suit, defendants argue that except for the question of whether plaintiff had actual knowledge of the terms and conditions of Kinder’s contractual arrangements with defendant companies, there was no real variance or dispute between the facts on which defendants and their attorney relied in deciding to commence the suit against Haswell and the facts as disclosed by the evidence in the case. On that basis they urge that it was purely a question of law for the court as to whether probable cause existed, citing Dodson v. MFA Insurance Co., 509 S.W.2d 461, 467 (Mo.1974); McFarland v. Union Finance Co., 471 S.W.2d 497 (Mo.App.1971); and Woods v. Standard Personal Loan Plan, Inc., 420 S.W.2d 380 (Mo.App.1967), and that a verdict in their favor should have been directed.

We do not agree. The transcript reveals numerous disputed factual issues which the court was required to submit to the jury for determination. In the first place there was, as defendants concede, a dispute as to whether the evidence established knowledge by plaintiff of Kinder’s obligations under his contracts with defendants. Defendants did not check to ascertain factually whether plaintiff knew that under Kinder’s contract he was prohibited from becoming an agent for other companies or that absent express approval he could not seek to place business elsewhere if not available from defendants. They did not interview plaintiff or any of his employees. They simply assumed that plaintiff knew of those secret restrictions, contending that the nature of defendants as direct-writing companies brought home that knowledge. On the other hand, plaintiff testified that he didn’t know of such restrictions. There also was evidence that others didn’t know thereof and believed that under some circumstances Kinder could place insurance elsewhere. Employees in defendants’ office in Springfield so believed.

There also was a dispute as to the sufficiency of the investigation by defendants prior to bringing suit and whether further investigation would have indicated that plaintiff had not conspired with Kinder to improperly and illegally divert business from defendants to other insurance companies. The rule is that “[t]he defendant in a malicious prosecution action ‘is to be held responsible, not only for the facts he knew when he caused the suit to be instituted but also for all other facts pertinent to the suit which he could have ascertained by due diligence prior to causing the law to be put in motion.’ McAnamey v. Commonwealth Loan Co., Mo.App., 208 S.W.2d 480, 486, citing LaChance v. National Pigments & Chemical Co., Mo.App., 104 S.W.2d 693; Jones v. Phillips Petroleum Co., Mo.App., 186 S.W.2d 868. This is but another way of saying defendants in such cases are responsible for facts they could have known by reasonable inquiry. Randol v. Kline’s, Inc., 322 Mo. 746, 18 S.W.2d 500.” Hughes v. Aetna Ins. Co., 261 S.W.2d 942, 949-950 (Mo.1953). Accord, Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479, 483 (Mo. 1972).

The evidence disclosed that at the time Kinder was placing insurance business with plaintiff, he also was placing business with other agencies in Springfield. It also indicated that of the policies lost by defendants during a period prior to termination of Kinder, a very substantial number of the policies, both as regards number and premium, were not placed through plaintiff’s agency. However, defendants did not investigate sufficiently to learn of these facts prior to filing the conspiracy suit against plaintiff.

The evidence also disclosed that Kinder helped license 35 agents in addition to Kinder, this having been done to enable them to place business with those companies and relieve plaintiff of the necessity of contacting all of those prospective insureds personally. Defendants did not investigate sufficiently to ascertain this fact. Neither did they check to see whether Kinder had been licensed in companies other than those represented by plaintiff in which plaintiff assisted him in securing licenses, although information as to such licensing was available in the office of the Division of Insurance in Jefferson City.

Defendants’ petition seeking recovery against plaintiff for conspiracy with Kinder alleged that they had conspired to misrepresent the nature and quality of defendants’ insurance policies but they did not investigate to ascertain whether misrepresentations had been made and they had no evidence when suit was filed of any such misrepresentations.

There was also evidence that defendants made no investigation as to plaintiff’s reputation in the insurance community or in Springfield and the surrounding area generally prior to suing him for conspiracy, alleging that he and Kinder engaged in an “illegal, unlawful and malicious conspiracy.” The evidence disclosed that plaintiff’s reputation in the business community and otherwise was excellent.

Under the test of Hughes quoted above, defendants were chargeable with knowledge of the facts above only to the extent they could have been ascertained by reasonable inquiry. What would constitute a reasonable inquiry under the circumstances of this case was a matter clearly within the jury’s province to determine.

In view of the foregoing we hold that the issue of probable cause was one for resolution by the jury pursuant to instructions from the court on that issue.

In addition to contending that their motion for directed verdict should have been sustained on the basis that lack of probable cause was not established, defendants also contend that said motion should have been sustained for the reason that the evidence failed to establish that they had acted maliciously in instituting the suit against Haswell. We find no merit in this contention. The rule in Missouri is that “[wjhere want of probable cause is shown, malice may be inferred by the jury. Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650; Randol v. Kline's, Inc., 332 Mo. 746, 18 S.W.2d 500.” Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479, 483 (Mo.1972). Hence, the issue of whether the evidence established that the defendants acted maliciously was for the jury to decide.

In this case, in addition to the evidence previously recited which was relevant both to whether there was probable cause and whether defendants acted maliciously in filing suit against plaintiff, there was additional evidence which the jury could consider on the issue of malice. It consisted of a letter from one of defendants’ local counsel to defendants’ branch manager in Kansas City and their assistant counsel in Boston with reference to the suit against Has-well and Kinder which stated, in part, as follows: “Count III * * * is stated in conspiracy for the purpose of being able to introduce evidence with respect to [Kinder and plaintiff] against the other * * * which probably would not be possible if the count was stated solely on substantive basis. * * * You will also note that we have requested an accounting from the date when Kinder first came to Springfield for [defendants] rather than from the date on which he first became licensed as an agent for other companies. The reason for this is primarily to harass both [Kinder and plaintiff] who may be quite unhappy in having to make an accounting for a longer period, especially since this might reveal information which they would rather the Internal Revenue Service wouldn’t have.” Clearly, a submissible case on malice was made.

Defendants made no assignment in their original brief on appeal that malice is not an appropriate constituent element of an action for wrongful initiation of a civil action. They contended only that the evidence was insufficient to make a submissi-ble case on the question of malice. However, in our consideration of this appeal the question has arisen as to whether in such actions we should substitute for a finding of malice a requirement that the jury find that the proceedings were “initiated primarily for a purpose other than securing the adjudication of the claim on which they are based.” This is the language employed in Restatement (Second) of Torts, § 676 (1977). See also § 674 which makes this same substitution.

Our earlier opinion proposed to adopt these (and other) sections of the Restatement. However, upon reconsideration we have concluded that such action would be inappropriate. We believe the theory of the malicious prosecution cause of action as developed in our decisional law is sound. Thus, the only reason to adopt the Restatement’s substitution for our element of malice would be for the purpose of more clearly presenting the issue to the jury. Although we believe that the Restatement language may embody our decisional law on the subject, it would appear that the pertinent sections and the comments thereto could also be interpreted as a departure from our previous interpretation of the element of malice. This would create a potential for confusion whereas the current definition of malice contained in MAI 16.01 already fully and clearly presents this element to the jury. We therefore decline to adopt the Restatement formulation in this area.

Next, defendants urge that the trial court should have directed a verdict for them on the basis that they relied in good faith on advice of counsel in filing suit against Haswell and Kinder. Good faith reliance on advice of counsel in commencing judicial proceedings against another is a defense to an action for malicious prosecution or wrongful initiation of a civil action if there has been full disclosure by the client to his attorney of all material facts, including those within client’s actual knowledge and those of which he might have learned by reasonable diligence. However, it is an affirmative defense on which defendant has the burden of proof. Huffstut-ler v. Coates, 335 S.W.2d 70, 80 (Mo.1960); Hughes v. Aetna Ins. Co., supra, 261 S.W.2d at 951. See also Webb v. Byrd, 203 Mo. App. 589, 219 S.W. 683 (1920). The evidence adduced at trial was reasonably susceptible of the inference that in several particulars defendants had not fully and truthfully advised counsel of all the facts they had or which were readily available to them. Thus, the trial court acted correctly in this case in submitting this issue to the jury pursuant to an instruction which told them that they must find for defendants if they found that defendants had made the required disclosure and in good faith acted thereon.

An additional claim of error asserted by defendants is that the trial court erred in admitting evidence of attorneys’ fees paid as a result of the original suit by defendants against plaintiff. Defendants do not dispute the proposition that attorneys’ fees incurred in defense of the first suit are a proper item of recovery in an action seeking recovery for wrongful initiation of that earlier suit. However, such fees are recoverable only to the extent of their reasonable value, Dailey v. Stout, 353 S.W.2d 833 (Mo.App.1962); 25 C.J.S. Damages § 91(2), and defendants contend that plaintiff offered no evidence that the fee was reasonable.

Defendants liken this case to those concerning medical expenses where our courts have generally held that in order to recover for medical expenses incurred there must be substantial evidence that such expenses were reasonable and necessary. However, the cases cited properly recognize that such proof may be made by inference from the circumstances, and that payment of a bill for such services should properly be considered some substantial evidence of the reasonableness of the charge. Myers v. Karchmer, 313 S.W.2d 697 (Mo. 1958); Wise v. Towse, 366 S.W.2d 506, 508 (Mo.App.1963); Hay v. Ham, 364 S.W.2d 119 (Mo.App.1962). The rationale of these rulings is plain. Where no evidence of collusion or bad faith appears, the court and the jury are entitled to presume and ascribe honest motives, good faith and right conduct in the preparation and submission of the bill. Hay, supra, citing Cordray v. City of Brookfield, 88 S.W.2d 161 (Mo.1935). Based upon the common experience of everyday life, the jury may infer that people do not pay bills where the reasonableness of the charge is disputed. This rationale would appear to be particularly applicable in situations such as the case before us. There could be no clear expectation of recovering the amount paid because such recovery is entirely contingent on the outcome of the second suit. Thus, the likelihood of collusion is remote. We therefore hold that sufficient evidence of reasonableness was presented here. Of course, if the reasonableness of the amount charged is disputed, the defendant remains free to attack the reasonableness of the charge by evidence, argument or both.

Defendants next allege that the trial court erred in permitting plaintiff’s counsel, during closing argument, to submit a mathematical formula to the jury in regard to punitive damages. The argument noted that the $200,000 prayed in punitive damages was approximately l/100th of one percent of the defendants’ assets (which had been received in evidence). Counsel further remarked that this amount was comparable to imposing a fine of $10 on a man with $100,000 in assets. Defendants’ objection was that this was comparable to a “per diem” argument which would cause the jury to believe they had a guideline to follow in assessing damages.

We do not agree. Taken in its context, the argument was merely a calculation based on the evidence which the jury could have made for themselves. It did not instruct the jury as to any fixed guideline but rather was a more broadly based appeal to the jury to consider what amount would effectively punish the defendants and deter them and others from like conduct. This is precisely what the jury was instructed to consider if it determined that punitive damages were appropriate. In any event, the defendants have not shown that this argument prejudiced the jury against them in light of the fact that the jury assessed only half the sum prayed by plaintiff as punitive damages. The point is overruled.

Defendants allege error in admitting evidence of loss of business suffered by plaintiff because plaintiff had agreed in a pretrial conference that loss of profits would not be an issue in the case. There is no transcript of the discussion in which this agreement was purportedly made and thus the point cannot properly be reviewed. Even if the pretrial agreement could be shown, the evidence of which defendants complain was admitted for a proper purpose —i. e., testimony by various businessmen that they had declined to deal with the plaintiff as this related to the emotional distress he suffered — and thus the proper remedy would have been a limiting instruction rather than the withdrawal instruction tendered by defendants.

The defendants further allege error in the trial court’s refusal to admit certain documents and other evidence which defendants claim was relevant to the issues of probable cause and malice. Counts I and II of the original suit were clearly irrelevant in that they contained no allegations against Haswell but rather were directed exclusively to assertions of misconduct on the part of Kinder. The findings of fact and conclusions of law issued by the trial court in the first suit were likewise irrelevant in this action because they were expressly limited to the relationship between Kinder and defendants and were void of any reference to Haswell.

Defendants’ argument that they were entitled to read amended Count III of the first suit into evidence because plaintiff introduced original Count III misperceives the theory of plaintiff’s cause of action. Originally, plaintiff’s petition alleged malicious prosecution by reason of the filing of both the original petition in the first suit and the amended petition. However, plaintiff amended his petition prior to trial and deleted all reference to the amended petition of the first suit. Thus, the case was tried on the theory that the cause of action accrued with the filing of the original petition and plaintiff was thereby damaged. The defendants’ amendment of Count III of the original suit was therefore irrelevant to any issue in this suit.

The trial court also refused to admit the deposition of Peter Lindsay, defendants’ employee, which was taken by counsel for Haswell in preparation for the original proceeding. The issues presented in the first suit were clearly quite different from those presented in the present case. Furthermore, defendants’ offer of this deposition was deficient in that the record does not reflect any offer of proof at the time the evidence was refused that Mr. Lindsay was unavailable at the time of trial as required by rule 57.07(b). We need not determine whether the subsequent comment of one of defendants’ witnesses that Mr. Lindsay was “in the State of Minnesota. I don’t know the exact location” would satisfy the rule’s requirement of competent evidence because we find no allegation in the record at the time of the offer that any evidence of unavailability would be offered. We find no error in excluding this evidence.

Defendants’ final contention is that the actual and punitive damages awarded were excessive. We have reviewed the transcript and have determined that there was sufficient evidence to support the jury’s award. Many of the elements of actual damages, such as the emotional and physical distress of the plaintiff, are not susceptible of calculation in a specific monetary amount. Nor can we say that the jury’s award of punitive damages was “so out of all proper proportion to the factors involved as to reveal improper motives or a clear absence of the honest exercise of judgment.” Beggs v. Universal C.I.T. Credit Corp., 409 S.W.2d 719, 724 (Mo.1966). Thus, we find no abuse of discretion by the trial court in declining to order a remittitur or a new trial.

Judgment affirmed.

MORGAN, C. J., and BARDGETT, RENDLEN and SEILER, JJ., concur.

HENLEY, J., dissents in separate dissenting opinion filed.

DONNELLY, J., dissents and concurs in separate dissenting opinion of HENLEY, J.

HENLEY, Judge,

dissenting.

I respectfully dissent.

I believe that in determining whether plaintiff made a submissible case on the issue of whether defendants had probable cause to initiate their civil suit against plaintiff and Kinder, the majority opinion overlooks matters that should be considered in an action for wrongful initiation of civil proceedings and applies the test applicable only to an action for malicious prosecution of criminal proceedings.

Matters or points of difference between the two types of proceedings that should have been considered in determining sub-missibility of this case are discussed in Comment d, § 675, Restatement, Torts 2d (1977) as follows:

“In one particular a private prosecutor’s reasonable belief in the guilt of the accused differs from the reasonable belief of one who initiates private civil proceedings against another. A private prosecutor does not have reasonable grounds for believing that the accused has conducted himself in a particular manner, if he merely entertains a suspicion even though he reasonably believes it may be verified upon further investigation. * * * On the other hand, when the proceedings are civil, while the person initiating them cannot have a reasonable belief in the existence of the facts on which the proceedings are based if he knows that the alleged facts are not true and his claim is based on false testimony, it is enough if their existence is not certain but he believes that he can establish their existence to the satisfaction of court and jury. In a word, the initiator of private civil proceedings need not have the same degree of certainty as to the relevant facts that is required of a private prosecutor of criminal proceedings. In many cases civil proceedings, to be effective, must be begun before all of the relevant facts can be ascertained to a reasonable degree of certainty. To put the initiator of civil proceedings to a greater risk of liability would put an undesirable burden upon those whose rights cannot be otherwise effectively enforced.”

I believe that the majority opinion requires of the initiator of private civil proceedings a much greater degree of certainty as to the relevant facts than is required by the Restatement. I agree with the Restatement.

For the reasons stated, I would hold that plaintiff failed to make a submissible case, would adopt Chapter 30, Restatement of the Law, Torts 2d, and would reverse the judgment and remand the case for retrial.

      . Kinder also agreed that all policy forms, manuals, expiration information, and other documents or records relating to defendants’ business were to remain defendants’ property and be used exclusively in defendants’ interest. Should his employment with defendants be terminated for any reason, Kinder contracted that for 18 months after termination he would not engage in the insurance business, other than life, within 25 miles of Springfield.

      . Although plaintiff could not share commissions with Kinder, he did occasionally buy Kinder a gift or a meal. This seemed to be a general practice in the insurance business in such situations.

      . In their petition the defendants alleged that in furtherance of the alleged conspiracy plaintiff participated in securing these licenses for Kinder. Actually, Kinder became licensed by 15 other companies but plaintiff had no part in securing 6 of those licenses. Apparently defendants did not make sufficient inquiry to ascertain this fact. At least, they did not recognize this fact in charging that licensing in other companies was arranged to divert business to companies represented by plaintiff.

      . The six elements necessary to make a sub-missible case for malicious prosecution (and wrongful initiation of civil proceedings) have been: (1) the commencement of a prosecution against plaintiff; (2) its legal causation by defendant; (3) its termination in favor of plaintiff; (4) the absence of probable cause therefor; (5) the presence of malice; and (6) damage to plaintiff therefrom. Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479, 483 (Mo.1972). On this appeal defendants question only whether plaintiff made sufficient proof as to items (4) and (5).

      . In Missouri the issue of probable cause is submitted to the jury, along with other issues to be resolved, in MAI 23.07, which is as follows:
      “Your verdict must be for the plaintiff if you believe:
      First, defendant instigated a judicial proceeding against the plaintiff which terminated in favor of plaintiff, and
      Second, in so doing defendant acted maliciously and without reasonable grounds, and Third, plaintiff was thereby damaged.”
      In drafting that instruction the committee substituted the words “reasonable grounds” for “probable cause.” No definition of “reasonable grounds” is included in MAI 23.07, nor do the notes on use call for a definition thereof. In Boquist v. Montgomery Ward & Co., Inc., 516 S.W.2d 769 (Mo.App.1974), defendant tendered an instruction which undertook to define “reasonable grounds.” The trial court refused the instruction and defendant on appeal sought reversal and remand on account of that refusal. The court of appeals discussed the question of whether “reasonable grounds” might need further definition and concluded that in a proper case the issue would require careful consideration. It held that in that particular case such consideration was not required because the tendered instruction clearly was bad.
      In this case defendants did not tender an instruction defining “reasonable grounds” and this question is not raised as an issue on this appeal. Hence, it is not before us for resolution.

      . “Instruction No. 5
      “Your verdict must be for defendants if you believe:
      “First, before commencing the judicial proceeding against the plaintiff, defendants consulted in good faith with an attorney learned in the law, and
      “Second, defendants, through their agents, communicated to such attorney, in good faith, all the facts within their knowledge, or which they might have learned by reasonable diligence, upon the merits of such judicial proceeding as were made in said judicial proceeding against plaintiff, and
      “Third, defendants’ consultation and communication with said attorney was in good faith, with a view to seeking the advice of said attorney, and
      “Fourth, that said attorney, upon the submission of said facts, advised defendants that they had the legal right to the relief sought in the defendants’ judicial proceeding against the plaintiff, and
      “Fifth, that the judicial proceeding by defendants against plaintiff were begun and carried on pursuant to the legal advice of said attorney, in good faith, and not in pursuance of a previous fixed determination to commence such judicial proceeding.”

      . Other jurisdictions passing on this precise issue have held that payment of attorneys’ fees in a malicious prosecution action by the plaintiff is prima facie evidence of the reasonableness of said fees. Barlin v. Barlin, 156 Cal. App.2d 143, 319 P.2d 87 (1957); Drumm v. Cassnum, 61 Kan. 467, 59 P. 1078 (1900).


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    The FIRST NATIONAL BANK OF KANSAS CITY, Trustee, Plaintiff, v. Frances Suzanne Duke WHEELER, Defendant-Respondent, and The Unknown and Unborn Issue of Frances Suzanne Duke Wheeler, William Richard Scott, Suzanne Frances Scott, the Unknown and Unborn Issue of Frances Suzanne Duke Wheeler other than children, Defendants-Appellants.
    No. KCD 28589.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Rehearing Denied Nov. 7, 1977.

      David M. Claycomb, James, Odegard & Millert, Jesse L. Childers, Kansas City, for defendants-appellants.
    William L. Turner, Eugene C. Hall, Michael J. Gallagher, Gage & Tucker, Kansas City, for defendant-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Action by First National Bank for declaratory judgment determining, inter alia, whether an instrument, purporting to be a trust indenture purportedly executed by defendant Frances Suzanne Duke Scott (Wheeler) created a trust with plaintiff as trustee of her interest, as remainderman, in the assets of H. B. Duke testamentary trust. Appeal from summary judgment which declared that such purported trust failed, and ordered that the assets of the H. B. Duke trust attributable to defendant Wheeler be paid to her outright, free and clear of trusts, subject to attorneys’ fees and expenses, for the period ending September 30, 1975, and as may be allowed for further services. The dispositive question is whether the purported trust failed for want of acceptance by the trustee. Affirmed.

H. B. Duke died in 1935. His will appointed the First National Bank of Kansas City trustee of a testamentary trust which provided a life estate to Frances T. Duke, his daughter-in-law and mother of Frances Suzanne Duke Wheeler, and that at the death of Frances T. Duke the corpus was to be distributed to the grandchildren of H. B. Duke, Frances Suzanne Duke (Wheeler), and her brother, Henry Basil Duke.

Frances T. Duke died in November, 1974, and Frances Suzanne Duke Wheeler, as one of the two grandchildren of H. B. Duke, became entitled under the will of H. B. Duke to receive one half of the trust corpus in possession of his trustee, the First National Bank.

On July 31, 1959, Frances Suzanne Duke Wheeler, then Frances Suzanne Scott, signed a 7-page document entitled “Trust Indenture,” which recited it was made “by and between” herself as settlor and the First National Bank as trustee. After further recitals that she was a remainderman in two separate trusts established by her grandfather, H. B. Duke, and that she desired “to establish an irrevocable trust to consist of any and all property which she may become entitled to receive upon the termination” of those trusts, the instrument provided in part:

“NOW, THEREFORE, in consideration of the premises, of the acceptance of this trust by the Trustee and of the promise of the Trustee to hold the trust estate and perform the duties of the Trustee hereinafter set forth, the settlor does hereby transfer * * * all property which she may become entitled to receive upon the termination of the trust * * of her grandfather * * *

The subscribing signature of Frances Suzanne Scott as settlor appears in the space so provided at the end of the document. No signature appears in the space similarly provided for the subscribed signature of the trustee; and the First National Bank has never caused the “Trust Indenture” to be signed by it as trustee.

On August 7, 1959, Mrs. Scott’s attorney transmitted a copy of the “Trust Indenture” to the First National Bank by letter to C. H. Jones, its trust officer, with directions to “Please have enclosed Trust Agreement executed by one of your officers, sending one copy to Mrs. Scott and an unsigned copy to me.” When the “Trust Indenture” arrived in the bank, its trust department concluded that the instruments would be placed on file and would be retained unexecuted by the bank until termination of the H. B. Duke trust at which time the bank anticipated trust assets would be available and a decision would be made on accepting the trust. This was confirmed by letter to Mrs. Scott’s attorney August 10, 1959. The bank’s trust officers felt that Mrs. Scott should be consulted upon termination of her grandfather’s trust and “asked to approve the [her] establishment of the trust.” The bank took the position it would retain the “Trust Indenture” until such time as Mrs. Duke died, which would make it necessary to make a decision about the instrument “as to whether it would be acceptable.” The purpose for holding the instrument unexecuted by the bank was “lack of assets and a feeling that should assets be received * * *, arrangements would have to be made to make sure that the persons involved [Mrs. Scott] would be agreeable to setting up the trust and administering it * * * .” It was the bank’s intention to accept the trust upon conditions that: the H. B. Duke trust be terminated at which time funding would be available; Mrs. Scott reaffirm and agree to setting up a trust; Mrs. Scott agree and sign a receipt for assets to transfer from the H. B. Duke trust to the trust that would have been set up under the July 31, 1959, document.

On January 26, 1961, Mrs. Scott was declared incompetent by the Probate Court of Johnson County, Kansas, and a guardian of her person and estate was appointed. On July 19, 1961, the guardian sought and obtained an order of the probate court directing the guardian “to withdraw, revoke, and cancel” the “Trust Indenture” of July 31,1959; and on the same date, the guardian notified the First National Bank that he, on behalf of the incompetent, was withdrawing, revoking, and cancelling the instrument.

On May 8, 1962, the probate court restored Mrs. Scott to full capacity and dissolved the guardianship.

On December 8, 1974, following termination of the H. B. Duke trust, Mrs. Wheeler executed and delivered to the bank an affidavit in which, among other things, she asserted the “Trust Indenture” is “a nullity because not acted upon or signed by the First National Bank * * * as trustee.”

The bank holds approximately $500,000 in securities as Mrs. Wheeler’s share in the assets of the now terminated H. B. Duke trust. Such funds have never been delivered to a trust account nor administered upon under the “Trust Indenture” of July 31, 1959.

Appellants’ position is that while acceptance of a trust by a trustee is necessary to bind the trustee, it is unnecessary to creation of a valid trust binding upon the settlor. See 89 C.J.S. Trusts § 60, p. 831. They assert that acceptance by the First National Bank was unnecessary to bind Mrs. Wheeler as she was bound by her execution of the “Trust Indenture” even had the bank immediately disclaimed the trust and refused the trusteeship, I Scott on Trusts, § 35, p. 287 (1967); that Mrs. Wheeler unilaterally and without aid of a trustee accomplished an effective and irrevocable transfer in trust of her property, Bogert, Trusts and Trustees, § 150, p. 62 (1965); that in such eases acceptance is presumed or is unnecessary, II Scott on Trusts, § 137, p. 1086 (1967); and where the trustee fails or refuses to act, the trust remains valid and the court appoints or substitutes a trustee, In re Soulard’s Estate, 141 Mo. 642, 43 S.W. 617 (1897); §§ 456.190-456.200, RSMo 1969.

There is no quarrel with the foregoing general principles on the question of acceptance by a trustee as an incident of establishment of a valid unilateral inter vivos trust. The difficulty in appellants’ position, however, is that what a settlor may do unilaterally has no bearing on what Mrs. Wheeler did in this case.

The language previously quoted from the “Trust Indenture” demonstrates a bilateral agreement to establish a trust as opposed to a unilateral and unconditional declaration of trust coupled with an unconditional transfer of property in trust. The language demonstrates an offer by Mrs. Wheeler to establish a trust and transfer property to the bank as trustee in exchange for the bank’s “acceptance” and “promise * * * to hold the trust estate and perform the duties” prescribed. The document and the trust remain unaccepted by the trustee and the promises required of the trustee have never issued. While such executory circumstances prevailed, Mrs. Wheeler withdrew, revoked and cancelled the document.

Whether purported to be created by will, deed or contract, construction of the instrument requires the court to determine the intention of the settlor where the creation of the trust is a unilateral matter, and to determine the intention of the parties, where such creation is a bilateral matter. 76 Am.Jur.2d Trusts, § 17, p. 264. Where a bilateral contract is employed, an unequivocal and certain acceptance of an offer is necessary to make the contract binding. Restatement of Contracts, § 58, p. 65 (1932); Frey v. Yust, 516 S.W.2d 321 (Mo.App.1974).

As in the case of any other kind of contract, a bilateral agreement to create a trust is enforceable against the offering settlor, Mrs. Wheeler, only when accepted by the other party to the contract, the bank. See I Scott on Trusts, § 35.1, p. 288 (1967):

“ * * * the failure of the trustee to accept may prevent the creation of the trust where the trust instrument expressly so provides, or where, as is ordinarily the case, the settlor did not intend the trust to become effective prior to its acceptance by the trustee.”

See also Denny v. Guarantee Title & Trust Co., 118 Kan. 286, 234 P. 966, 967 (1925), where a contract to create a trust was unenforceable against the settlor which provided, “This contract shall not be binding * * * until the trust herein created is accepted by the trustees * * * herein named * * * and In re Rivas’ Trust, Sup., 100 N.Y.S.2d 357 (1950), where an inter vivos trust agreement was not enforceable against the settlor until satisfaction of a provision that the settlor’s execution was “ ‘in further consideration of the acceptance by my Trustees herein named of the trust hereinafter established.’ * * * the only logical conclusion * * * is that the trust instrument became effective upon the acceptance of the trust by the trustees, and the transfer to them as trustees of the securities * * * . They had no power to deal with the securities as trustees prior to that time. * * * Had she [settlor] died, certainly, the trust agreement would not have been effective. Further, she could have revoked the trust at any time prior to its acceptance.” 100 N.Y.S.2d 1. c. 360. See also National Motor Club of Missouri, Inc. v. Noe, 475 S.W.2d 16 (Mo.1972), where a bilateral or multiparty contract prepared for signature by each party to be bound requires the signature of such party in order to be enforceable.

The document in question is “by and between” the settlor and trustee, and the settlor’s offer and promises are given “in consideration of” acceptance and promises of the trustee. The intent of Mrs. Wheeler to secure acceptance and mutual promises from the bank as a condition to creation of the trust is clear. Acceptance of the trust by the bank was express in Mrs. Wheeler’s bargain; and failure of such acceptance prior to her withdrawal and revocation was fatal to the proposed trust.

Judgment affirmed.

All concur.