text:
    Alton Eugene MYERS, Appellant, v. The STATE of Texas, Appellee.
    No. 55348.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 8, 1978.
    Frank W. Sullivan, III, Fort Worth, for appellant.
    Davis S. McAngus, Asst. State’s Atty., for the State.
    Before DOUGLAS, DAVIS and VOL-LERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of more than four ounces of marihuana. Art. 4476-15, Sec. 4.05(a) & (b)(1), V.A.C.S. The jury assessed punishment at ten years and a $5,000 fine.

The appellant and his wife were tried together in a joint trial. As hereinafter noted, a mistrial was declared as to appellant’s wife.

Since we find that the prosecutor’s commenting on appellant’s failure to testify requires reversal of this cause, it is not necessary to set out the facts or reach appellant’s other grounds of error.

The argument complained of occurred during the prosecutor’s final argument. The record reflects the following occurred during the argument:

“That man right there, no question about it, should be sent to the penitentiary. Why would a man have 269 pounds of marijuana?
“Now, they have come here — Those two people have talked about everything except why that man had 269 pounds of marijuana out there in that pickup. There has been no explanation of that. “MR. HILL [defense counsel]: We would object at this time on the grounds- — Let us approach the Bench with the Court Reporter.
“(At this time, the attorneys and the Court Reporter approached the Bench out of the hearing of the Jury.)
“MR. HILL: We would object on the grounds that he is commenting on the failure of the Defendants to testify. He said there has been no explanation of it. “THE COURT: Overrule your objection. “MR. SMITH [defense counsel]: Note our exception.”

While the foregoing argument forms the basis of appellant’s ground of error, we note that the argument which followed resulted in a mistrial being granted as to appellant’s wife.

“MR. TANDY: He talked to you about that a minute ago saying that the State didn’t bring them in because they were trying to hide something from you. We weren’t trying to hide anything from you. You heard those officers testify that some of the officers were out there guarding the road. That’s all they were doing out there. They didn’t ask you to say by your verdict not guilty because they didn’t have the marijuana. Everybody knows they had it in the pickup truck and it was in the house.
“Now, let me ask you this: Where was this found (Indicating)? You remember from the testimony where it was found. They wanted to talk about that. It was found in the refrigerator. How many of you women don’t know what’s in your refrigerator? She is sitting over there trying to tell you that she doesn’t know anything. She is not saying anything— just sitting here.
“MR. HILL: Your Honor, we are going to object again on the same grounds that we did previously.
“THE COURT: Bailiff, if you will retire the Jury.”

The trial court granted a mistrial in the wife’s case. The record indicates that the judge ordered the jury to disregard the statement as to the appellant but denied a motion for mistrial.

We first note that the objection to the argument in question was overruled. Therefore we are not presented with a question of whether a timely instruction cured the error in question.

The State maintains that “those two people” referred to the appellant’s attorneys. Assuming, arguendo, that this is true, the remark was still improper.

The State may not comment on the accused’s failure to testify. Tex.Const., Art. I, Sec. 10; Art. 38.08, V.A.C.C.P., construed in Pollard v. State, Tex.Cr.App., 552 S.W.2d 475; Dubose v. State, Tex.Cr.App., 531 S.W.2d 330; Bird v. State, Tex.Cr.App., 527 S.W.2d 891; U.S.Const., Amend. V, construed in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The comment must be more than an implied or indirect allusion to the defendant’s silence, however. Pollard v. State, supra; and Bird v. State, supra. The remark, when viewed from the jury’s viewpoint, must have necessarily referred to the defendant. Griffin v. State, Tex.Cr.App., 554 S.W.2d 688; Nowlin v. State, Tex.Cr.App., 507 S.W.2d 534. But an indirect comment that labels certain evidence as uncontroverted, unrefuted, or un-contradicted is impermissible if only the defendant could offer the rebutting evidence. Pollard v. State, supra; Dubose v. State, supra; Bird v. State, supra. Thus, if the remark complained of called the jury’s attention to the absence of evidence that only the testimony from the appellant could supply, the conviction must be reversed.

Read in the light most favorable to the State’s interpretation of this argument, the prosecution simply posed the rhetorical question of why the appellant had such a large quantity of marihuana, and noted that no explanation was made. The inference from this argument was that it was a quantity that would be possessed only for the purposes of sale. Only the appellant or his wife, who was a co-defendant, could offer the explanation called for. We find that the argument was an allusion to the appellant’s and his wife’s failure to testify and requires reversal.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: VOLLERS, Judge.

license: Public Domain

text:
    Lorenzo Ervin DANIELS, Appellant, and Jerry Sylvester Moore, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55595 to 55597.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 8, 1978.

      John Ellis, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds, Hugh Lucas, Jr., and Stewart C. Robinson, Jr., Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

Appellants were separately indicted for the offense of aggravated robbery but were convicted in a joint trial before a jury (cause numbers 55,596 and 55,597). Both appellants elected to have punishment assessed by the trial judge and appellant Daniels received a term of 25 years in the Texas Department of Corrections while appellant Moore received a term of twenty years. At the time of the commission of the main offense, appellant Daniels was on probation for a 1974 conviction for the offense of burglary of a habitation (cause number 55,-595). The motion to revoke probation in that cause was heard concurrently with the aggravated robbery trial, with certain portions of the evidence being heard outside of the presence of the jury when they were relevant only to the revocation of probation. At the conclusion of the trial Daniels’ probation was revoked on the trial judge’s finding that he had violated the terms of his probation by committing the offense of aggravated robbery. The trial judge imposed punishment of five years confinement.

In briefs which are virtually identical, appellants, through separate appointed counsel, raise two grounds of error on appeal: (1) that the trial court erred in denying appellants’ motions to suppress evidence seized as the result of an allegedly improper search, and (2) that the trial court erred in refusing to declare a mistrial for improper jury argument by the prosecutor. The sufficiency of the evidence is not challenged.

We do not reach the merits of appellants’ first contention. A brief recitation of the pertinent evidence will be necessary to dispose of this ground. Appellants were arrested, along with a third person, in the car of appellant Moore, after a description of the automobile had been broadcast (including license plate number) over the police radio frequency in relation to an aggravated robbery unconnected to the instant offense. As a result of that arrest and a search conducted incident thereto, a toolbox was seen in the trunk of Moore’s car and later, while the car was in the police department pound to which it had been removed following the arrest, this toolbox was taken from the car. It was shown to Garney Weemes, the complaining witness in the instant case, and identified by him as one which appellants took from him at gunpoint the night they robbed and abducted him in his pickup truck.

The record in this case reflects that at the time that the State closed its case against each of the appellants appellant Moore made it known to the court that he desired to change his plea to guilty. Because the court would not allow him to change his plea to guilty before the jury and at the same time elect that the court assess punishment, appellant Moore did not change his plea. However, he did take the stand and admit his guilt of the charge against him. Further, he admitted that the toolbox which he had stolen from Weemes was in the trunk of his car at the time he and Daniels were arrested. He denied that his brother and co-defendant, Lorenzo Er-vin Daniels, had been with him at the time Weemes was robbed and claimed instead that it had been his other brother, Jeremiah Daniels, who had assisted him in the commission of that crime. Since appellant Moore admitted in his testimony that he stole the toolbox and that it was in the trunk of his car at the time of his arrest, no error is preserved with respect to the allegedly improper search in which the evidence was seized. Zabala v. State, 554 S.W.2d 703 (Tex.Cr.App.1977); Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977); and Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

With respect to appellant Daniels, the same result is required by the case of Zaba-la v. State, supra. In that case, it was the testimony of a co-party to the offense which admitted the possession of the evidence in question at the time of the allegedly illegal search. Such testimony was held binding with respect to the non-testifying defendant and any error resulting from the admission of said testimony was held harmless. We further note that in this case the only defensive issue remaining in the case after Moore’s testimony was the identity of the second man who robbed Weemes. Moore testified that it was he and his brother Jeremiah. Weemes testified that it had been Moore and Lorenzo Daniels. Evidence that Weemes’ toolbox was in the trunk of the car owned and driven by Moore and in which his brother, Lorenzo Daniels, was a passenger four days after the commission of the instant offense is of so little probative value on the issue of identity that we would doubtless hold it to be harmless error even if it had not been admitted by Moore on the stand.

The first ground of error is overruled as to both appellants.

In their second ground, appellants complain of the following argument by the prosecutor: “Now it all boils down to the credibility of the witnesses, and we see it too many times I think down here where everyone is putting all the blame on the juveniles.” (The prosecutor’s remarks were addressed to appellant Moore’s testimony that it had been his juvenile brother Jeremiah Daniels, incarcerated at the Gaines-ville youth corrections facility at the time of trial, who had been with him at the time of the Weemes robbery, rather than his other brother, appellant Lorenzo Daniels.) Appellant Daniels’ objection to this argument as being outside the record was sustained and the jury was instructed to disregard the argument, but the motion for a mistrial was denied. The complained of argument was not so harmful that the trial judge’s instruction to the jury that it should disregard same could not cure its harmful effect. Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978); Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App.1978); and McCarty v. State, 557 S.W.2d 295 (Tex.Cr.App.1977).

Appellants’ second ground of error is overruled.

For the foregoing reasons, appellants’ convictions for the offense of aggravated robbery in Cause Nos. 55,596 and 55,597 are affirmed.

However, we are confronted with unassigned fundamental error in Cause No. 55,595 in that the indictment for burglary of a habitation under Art. 30.02(a)(1), V.A. P.C. fails to charge an offense and is therefore void. See American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App. 1974). The pertinent portion of that instrument reads as follows:

“LORENZO EAVIN DANIELS hereinafter styled Defendant, on or about the 27 day of May in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Arma Baker Jeffries, enter a habitation without the effective consent of Arma Baker Jeffries, the said owner, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State.”

The words “with intent to exercise control over the property of . . ” seem to indicate that this indictment intended to charge burglary under Article 30.02(a)(1), V.A.P.C. In Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1977), this Court held that a burglary indictment under Art. 30.-02(a)(1), attempting to charge burglary with intent to commit theft or a designated felony, may either use the words “with the intent to commit [theft or the designated felony]” or set out the constituent elements of the theft or felony. See Vaughn v. State, 530 S.W.2d 558 (Tex.Cr.App.1976). However, an indictment which does not use the language set out above and which fails to set out all of the elements of theft or the designated felony which the accused intended to commit is fundamentally defective. Ex parte Cannon, supra; and see Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977). As the analysis in the opinions in the Cannon case makes clear, the allegation that appellant entered the habitation with the intent “to exercise control over . property” is insufficient to allege theft under Article 31.03(a)(2) as it existed prior to the 1975 amendments and at the time of the commission of the offense herein. Such an indictment is insufficient in that it omits to state that the actor intended to deprive the owner of his property and that such action was without the owner’s effective consent. Ex Parte Cannon, supra (Opinion on Motion for Rehearing); and see Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977).

A fundamentally defective indictment fails to invoke the jurisdiction of the court and may be noticed or raised at any time, including on appeal from an order revoking probation. Kasper v. State, 547 S.W.2d 633 (Tex.Cr.App.1977); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); and Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

The judgment of the trial court in cause number 55,596 and 55,597 is affirmed. The judgment of the trial court in cause number 55,595 revoking the probation of appellant Daniels is reversed and the indictment is ordered dismissed.

      . Appellant Moore’s testimony could not be considered as evidence introduced in an effort to “meet, destroy or explain” the evidence obtained as a result of the allegedly unreasonable search and seizure, and hence, cases such as Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973) and Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974) do not mandate a different result.

      . It is not even arguable that this indictment charges burglary under Art. 30.02(a)(2) (burglary by concealment with intent to commit a felony or theft) or Art. 30.02(a)(3) (burglary by entry, with actual or attempted commission of a felony or theft).


author: DALLY, Judge.

text:
    Freddie Ray CARNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56000.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 8, 1978.

      Dalton Gandy, Fort Worth, Court appointed, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Stephen R. Chaney, Joe Drago, III, and Howard M. Fender, Asst. Dist. Attys., Fort Worth, for the State.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation.

On May 7, 1975, appellant waived his right to a jury trial and entered a plea of guilty to the offense of burglary. Punishment was assessed at imprisonment for six years, but imposition of sentence was suspended and appellant was placed on probation. One of the conditions of his probation was that appellant commit no offense against the laws of this State.

On March 29, 1976, a motion to revoke appellant’s probation was filed. The motion alleged that appellant committed the offense of aggravated robbery in Lubbock County on or about June 20, 1975, and had been convicted of said offense on December 9, 1975. On May 3, 1976, after hearing evidence, the trial court found the appellant had been convicted of the offense in Lubbock County, revoked appellant’s probation, and imposed sentence. The court ordered that the six-year term of imprisonment assessed in the instant case was to be cumula-ted with the eighteen-year term appellant received in Lubbock County.

On July 13, 1976, after notice of appeal from the revocation order had been given but before briefs had been filed, the trial court ordered a new trial on the motion to revoke. The court entered this order upon learning that the Lubbock County conviction, upon which the revocation order had been based, was not final because an appeal therefrom was pending in this Court. On August 9, 1976, appellant filed a motion requesting a speedy hearing or, in the alternative, that the motion for revocation be dismissed, and on the same date the motion to revoke was dismissed.

This Court affirmed appellant’s Lubbock County conviction in a per curiam opinion on March 1,1977. On April 27,1977, a new motion to revoke appellant’s probation was filed, containing the same allegations as the original motion. On June 13, 1977, after hearing evidence, the trial court revoked appellant’s probation and imposed sentence. The term of imprisonment was again ordered cumulated with the term imposed in the Lubbock County conviction, but appellant was credited with time served from March 29,1976, the date the original motion to revoke was filed.

Appellant contends that in filing the new motion to revoke nine months after the original motion had been dismissed the State violated Art. 42.12, Sec. 8(a), V.A.C. C.P. He also contends that he was denied his right to a speedy trial.

Art. 42.12, Sec. 8(a), supra, provides that a defendant who has been arrested following the filing of a motion to revoke his probation and who has not been released on bail may request that a hearing be held on the motion within twenty days of the filing date. In enacting this provision, the Legislature was concerned that such defendants might spend an excessive amount of time in jail simply because they were unable to make bond and could not get an early hearing due to crowded trial dockets. Ex parte Trillo, 540 S.W.2d 728 (Tex.Cr.App.1976). Appellant, on the other hand, was in custody pursuant to the sentence entered in Lubbock County at the time he filed his motion for a speedy hearing; since the punishment assessed in Lubbock County was imprisonment for eighteen years, he could not be released on bond. Art. 44.04, V.A.C.C.P. In any event, the dismissal of a motion to revoke probation for violation of Sec. 8(a), supra, is without prejudice to the State’s right to file another motion, provided that the defendant shall not be denied his right to a speedy trial or subjected to undue prejudice or harassment. Ex parte Trillo, supra. We hold that the State did not violate Art. 42.12, Sec. 8(a), supra, by filing the new motion to revoke.

The right to a speedy trial guaranteed by the Constitutions of the United States and Texas is applicable to probation revocation proceedings. Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975); McClure v. State, 496 S.W.2d 588 (Tex.Cr.App.1973); Hilts v. State, 476 S.W.2d 283 (Tex.Cr.App.1972). Whether an accused has been denied a speedy trial may be determined by the “balancing test” set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Each ease requires consideration of the following factors, although they are not exclusive:

(1) the length of the delay;
(2) the reason for the delay;
(3) the defendant’s assertion of the right; and
(4) the prejudice to the defendant resulting from the delay.

See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Turner v. State, 545 S.W.2d 133 (Tex.Cr.App.1976); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973).

Appellant’s complaint is directed at the nine months which elapsed between the dismissal of the original motion to revoke, which occurred on the same day appellant filed his first and only request for a speedy hearing, and the filing of the new motion. It is obvious that this delay was occasioned by the appeal of the Lubbock County conviction, on which the State was relying to support its motion to revoke. This was not a deliberate attempt by the State to delay the hearing in order to hamper the defense, but was a valid reason, analogous to a missing witness, justifying an appropriate delay. See Barker v. Wingo, supra, 92 S.Ct. at 2192; Easley v. State, supra.

Appellant has demonstrated no significant prejudice to him as a result of the delay. In general, there are three interests to be considered in determining prejudice to the defendant: prevention of oppressive pretrial incarceration; minimizing anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. Barker v. Wingo, supra; McKinney v. State, supra. Pretrial incarceration is not involved in this case, since appellant was in prison because of the Lubbock County conviction, and appellant does not claim that his defense was impaired. Any anxiety and concern which may have resulted from the delay must be considered in light of the fact that appellant was already waiting for a decision on his appeal from the much more serious Lubbock County conviction.

Appellant contends that because of the delay of the hearing he “lost the right to have at least a portion of his sentence run concurrent with the Lubbock County sentence.” There is no “right” to a concurrent sentence; whether punishment will run concurrently or cumulatively is within the discretion of the trial judge. Art. 42.08, V.A.C.C.P.; Banks v. State, 503 S.W.2d 582 (Tex.Cr.App.1974); McClure v. State, supra. In the instant case, the trial judge ordered that the punishment be cumulated with the punishment received in Lubbock County, but gave appellant credit for time served since the original motion to revoke was filed. In effect, appellant was benefitted by the delay because the time credited was thereby increased, reducing the time to be cumulated with the Lubbock County conviction.

The State was not barred by Art. 42.12, Sec. 8(a), V.A.C.C.P., from filing the new motion to revoke appellant’s probation following the dismissal of the original motion. In filing the new motion nine months after the first motion had been dismissed, the State did not, under the circumstances of this case, deny appellant his right to a speedy trial or subject him to undue prejudice or harassment.

The trial court did not abuse its discretion in revoking appellant’s probation. The judgment is affirmed.


author: ONION, Presiding Judge.

text:
    Vermon KELLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 58008.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 8, 1978.
    Joe A. Garza, Corpus Christi, court appointed, for appellant.
   OPINION ON REHEARING

ONION, Presiding Judge.

Our prior panel opinion is withdrawn and this en banc opinion is substituted in lieu thereof.

This is an appeal from a conviction for possession of heroin. On June 28, 1977 appellant entered a nolo contendere plea before the court, waiving trial by jury, and his punishment was assessed at seven (7) years’ confinement in the Department of Corrections.

Court-appointed counsel on appeal has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. A copy of such brief has been served upon the appellant and he has been advised of his right to file a pro se brief, to examine the record, etc. It would appear that there has been a compliance with An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); and Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974).

Upon our examination of the record, however, we have found error which calls for reversal and which shall be considered as an unassigned ground of error. See Article 40.09, § 13, V.A.C.C.P.

An examination of the transcription of the court reporter’s notes reflects that the trial court failed to give any admonishment at all as required by Article 26.13, V.A.C. C.P. (Acts 1975, 64th Leg., p. 909, ch. 341, § 3) in effect at the time of the nolo contendere plea. The record shows that the court called the case, determined that the appellant desired to waive the reading of the indictment, to enter a nolo contendere plea and to waive trial by jury. Thereafter, the Rule was invoked and the court commenced to hear testimony. Thus, there is no showing that the appellant was advised of the range of punishment nor was it determined that the plea was freely and voluntarily made, etc., as required by Article 26.13, supra.

Under these circumstances, we are not faced with a question of whether there has been a substantial compliance with Article 26.13, supra, but with a situation of no compliance.

The judgment is reversed and remanded.

      . After the panel opinion (Panel No. 3, First Quarter, 1978) was handed down, the cause was set for rehearing en banc by four judges of this court in accordance with the rules of this court.

      . The certificate of the court reporter found in the record approved by the trial judge states, “. . the above and foregoing contains a true and correct transcription of all the proceedings in the above styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.” It would thus appear that a full record of the proceedings is before this court.

      .Such statute provides:
      “Article 26.13. Plea of Guilty.
      “(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
      “(1) the range of punishment attached to the offense; and
      “(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
      “(b) No plea of guilty or plea of nolo conten-dere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.

        “(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.” (Emphasis supplied.)


author: HALL, Justice. JAMES, Justice,

text:
    Bobby Lee WATSON, Appellant, v. CARGILL, INC., NUTRENA DIVISION, Appellee.
    No. 5901.
    Court of Civil Appeals of Texas, Waco.
    Sept. 28, 1978.
    Rehearing Denied Nov. 9, 1978.

      Andy J. McMullen, McMullen, Connally, Robertson, Jordan, Holliman & Campbell, Inc., Hamilton, for appellant.
    John L. Bates, Waco, for appellee.
   HALL, Justice.

Plaintiff-Appellee Cargill, Inc., Nutrena Feed Division, brought this suit for quantum meruit to recover $4,554.72, alleged to be the reasonable value of dairy cattle feed sold and delivered by plaintiff to defendant-appellant Bobby Lee Watson on “a running account” in the regular course of business at defendant’s instance and request. Plaintiff sued also for reasonable attorney’s fees in the amount of $1,518.24. Defendant answered with a general denial, and with special pleas that (1) part of the account sued upon was barred by the two-year statute of limitation and (2) that he was not indebted to plaintiff on the last four sales sued upon because, by agreement of the parties, he had paid for each on delivery, but plaintiff had erroneously credited those payments to the oldest charges on his account. During the course of the trial, by way of trial amendment, defendant also pleaded that plaintiff had charged him usurious interest on the account subjecting plaintiff to the penalties set forth in Article 5069-1.06, for which he prayed recovery.

Trial was to the court without a jury. During the hearing the court determined that defendant’s plea of limitation was good, and refused to hear evidence proffered by plaintiff relating to the portion of the account which allegedly fell within the two-year limitation period. Plaintiff perfected its bill of exception on that proof. After the trial, the court sustained defendant’s plea of payment on delivery of the last four purchases from plaintiff, but denied defendant any recovery on his pleadings of usury. Under those rulings judgment was rendered for plaintiff for $1,192.41 on the account, plus $500.00 attorney’s fees.

Express findings of fact and conclusions of law were neither requested by the parties nor filed by the court. Therefore, it must be presumed that all necessary fact findings were impliedly made by the court in support of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).

Both parties complain on appeal. Defendant asserts (1) the court erred in allowing plaintiff any recovery on the account because there was no evidence of delivery or value of the feed sold to him; (2) the court erred in allowing plaintiff attorney’s fees because when this case was tried and determined there was no legal basis for such fees; and, (3) under the undisputed evidence, the court erred in failing to award defendant the penalties under the usury statutes, including an award of reasonable attorney’s fees. Plaintiff contends the court erred (1) in affirming defendant’s plea of limitation and failing to consider plaintiff’s proof as to all the open accounts; and (2) in holding that plaintiff could not credit cash payments made by defendant on the last four deliveries to the oldest unpaid invoices on the account.

Limitation

This case was originally filed by plaintiff on January 9, 1976, in the 19th Judicial District Court in McLennan County, as a suit on verified open account under the provisions of Rule 185, Vernon’s Tex.Rules Civ.Proc., for the sum $4,554.72.- The following itemized statement of account was attached to plaintiff’s original petition in support of the suit:

Copies of the six invoices listed on the statement of account were also attached to the original pleadings as exhibits.

On February 10, 1976, on defendant’s plea of privilege, the case was transferred to Hamilton County.

On February 18, 1977, after the case was docketed in the District Court in Hamilton County, plaintiff filed its first amended original petition, which was also in the nature of a suit on verified open account. However, the statement of account attached to the amended petition was as follows:

Again, the invoices attached to the amended petition were only the last six listed on the statement, being the same invoices attached to plaintiffs original pleadings.

When the case was called for trial on February 22, 1977, plaintiff’s counsel conceded the merit of an exception made by defendant attacking the validity of the affidavit attached to plaintiffs amended petition; admitted that “we do not now have a verified account”; and stated to the court that he would proceed on “a quantum me-ruit basis . . . and not under Rule 185.” The case proceeded on that basis.

Defendant’s plea of the two-year statute of limitation, Article 5526, Vernon’s Tex. Civ.St., was made to all transactions and charges shown on the statement of account attached to plaintiff’s amended petition which were not shown on the statement of account attached to the original petition. As we have said, the court sustained the plea. Plaintiff contends the ruling was erroneous, and we agree.

The limitation question is controlled by the applicability of Articles 5526 and 5539b, Vernon’s Tex.Civ.St. Article 5526 sets forth certain actions which must be brought within two years. It provides in part as follows:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
“5. Actions upon . open accounts ... In all accounts, . limitation shall run against each item from the date of such delivery, unless otherwise specially contracted.”

Article 5539b is concerned with limitation as affecting amended and supplemental pleading, and it reads as follows:

“Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. Provided, however, when any such amendment or supplement is filed, if any new or different facts are alleged, upon application of the opposite party, the court may postpone or continue the case as justice may require.”

We agree with defendant’s argument that each item on the open account was a separate transaction between the parties, but we believe that plaintiff’s original petition embraced the whole account, and that the amended petition was simply an enlargement and amplification of the facts of the account originally sued upon. In both pleadings, plaintiff sought the same balance due on the account of $4,554.72. To reach this balance as pleaded originally and by amendment required the application of all payments made by defendant to the oldest transactions, a procedure contested by defendant. It was plaintiff’s application of the payments in that fashion which brought forward the “partial balance” of $265.84 on invoice # 68652 as sued on in the original petition. If the case had gone to contested trial on plaintiff’s original petition, plaintiff would have been required to prove the account exactly as itemized in its amended pleading in order to establish its right to recover the alleged balance of $4,554.72. Accordingly, we hold that all the transactions itemized in the amendment were necessarily sued upon originally; and that under the provisions of Article 5539b the two-year limitation prescribed by Article 5526 was improperly applied by the trial court to those items of the account not shown in the original pleading. See First State Bank & Trust Co. v. Ramirez, 133 Tex. 178, 126 S.W.2d 16 (1939); Leonard v. Texaco, Inc., 422 S.W.2d 160 (Tex.1967); Browning v. El Paso Lumber Co., 140 S.W. 386 (Tex.Civ.App.—El Paso 1911, no writ). Because none of the account was barred by limitation, the proof in plaintiff’s bill of exception relating to all the transactions was properly before the court for consideration.

Designated Payment Credit

It is the settled rule that where there is a running account with various items of charges and credits occurring at different times, and no direction of payment has been made by the debtor, payments on the account as a whole are applied by law to the oldest unpaid portion of the account. Prowell v. Berry-Barnett Grocery Company, 462 S.W .2d 53, 54 (Tex.Civ.App.—Waco 1971, writ ref’d). The rule applies even if the oldest part of the account is barred by limitation when an undesignated payment is made by the debtor. Pyle v. Byrne, 331 S.W.2d 507, 509 (Tex.Civ.App.—Texarkana 1960, writ ref’d n. r. e.); Morgan v. Morgan, 406 S.W.2d 347, 350 (Tex.Civ. App.—San Antonio 1966, no writ). On the other hand, if the parties have agreed that a payment shall be applied to a certain indebtedness, or if the debtor has directed such application, then the agreement or direction is controlling. 44 Tex.Jur.2d 687 et seq., Payment, §§ 33, 36.

In our case the record shows that in February or March, 1975, when defendant was in arrears on his account, plaintiff refused to make future shipments of feed to defendant unless, at the time of delivery, defendant paid plaintiff in cash a sum equal to the charge for the feed delivered plus an additional $250.00 “overage.” Defendant met that requirement on the last four transactions shown on the statement of account, ante, in April and May, 1975 (evidenced by invoices # 69846, # 59599, # 69979, and # 76455) with the exception of the payment he made at the time of the delivery on April 25th (invoice # 59599) which did not include the additional $250.00 overage. Plaintiff applied all those payments, including the amount representing the charge for the feed delivered, as general payments to defendant’s account. The trial court found that the agreement of the parties was that those deliveries were made on a “cash sale” basis, with only the overages to be applied to the delinquent account. That finding is supported by the testimony of defendant, who stated that the agreement was this: “They would bring the feed out, but I would pay cash [for the feed delivered] plus two hundred and fifty dollars overage on my account. If I wasn’t there to pay the driver I would not get the feed delivered. They would not deliver feed on account. Any future deliveries received would be on a cash basis, and would be paid for in full when delivered — before the truck unloaded.” Plaintiff’s Field Manager who made the arrangement with defendant for cash payment on future deliveries denied defendant’s testimony that the agreement was for cash sales on delivery, but his testimony only raised a fact question which was resolved by the trial court as trier of the facts in defendant’s favor.

Granted the benefit of the court’s determination that the last four transactions were paid for on delivery, inasmuch as none of the account was barred by limitation defendant still owed the balance of $4554.72 principal on the account when this suit was filed.

Usury

The usury statutes in focus in this case are Articles 5069-1.03 and 5069-1.06, Vernon’s Tex.Civ.St. Article 5069-1.03 provides:

“When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all open accounts, from the first day of January after the same are made.”

Article 5069-1.06 provides penalties as follows:

“(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.
“(2) Any person who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all other charges and shall pay reasonable attorney fees set by the court; . . . ”

The terms of all sales made by plaintiff to defendant on the account in question were “2% 10 days, net 30 days.” That is, plaintiff would discount two percent of the charge for each delivery for payment within ten days of delivery; and the charge became delinquent if not paid within 30 days. An invoice prepared by plaintiff reflecting those terms was delivered to defendant on each shipment. Additionally, each invoice contained the following language printed on its face: “Above charges subject to a delinquency charge of one percent per month on past due balances.” At the end of each month, plaintiff mailed defendant a statement of the account reflecting the status of the account at that time.

Plaintiff began assessing delinquency charges on past due charges to the account in February 1975, and continued doing so through May, 1975. Additionally, beginning in March, plaintiff assessed the delinquency charge to the unpaid delinquency charges added to the account during the prior month. All delinquency charges were added to the account as principal, and were shown as such on the monthly statements sent to defendant. At the end of each month plaintiff mailed defendant an invoice showing the delinquency charges applied to his account during the month. The invoices show the following delinquency charges made: /

Invoice No. 00188 dated 3-31-75 (Terms “Net 10 Days”) “DELINQUENCY CHARGE TRANSACTION INV. 00020 INV. 68434 INV. 68497 INV. 68555 INV. 68572 INV. 68630 INV. 68652 INV. 68719 DATE 2-28-75 1-08-75 1-13-75 1-17-75 1-20-75 1-24-75 1-27-75 1-31-75 AMOUNT 14.53 251.63 977.17 875.77 589.40 978.67 705.51 926.57 TOTAL CHARGE FOR 20 DAYS 1 MO 1 MO 1 MO 1 MO 1 MO 1 MO 28 DAYS AMT. .09 2.51 9.77 8.75 5.89 9.78 7.05 8.64 52.48”
Invoice No. 00349 dated 4-30-75 (Terms “Net 10 Days”) “DELINQUENCY CHARGE TRANSACTION INV. 00020 INV. 00188 INV. 68555 INV. 68572 INV. 68630 INV. 68652 INV. 68719 DATE 2-28-75 3-31-75 1-17-75 1-20-75 1-24-75 1-27-75 1-31-75 AMOUNT CHARGE FOR 14.53 52.48 488.34 589.40 978.67 705.51 926.57 TOTAL 1 MO 19 DAYS 1 MO 1 MO 1 MO 1 MO 1 MO AMT. .14 .33 4.88 5.89 9.78 7.05 9.26 37.33”
Invoice No. 00459 dated 5-31-75 (Terms “Net 10 Days”) “DELINQUENCY CHARGE TRANSACTION INV. 00020 INV. 00188 INV. 00349 INV. 59599 INV. 68652 INV. 68719 INV. 69846 DATE 2-28-75 3-31-75 4-30-75 4-25-75 1-27-75 1-31-75 4-21-75 AMOUNT 14.53 52.48 37.33 843.05 265.84 926.57 523.18 TOTAL CHARGE FOR 1 MO 1 MO 20 DAYS 5 DAYS 1 MO 1 MO 9 DAYS AMT. .14 .52 .24 1.40 2.65 9.26 1.56 15.77"

The term “interest” is defined in Article 5069-1.01 as “the compensation allowed by law for the use or forbearance or detention of money”; and “usury” is defined in that statute as “interest in excess of the amount allowed by law.” The delinquency charges assessed by plaintiff were interest within the meaning of the statute. Parks v. Lubbock, 92 Tex. 635, 51 S.W. 322, 323 (1899); Windhorst v. Adcock Pipe And Supply, 547 S.W.2d 260 (Tex.Sup.1977).

Defendant testified that he did not agree to pay interest on the account, and there is no evidence that he did agree to do so.

As shown on the statement of account, defendant’s account with plaintiff began in November, 1974. Under Article 5069-1.03, supra, plaintiff would have been entitled to charge interest at the rate of six percent per annum beginning January 1, 1975, on the sum $3,679.13, which was then delinquent on the account. That sum was the total of transactions evidenced by invoices # 68163, # 68218, # 68263, and # 68316, less credit memo # 45849. Therefore, during January, 1975, plaintiff could have charged interest on the delinquent account in the amount $25.51, although it did not do so. On January 29th, transactions # 68163 and # 68218, totaling $2,256.94, were paid by defendant as is evidenced by the payment credit in that amount shown on the statement. Therefore, during February, 1975, plaintiff could have charged interest on the account in the amount $7.11 on the delinquent sum $1,422.19. However, after the $3,000.00 payment credited to the account on February 27th, there was no delinquency against which interest could have been charged by plaintiff. Accordingly, the interest charges actually made by plaintiff in 1975 on balances accruing in 1975 were prematurely made, and in violation of Article 5069 1.03. They were usurious.

Additionally, the invoices set forth above show that the interest actually assessed by plaintiff on defendant’s account was calculated at the rate of one percent per month compounded, on all charges to the account which were 30 days or more past due. Plaintiff’s Administrative Manager admitted that was the method of calculation. This rate was in excess of double the amount of six percent per annum allowed on open accounts under Article 5069-1.03; and although none of the interest was ever paid by defendant and none of it was sued for by plaintiff, the charging of it triggered the penalties set forth in Article 5069-1.06, supra. Windhorst v. Adcock Pipe And Supply, 547 S.W.2d 260, 261 (Tex.Sup.1977).

Excluding the charges to the account paid upon receipt of shipments by defendant, the evidence still shows that the principal balance of $4,554.72 sued for by plaintiff is made up of charges against which plaintiff charged interest in excess of twelve percent per annum. Accordingly, under the provisions of Article 5069-1.06, plaintiff must forfeit the principal amount of its account, plus the interest charged to the account in the sum $120.11, and defendant is entitled to recover twice the amount of interest charged plus reasonable attorney’s fees for prosecuting his usury claim. Lafferty v. A.E.M. Developers And Builders Co., 483 S.W.2d 279, 282 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.).

The remaining points and contentions of the parties are overruled.

Under our holdings plaintiff is not entitled to any recovery by this suit, and defendant is entitled to recover $240.22 plus an amount for reasonable attorney’s fees. Because the trial court denied defendant’s usury claim, it did not make a finding in his favor on attorney’s fees although he tendered proof on the question.

The judgment is reversed, and the case is remanded to permit the court to determine the amount to be awarded to defendant for his attorney’s fees, and to then render judgment in accordance with our rulings.

Reversed and remanded.

JAMES, Justice,

dissenting.

I respectfully dissent. I agree with the majority in that it is my opinion that the two-year statute of limitation does not apply. However, I disagree with the majority on the usury question. The majority holding is in effect this: That since the Plaintiff assessed delinquency charges against Defendant from February 1975 through May 1975 at the rate of one percent per month compounded monthly (after 30 days) for a total interest charge of $120.11, that the entire debt was tainted with double the amount of interest allowed by law under the provisions of Article 5069-1.06(2), calling for forfeiture of all principal plus reasonable attorney’s fees. T respectfully submit that such a disposition is not proper under the facts of this case.

Under Article 5069-1.03, Plaintiff was entitled to charge this account at the rate of six percent per annum from the first day of January after the deliveries of merchandise were made. This has been held to mean that such interest is chargeable from the first of the year after an account is made, regardless of the date on which it became due. Browning v. El Paso Lumber Co. (CCA 1911) 140 S.W. 386, no writ; Erb-Springall Co. v. Pittsburg Plate Glass Co. (CCA 1907) 101 S.W. 1165, no writ; 1 Tex. Jur.2d, “Accounts and Accounting,” par. 90, p. 340. Also see Tri-State Tire Service, Inc. v. Gates Rubber Co. (5th Cir. 1964) 339 F.2d 573.

Let us compute the amount of interest which Plaintiff had the right to charge the Defendant on this account under Article 5069-1.03 from its beginning down to November 22,1977, the date of the trial court’s judgment:

(1) On January 1, 1975, the Defendant’s principal balance was $3679.13, and his principal balance never fell below this amount during the year 1975. As we understand the above statute, from January 1, 1975, through December 31, 1975, Plaintiff was legally entitled to charge interest at 6% per annum for the year 1975 of $226.74.
(2) On January 1, 1976, the Defendant’s principal balance was $4554.72 and his balance never fell below this amount in 1976. From this date through December 31, 1976, interest at six percent amounts to $273.28.
(3)On January 1, 1977, the Defendant’s principal balance was still $4554.72. His balance never fell below this amount thereafter. From January 1, 1977, to November 22,1977 (date of the trial court’s judgment), interest at six percent per annum amounts to $265.65.

In short, the Plaintiff was legally entitled to charge the Defendant under Article 5069-1.03 interest in the total amount of $759.67.

Although the Plaintiff sued for no interest, he did charge the Defendant with $120.11 interest. Where the Plaintiff is entitled to charge interest in the amount of $759.67, but only charges $120.11 interest, I cannot see how we can say that the Defendant has been charged usurious interest. Indeed, the Defendant has actually been charged $639.56 less interest than he is liable for under Article 5069-1.03.

In my opinion, we should consider the account as a whole, particularly since Plaintiff’s suit is founded on quantum meruit, and determine first how much interest the Plaintiff was entitled to charge, and see whether he charged more than the proper charge, or less. Here, the Plaintiff charged $639.56 less than he was lawfully entitled to charge. Therefore, in my opinion, usury is not in the case.

I would reform the trial court's judgment by allowing the Plaintiff a net recovery of $4554.72 instead of the $1192.41 allowed by the trial court, and in all other respects I would affirm the trial court’s judgment.


author: DICKENSON, Justice.

text:
    COUNTY OF DALLAS et al., Appellants, v. YELLOW CAB OF DALLAS, INC., et al., Appellees.
    No. 5198.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 26, 1978.
    Rehearing Denied Nov. 16, 1978.
    Giles E. Miller, Asst. Dist. Atty., John E. Kirby and Wm. J. Mayhew, Asst. City At-tys., Dallas, for appellants.
    Wm. D. White, Jr., White, McElroy, White, Sides & Rector, Dallas, Wm. H. Brigham, Asst. Dist. Atty., Fort Worth, Wayne A. Rohne, Rohne & Hoodepyle, P. S. C., Arlington, Michael H. Bailey and Arthur Petersen, Asst. City Attys., Fort Worth, for appellees.
   DICKENSON, Justice.

The issue is which tax authorities should collect the ad valorem taxes on a fleet of 100 taxicabs which serve the Dallas-Fort Worth Airport. City of Dallas, Dallas County and Dallas Independent School District (Dallas County tax authorities) claim the right to tax these taxicabs because the taxicabs’ owner, Yellow Cab of Dallas, Inc. (Yellow Cab) and the taxicabs’ operator-lessee, Surtran Taxicabs, Inc. (Surtran) have their home offices within the jurisdictional boundaries of those tax authorities. On the other hand, City of Fort Worth, Tarrant County and Hurst-Euless-Bedford Independent School District (Tarrant County tax authorities) claim the taxicabs have acquired a tax situs within their jurisdiction because the taxicabs’ base of operations is located within their jurisdictional areas.

Yellow Cab and Surtran were willing to pay either the Dallas County tax authorities or the Tarrant County tax authorities, but not both. Yellow Cab and Surtran filed a petition for declaratory judgment under Article 2524-1, Tex.Rev.Civ.Stat.Ann. (1965), to determine which tax authorities were entitled to collect the ad valorem tax on the 100 taxicabs. They also tendered into the registry of the court the amount of taxes which had been assessed against the taxicabs by the set of tax authorities which had the higher tax claim. All of the tax authorities filed answers, cross-actions, and motions for summary judgment. Controverting affidavits and exceptions were filed. Yellow Cab and Surtran responded to requests for admission of facts and to written interrogatories, and they produced two of their officers for oral depositions in which all parties participated. The judgment shows that there was no evidentiary hearing.

The trial court’s corrected final judgment of January 25, 1978, recites in part that:

On the 14th day of January, 1977, Motions for Summary Judgment were filed on behalf of various parties in the above styled and captioned cause in which Yellow Cab of Dallas, Inc. and Surtran Taxicabs, Inc. are Plaintiffs, and the City of Dallas, Dallas Independent School District, Dallas County and the State of Texas, City of Fort Worth, Hurst-Euless-Bed-ford Independent School District, and the State of Texas and County of Tarrant are Defendants and Cross-Plaintiffs. The parties appeared in person and by and through their attorneys and waived trial and urged the Court to consider the pleadings, depositions, and affidavits on file, and to render its decision in accordance therewith; and the Court being of the opinion that the property in question has a situs for tax purposes in Tarrant County, Texas, and that the property in question is subject to taxation by the State of Texas and County of Tarrant, and the City of Fort Worth and the Hurst-Euless-Bedford Independent School District, and that the claim of Plaintiffs for attorney’s fees should be denied. .

The Dallas County tax authorities appeal from the trial court’s judgment in favor of the Tarrant County tax authorities. Their first point of error is that the trial court erred in granting judgment for the Tarrant County tax authorities in the absence of proof that the taxicabs had acquired a taxable situs within the jurisdiction of those tax authorities. We agree. The judgment will be reversed, and the cause will be remanded. It will not be necessary to discuss their second point of error.

Yellow Cab and Surtran perfected a separate appeal from that portion of the judgment which denied their claim for attorney’s fees. Their only point of error was that the trial court erred in denying their claim for attorney’s fees. We disagree. That portion of the judgment will be severed and affirmed.

During the oral submission of this cause, it became apparent that the dispute between the tax authorities had not been fully developed. The judgment recites that all parties “waived trial and urged the Court to consider the pleadings, depositions, and affidavits on file, and to render its decision in accordance therewith. . There was no evidentiary hearing, and the judgment must be reviewed as a summary judgment under Rule 166 A, T.R.C.P.

Parties moving for a summary judgment assume the burden of establishing that no material fact issues exist and that they are entitled to judgment as a matter of law. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972); Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex. 1970). There is a material fact issue as to whether or not the taxicabs have acquired a taxable situs separate and apart from the tax situs of Yellow Cab and Surtran.

Yellow Cab and Surtran cite authority for the proposition that a disinterested stakeholder who has reasonable doubts as to the party entitled to funds or property in his possession, and who in good faith inter-pleads the claimants, is entitled to an allowance for attorney’s fees. United States v. Ray Thomas Gravel Co., Inc., 380 S.W.2d 576 (Tex.1964). We have no quarrel with that general proposition, but it must be noted that no Texas cases have allowed the taxpayer to recover attorney’s fees in suits against tax authorities.

Article 7297, Tex.Rev.Civ.Stat.Ann. (1960) provides in part that:

The State and county shall be exempt from liability for any costs growing out of such action. . . . [for the recovery of taxes due on personal property]

Article 7343, Tex.Rev.Civ.Stat.Ann. (1960) provides in part that:

All laws of this State for the purpose of collecting delinquent State and county taxes are by this law made available for, and when invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts .

Article 7345b, Tex.Rev.Civ.Stat.Ann. (1960) authorizes a procedure by which a taxing unit may implead other taxing units having delinquent ad valorem tax claims against the same property. This statute does provide for the recovery of attorney’s fees; however, it does not apply to suits filed by the taxpayer.

The tax authorities are exempt from payment of any court costs in a suit to recover taxes. Nacogdoches Independent School District v. McKinney, 513 S.W.2d 5 (Tex.1974); City of Waco v. Owens, 442 S.W.2d 324 (Tex.1969); Electra Independent School District v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645 (1943, opinion adopted). This rule is applicable even where the taxpayer files the lawsuit, and the tax authority brings its claim by cross-action. Lubbock Independent School Dist. v. Owens, 217 S.W.2d 186 (Tex.Civ.App.—Amarillo 1948, writ ref’d); City of Bryan v. Texas Services, Inc., 499 S.W.2d 750 (Tex.Civ.App.—Waco 1973, writ ref’d n.r.e.). Therefore, we hold that Yellow Cab and Surtran are not entitled to recover their attorney’s fees or court costs from the tax authorities.

The Supreme Court’s per curiam opinion in Nacogdoches Independent School District v. McKinney, supra, states that the winning taxpayer should only be required to pay those costs incurred by him. The Supreme Court cites Rule 127, T.R.C.P., which states that:

Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from the party against whom they have been adjudged, execution may issue against any party in such suit for the amount of costs incurred by such party, but no more.

Yellow Cab and Surtran are liable for all costs incurred by them, but they should not be liable for the costs incurred by the various tax authorities. They will secure the relief sought in their interpleader suit — a determination as to which tax authorities have the right to collect taxes on the taxicabs. Consequently, they should only be required to pay the costs which they incur.

That portion of the trial court’s judgment which • denied Yellow Cab and Surtran’s claim for attorney’s fees is severed and affirmed. The remainder of the judgment is reversed, and the cause is remanded.


author: SWOFFORD, Chief Judge.

text:
    Cecil M. LONG, Jr. and Mary K. Long, Appellants, v. REA EXPRESS COMPANY and Paul L. Cameron, Respondents.
    No. KCD 27928.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Rehearing Denied Oct. 30, 1978.

      Don B. Roberson, Stephen B. Millin, Jr., Shughart, Thomson & Kilroy, Kansas City, of counsel, for appellants.
    A. Warren Francis, Lloyd A. Hamrick and Jeffrey T. O’Connor, Kansas City, for respondent REA Express Co.
    Joseph E. Stevens, Jr., Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, for respondent Paul Cameron.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

This case arises from a collision involving an automobile driven by Cecil M. Long, appellant, and a van truck owned by REA Express Company (REA) and driven by Paul L. Cameron (Cameron), respondents. Cecil Long and Cameron were the only occupants of the vehicles at the time of the collision. Cecil Long and his wife, Mary, brought suit jointly, in separate counts, against both Cameron and REA, for personal injuries sustained by Cecil, damage to the Long automobile, and damages for loss of services and consortium sustained by Mary by reason of injuries to her husband. Cameron counterclaimed against Cecil Long for personal injuries, and REA counterclaimed against him for damages to the truck. The jury returned a verdict in favor of Cameron and REA on plaintiffs’ claims, and in favor of Cecil Long on the counterclaims.

After an unsuccessful motion for a new trial, the Longs appealed. The only points urged by plaintiffs are that the court erred in giving Instruction No. 5, offered by defendants, which reads:

“Your verdict must be for defendants on plaintiffs’ claims for damages unless you believe that defendants were negligent as submitted in Instruction Nos. 3 and 4 and that plaintiffs sustained damages as a direct result thereof.

Submitted by Defendants

M.A.I. 33.03(5)” (Emphasis supplied)

Instructions No. 3 and No. 4 are separate verdict directing instructions offered and given for the plaintiffs. Both are predicated upon a finding of negligence on the part of defendant Cameron based upon the hypothesis that he “knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have slackened his speed but that said defendant failed to do so” and was “thereby negligent”. Plaintiff Cecil Long seeks a verdict for the damages sustained by him (No. 3) and Mary Long for her damages sustained by reason of injuries to her husband (No. 4). Both instructions conclude with the proviso “unless you believe Plaintiff [Cecil M. Long, (No. 3) or Mary Long (No. 4)] is not entitled to recover by reason of Instruction No. 6”, the contributory negligence instruction.

The thrust of plaintiffs’ attack upon Instruction No. 5 is two-fold. First, they state (here in summary) that this instruction is erroneous because it requires the jury to find that both Cecil Long and his wife Mary were damaged, whereas, the husband’s right to recover damages for his own injuries is not conditioned upon the predicate that his wife sustained damages for loss of services or consortium by reason of his injuries, and, second, that the instruction was erroneous because it required a finding that both defendants, Cameron and REA, were negligent, and that as a matter of law the plaintiffs’ right to recover was not dependent upon a finding that defendant REA was negligent.

This second attack can be here disposed of upon the basis of the record before this Court. There was no dispute that at the time of this occurrence the defendant Cameron was an employee of REA, driving its equipment and acting within the course and scope of his employment. This relationship is specifically and affirmatively admitted in REA’s counterclaim for damage to its van. Thus, REA, was vicariously and directly liable for the negligence of Cameron under the doctrine of respondeat superior.

The first attack upon Instruction No. 5 must be passed for the moment because the respondents specifically preserved below and raised upon this appeal two points which, if favorably ruled, would be decisive of this appeal. The respondents state that appellants did not make a sub-missible case based upon the hypothesis of Instruction No. 5, of negligent failure to slacken speed, and that the evidence conclusively established, as a matter of law, that plaintiff Cecil Long was guilty of contributory negligence. Of course, if either of these arguments represents a valid legal position under the evidence, defendants’ motions for directed verdicts should have been sustained at the close of all the evidence, and errors in instructions or elsewhere in the record could not have prejudiced plaintiffs and need not be considered further. Hosford v. Clark, 359 S.W.2d 424, 426[1] (Mo.App.1962); Osborn v. McBride, 400 S.W.2d 185, 188[1] (Mo.1966); Shepard v. Ford Motor Co., 457 S.W.2d 255, 259[2, 3] (Mo.App.1970); Wilkerson v. State Farm Mutual Ins. Co., 510 S.W.2d 50, 52[3] (Mo.App.1974). Under this state of the record, these claims by respondents become a matter of first concern and require a somewhat detailed review of the evidence. In so doing, it must be kept in mind that the burden of persuasion on these claims rests on the respondents and the evidence must be considered in a light most favorable to plaintiffs, plaintiffs’ evidence and all reasonable inferences to be drawn from the evidence must be accepted as true, and all evidence contrary thereto or in conflict therewith must be disregarded. Burrow v. Moyer, 519 S.W.2d 568, 570[1] (Mo.App.1975); Holtmeyer v. Scherer, 546 S.W.2d 29, 32[1] (Mo.App.1976). The matter of negligence, causation and contributory negligence are usually questions for the jury and not for the trial court, if reasonable men could honestly differ as to those points. Ogden v. Toth, 542 S.W.2d 17, 19[2] (Mo.App.1976); Holtmeyer v. Scherer, supra, l.c. 32[4]. When so viewed, the evidence discloses the following facts:

A collision involving motor vehicles driven by Cecil Long and Paul Cameron occurred on January 28,1970 , at 12:30 p. m., within the 4100 block of Front Street in Kansas City, Missouri, not at an intersection. At the scene of the accident Front Street is a roadway with two lanes, each approximately 12 feet in width, accommodating east and westbound traffic. The weather was clear, the pavement dry, and visibility in both directions was unobstructed. Long was proceeding west in a white 1960 Pontiac station wagon. Cameron was proceeding east in a Ford van-type truck owned by his employer, REA Express Company. Long’s automobile was in good mechanical condition.

At the time of collision, Long was westbound, followed by a tractor-trailer truck driven by Admiral Harris. After the collision, Cameron’s truck lay on its right side blocking the north or westbound lane, and Long’s automobile rested at a point 10 to 12 feet north of the roadway. The events which transpired immediately prior to the collision, particularly estimates of speed, distance and location of the point of impact, and the presence and location of another truck driven by John Cowger, were subject to contradictory testimony between the witnesses at trial, and between the witnesses’ testimony at the first trial and on prior occasions.

Long testified that as he proceeded in the north lane at 30 to 35 miles per hour, he overtook and passed Harris’ tractor-trailer truck, which was proceeding at 20 to 25 miles per hour; that it was the only vehicle he passed on Front Street before the collision; and that there were no other vehicles westbound in front of him. Before he pulled onto the south lane to pass, he saw Cameron’s truck approaching eastbound in the south lane, over two blocks away. Completing the passing maneuver, he observed Cameron’s truck at an approximate distance of one and a half to two blocks away. When their vehicles were 75 to 100 feet apart, Long noticed that Cameron was “fighting the wheel” and having “difficulty controlling his vehicle”. Cameron’s truck then turned to the left, and Long braked and swerved to the right but was unable to avoid the collision, which occurred in Long’s lane, the north or westbound lane.

Cameron, called as a witness by the plaintiffs, testified that he was traveling in the south lane at about 40 miles per hour when, at a distance of approximately 200 feet, Long pulled onto the south lane to pass the two tractor-trailers driven by Cowger and Harris. He immediately applied his brakes but the truck began to “fishtail”, whereupon, he immediately disengaged the brakes in order to allow the fishtailing motion to subside. He testified that he had secured the van truck from his company’s repair shop that morning and that it was heavily loaded. The record does not reveal the nature of this load except that it consisted of large packages and some rolls of rugs of such length that he could not shut the doors on the truck which ordinarily separated the driver’s compartment from the load compartment and, as a result, the rugs, because of their length, extended into the driver’s area. When he applied his brakes, the truck began “fishtailing”. He had to let up on his brakes to stop the “fishtailing”. Thereafter, he steered his truck to the right, so that its right wheels were on the south shoulder of the roadway, which was wet and muddy. He then again applied the brakes, the truck jerked sharply to the left or back onto the roadway, and he was thrown from the operator’s seat into the step-well immediately to his right in the truck. Cameron testified he did not observe the location of impact in terms of the center of the roadway. He estimated the total time lapse between first sighting Long and impact at two to three minutes. Cameron stated that he could have stopped his vehicle in the distance afforded when he first observed Long by staying on the pavement but this would not have avoided the collision. However, Cameron acknowledged his prior testimony under oath, that had he kept his vehicle on the roadway, he probably could have stopped in time to have avoided the collision, and that such testimony was true when he gave it and true at the time of this trial. Of course, if he had ability to stop before impact (as he stated) he had ability to slacken speed.

John Cowger testified for the defendants that Long passed his truck at approximately 40 miles per hour and returned to the north lane behind the truck driven by Admiral Harris. When Long pulled onto the south lane to pass Harris, Cowger observed the approaching Cameron vehicle. As Long went ahead of Harris and started to return to the north lane, Cameron went to the south shoulder, then turned to the left and Cameron and Long collided “in the center of the roadway”. On cross-examination, Cowger acknowledged his prior testimony under oath to the effect that Long had returned to his lane and that the position of Harris’ truck between Long and his vehicle prevented his observation of the point of impact.

Admiral Harris testified that he was proceeding at 30 to 32 miles per hour and first observed Long attempting to pass when Long’s automobile was even with the rear wheels of his 55-foot long tractor-trailer. About the same time, he noticed Cameron’s vehicle approaching at a distance of a little more than 300 feet. He observed Cameron partially go to the shoulder, then turn toward the center of the roadway. On cross-examination, Harris acknowledged his previous testimony under oath, that Long had completely returned to the north lane while the Cameron vehicle was still 50 to 60 feet away.

Under the facts here presented, a submission of failure to slacken speed requires substantial evidence of an appearance of danger, of sufficient time and distance to enable defendant to slacken speed and thereby avoid collision, and of the necessary mechanical appliances at defendant’s command to take effective action. Cook v. Cox, 478 S.W.2d 678, 680-681[3-4] (Mo.1972); Saupe v. Kertz, 523 S.W.2d 826, 830[5] (Mo. banc 1975). Under the evidence above noted, this record amply supports the submission of the matter of Cameron’s negligence to the jury. This is true under the evidence whether one adopts Long’s or Cameron’s account of the events preceding the collision.

Respondents’ contentions as to contributory negligence are directed primarily at the issue of causation. While a motorist should not attempt to pass another vehicle in the face of oncoming traffic except by the use of the highest degree of care, upon appearance of danger it is equally incumbent upon the oncoming motorist “to exercise the highest degree of care to avoid collision by slowing, stopping, swerving or other means reasonably available and consistent with his own safety”. Probst v. Seyer, 353 S.W.2d 798, 804[8] (Mo.1962). Specifically, respondents submit the absence of substantial evidence of the stopping distance of Cameron’s truck is fatal to plaintiffs’ submission and renders Long contributorily negligent as a matter of law. Essentially, respondents argue that Long was negligent to pass in the face of Cameron’s oncoming vehicle and that insufficient evidence was presented at trial to allow the jury to conclude that Cameron’s failure to slacken speed was the proximate cause of the accident. In Offenbacker v. Sodowsky, 499 S.W.2d 421, 423[1] (Mo.1973), the Missouri Supreme Court upheld a submission of failure to stop without the presence of evidence of specific stopping distance where the defendant testified he could have stopped his vehicle before impact, but instead went to the shoulder and then applied his brakes. At the first trial of this case, Cameron, when asked to state the distance in which he could have stopped his truck had he remained on the roadway, testified, “Well, I could have stopped in time, probably if I had remained on the roadway”. This admission by the defendant, when considered with all the evidence adduced at trial, is sufficient evidence of stopping distance to make a submissible case of failure to slacken speed. As the jury could therefore reasonably conclude that Cameron’s failure to slacken speed was the proximate cause of the accident, a judicial declaration that Long was contributorily negligent as a matter of law is improper. See Hosford v. Clark, 359 S.W.2d 424, 428 (Mo.App.1962) and cases cited therein.

That brings the decisional process in this case to a consideration of the propriety of defendants’ converse Instruction No. 5, above set out in full. This instruction shows upon its face that it is M.A.I. 33.03(5) but does not show that it is a modification of that approved instruction. M.A.I. 33.-03(5) is noted as “(Conversing Damages and Causation)” and reads:

“Your verdict must be for defendant [on plaintiffs’ claim for damages] unless you believe that defendant was negligent [as submitted in Instruction (5) Number _] and that plaintiff sustained damages as a direct result thereof.”

It is noted that defendants in this case modified and deviated from M.A.I. 33.-03 by altering “plaintiff” and “defendant” to the plural form. Deviation from or modification of approved instructions raises a presumption of prejudicial error for which the party offering such instruction bears the burden of demonstrating the non-prejudicial effect thereof. Watterson v. Portas, 466 S.W.2d 129, 132[5, 6] (Mo.App.1971); S.Ct.Rule 70.01(c).

Appellants’ charge of error in the giving of this instruction is resolved by reference to the purpose which such instructions serve. Generally, the converse applies elements of the verdict director and is intended to authorize a verdict for a defendant upon a finding of the converse of any fact or element of the case essential to a verdict for the plaintiff. S.Ct.Rule 70.-01(f); M.A.I. “How to Use this Book”, p. LI. It follows that a converse that requires the jury to find the converse of an element or fact not essential to plaintiff’s recovery is confusing, misleading and erroneous.

In the case at bar, the Longs in separate verdict directing instructions submitted a common theory of recovery but the elements of their respective damages were completely different and separate. Respondents’ modification of M.A.I. 33.03(5) erroneously required a finding that both plaintiffs sustained damages as a condition precedent to recovery by either. Cecil Long’s, the husband’s right of recovery for his injuries and consequent damages is not conditioned upon Mary Long having sustained damages for loss of his services and consortium, as his wife.

Missouri courts have considered this type of converse on two occasions. In Mayberry v. Clarkson Construction Company, 482 S.W.2d 721, 726[5] (Mo.1972), an action by husband and wife each for personal injuries and for loss of consortium of each other, the converse submitted stated that the verdict must be for defendant on both claims for consortium and the husband’s claim for personal injuries unless the jury believed each proposition contained in the three respective verdict directors. The Court found the converse “confusing, misleading and erroneous”, in that (l.c. 726):

“(T)he instruction places the three claims * * * in one category and tells the jury that either the plaintiffs are to recover on all three, or on none * * ”

In Burrow v. Moyer, 519 S.W.2d 568, 572[7, 8] (Mo.App.1975), an action by the wife for personal injuries in which the husband joined for medical expenses and loss of consortium, defendant submitted one converse which read in relevant part, “ * * * an(j y^at plaintiffs sustained damage as a direct result thereof”. The Court found prejudicial error because “ * * * A single converse is used only in cases where defendant intends to converse the same theory in each of plaintiffs’ verdict directors’ and not where defendant was seeking to converse both negligence and damages.

Instruction No. 5 requires the jury to find more than the essential elements of plaintiff-husband’s case in order to find for him. S.Ct.Rule 70.01(f). Respondents were not without alternatives, as separate converses for the common theory of recovery and additional consortium submission are permitted. See Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366, 370[4] (Mo.App.1974); M.A.I. 33.03 Notes on Use (Supplemental); Illustrative Instructions M.A.I. 35.06 No. 6 and 35.05 No. 5.

Respondents’ modifications of M.A.I. 33.-03(5) by changing “plaintiff” and “defendant” to the plural form constitute prejudicial error and misdirection. S.Ct.Rule 70.-01(c), (f). By misstating the essential elements of plaintiff Cecil Long’s case, Instruction No. 5 requires the jury to believe more facts and elements than are essential to his recovery and is thereby confusing, misleading, erroneous and constitutes reversible error.

The judgment is reversed and the cause remanded for a new trial upon the plaintiffs’ causes of action only since no appeal was taken by defendants from the adverse judgment on their counterclaims.

All concur.

      . This appeal is from the judgment in the second trial of this case.


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James HAYNES, Defendant-Appellant.
    No. 39458.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 3, 1978.
    Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael Finkelstein, Erie Martin, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant was convicted on two counts of armed robbery. He bases his appeal both on the trial court’s refusal to give a non MAI-CR cautionary instruction on identification and on its overruling of an objection going to the relevancy of certain cross-examination of the defendant. We affirm.

Defendant and a companion, Edgar Fut-rell, held up the Wagner Furniture Company store in south St. Louis. Defendant brandished a shotgun and Futrell a pistol as they ordered the store’s owner to empty the safe. They took a wallet containing $400 from one of the store employees then ordered him, 3 co-workers and the store’s owner into the basement. Defendant and Futrell made off with several thousand dollars in currency and jewelry, including numerous watches and rings utilized by the store in sales promotions. Defendant was positively identified in police lineups and in court as one of the two robbers. At trial, defendant took the stand to present the alibi that he was elsewhere at the time of the robbery. During the prosecutor’s cross-examination, defendant was asked the following:

“Q. You know the Pearson brothers?
A. Yes, I do.
Q. What are their names, Hosea Pearson?
A. Hosea, Carl, Larry, Dwayne.
Q. That Sunday night, did you go over to meet with Larry and Hosea Pearson?
A. No.
Q. Ever over at their house? One of them is married.
A. I have been over to Larry’s house before, yes, I have.
Q. Weren’t you over at Larry’s house that Sunday night with Edgar Fut-rell?
A. Over to Larry’s house?
Q. Yes.
A. No, I wasn’t.
Q. Hosea’s House?
A. No.
* * * * sjc *
Q. Had the Pearson brothers worked for Wagner Furniture Company?
A. Yes, they had.
Q. In fact, was one of them working for Wagner Furniture Company just a week or so prior to this robbery taking place?
A. I couldn’t say.
MR. WEBB: [Defendant’s counsel] I object to that as irrelevant and immaterial.”

The objection was overruled. A limited number of questions were further asked of the defendant concerning whether he had ever been at either of the Pearsons’ homes near the time of the robbery. Defendant’s answers to the inquiries were in the negative, and no objections were made. However, the trial court on its own initiative halted the prosecutor’s interrogation regarding defendant’s ownership of a gun.

On appeal, defendant contends that a mistrial should have been granted based upon the above quoted interrogation, and alleges the creation of an improper, unsubstantiated inference that he had planned the robbery with the Pearsons. There are a number of reasons for finding no merit to defendant’s contentions, but one is sufficient. The trial court is vested with substantial discretion in controlling the extent and scope of the cross-examination. State v. Roberson, 548 S.W.2d 280 (Mo.App.1977). We can find no abuse of discretion in allowing the questions here. First, most of the questions were answered in the negative, eliminating any possible prejudice to defendant. State v. Butler, 549 S.W.2d 578 (Mo.App.1977). Further, considering the limited number and scope of the questions asked, it is impossible for us to say that the substance of the interrogation was so plain or obvious that the jury could readily infer the unsubstantiated fact that defendant had plotted the robbery with the Pearsons. The trial court did not abuse its discretion in overruling defendant’s objection or failing to take the drastic action of mistrial requested by defendant. State v. Carlos, 549 S.W. 330 (Mo. banc 1977); State v. Key, 557 S.W.2d 696 (Mo.App.1977).

Defendant’s second point of alleged error relates to the trial court’s refusal to give his submitted non MAI-CR instruction on identification. The trial court did not err by its refusal. State v. Peterson, 546 S.W.2d 175 (Mo.App.1976), is precisely on point to the issue in this case. In Peterson, an instruction similar to that submitted by defendant was held to be cautionary and its refusal was not an abuse of discretion or error where the court, as here, had already given the proper MAI-CR instructions on the subject, including burden of proof and elements of the offense. In Peterson, it was specifically held that MAI-CR 3.20, also submitted in this case, gave sufficient instruction on identification, and defendant’s cautionary identification instruction— similar to that offered by defendant here— was needlessly redundant. So, too, for the reasons in State v. Peterson, supra, we find no abuse of discretion or error in the trial court’s refusal to submit defendant’s cautionary identification instruction.

Judgment affirmed.

KELLY and REINHARD, JJ., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmy Dale CHAMPION, Defendant-Appellant.
    No. 10911.
    Missouri Court of Appeals, Springfield District, Division Three.
    Oct. 16, 1978.
    Motion for Rehearing and Transfer Denied Oct. 30, 1978.
    John D. Ashcroft, Atty. Gen., Gregory Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.
   BILLINGS, Chief Judge.

Appellant Jimmy Dale Champion lodged this appeal from the order of the Circuit Court of Dunklin County revoking his probation.

The right of appeal is statutory in this state and § 549.141, RSMo 1969, bars our review by direct appeal of the revocation of appellant’s probation. State v. Wilmoth, 520 S.W.2d 185 (Mo.App.1975). We cannot give prospective effect to the repeal of this statute, effective January 1, 1979. Laws 1977, p.-, S.B. No. 60, § 1.

Appellant is confined in the state penitentiary, beyond our territorial jurisdiction, and we cannot treat his appeal as an original application for a writ of habeas corpus as requested by his counsel.

We have no jurisdiction and the appeal is dismissed.

HOGAN and FLANIGAN, JJ., concur.


author: TITUS, Judge.

text:
    Carolyn Jean PATTON, Plaintiff-Respondent, v. William Ross PATTON, Defendant, Home Insurance Company, Garnishee-Appellant.
    No. 10337.
    Missouri Court of Appeals, Springfield District.
    Oct. 24, 1978.
    J. R. Victor, Republic, Loren R. Honecker, Springfield, for plaintiff-respondent.
    Raymond E. Whiteaker, David L. Smith, Woolsey, Fisher, Clark, Whiteaker & Sten-ger, Springfield, for garnishee-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

In a dissolution of marriage action, the Circuit Court of Greene County, Missouri, ordered William to pay Carolyn certain monies for temporary support and medical expenses. William became delinquent. On February 18, 1975, while employed in Wichita, Kansas, William sustained an injury which obligated his employer and its insurer, Home Insurance Company, to pay him benefits under the workmen’s compensation law of Kansas. Carolyn caused the issuance of a writ of garnishment in aid of execution which was served upon Home on June 25, 1975, via the Missouri Director of Insurance. The garnishment on execution seized and attached in Home’s “hands all debts due or to become due by you to William . . or so much thereof as will be sufficient to satisfy the sum of” $1,167.79. Sixteen days after it had been served with summons or on July 11, 1975, Home paid William $2,923.50 pursuant to a settlement agreement regarding the workmen’s compensation claim. Thereafter and subsequent to due proceedings, the circuit court in Missouri rendered judgment for Carolyn against garnishee Home in the sum of $1,167.79, together with 6% interest from June 25, 1975, and costs. Home appealed.

Mislabeled “Points and Authorities” [Rule 84.04(a) and (d)], Home’s first point relied on is that the trial court erred in entering judgment against it because the court did not have jurisdiction of the subject matter as there was no service of the writ upon William and the writ “did not affirmatively show the place where [William] resided and the place where the debt was contracted and the cause of action arose,” all as required by §§ 525.290 and 525.300 and Rules 90.28 and 90.29. The argument portion of Home’s brief is inlro-duced by the incommensurable declaration that the garnishment of workmen’s compensation benefits due William “amounted to a garnishment of wages and therefore the action was controlled by” the just cited statutes and rules. However, when § 44-501 et seq., Kansas Statutes Annotated, and § 287.010, et seq., of the Missouri law are read in toto, it is readily apparent the legislative enactments permitting specific and limited compensation recoveries to workmen and their dependents for medical services, death, burial expenses, scheduled injuries, hernias, miscellaneous disabilities, et cetera, cannot logically be equated to wages or the stipend paid for the rendition of services. State v. Weatherby, 350 Mo. 741, 744, 168 S.W.2d 1048, 1049[1] (banc 1943); Lotz v. Missouri Distributing Company, 387 S.W.2d 179, 185[6] (Mo.App.1965). Neither are we enamored with nor engulfed by Home’s asseverations anent the applicability of §§ 525.290 and 525.300 or Rules 90.28 and 90.29. These statutes and rules govern garnishment of wages in aid of attachment. As already shown, Carolyn was not after wages; neither did she seek garnishment in aid of attachment. Rather, she sought the workmen’s compensation obligation of Home to William via garnishment in aid of execution. Consequently, the statutes and rules upon which Home relies are not applicable here. Beneficial Fin. Co. of Houston v. Yellow Transit Freight Lines, Inc., 450 S.W.2d 222, 226[4] (Mo.App.1969); 99 C.J.S. Workmen’s Compensation § 1, at p. 33 and § 8, pp. 53-54.

Home’s second and last point relied on is that the trial court erred in entering judgment against it because the workmen’s compensation benefits owed to William were exempt from attachment or execution or garnishment under either Missouri or Kansas law. In this respect, we are dealing with two Missouri and one Kansas statutes, to wit:

Missouri — § 287.260: “The [workmen’s] compensation payable under this chapter . shall be exempt from attachment, garnishment, and execution, shall not be subject to setoff or counterclaim, or be in any way liable for any debt . . . § 452.140: “No property shall be exempt from attachment or execution in a proceeding instituted by a married woman for maintenance, nor from attachment or execution upon a judgment or order issued to enforce a decree for alimony or for the support and maintenance of children. . . . ”
Kansas — § 44-514: “No claim for [workmen’s] compensation . . . shall be assignable or subject to levy, execution, attachment, garnishment, or any other remedy or procedure for the recovery or collection of a debt . . .

In construing Missouri § 287.260 and Kansas § 44-514 with Missouri § 452.140, we must ascertain and give effect to the intention of the legislature from the words used in the statutes and adopt that sense which best harmonizes with the context thereof and promotes in the fullest measure the apparent policy and objects of the legislature. Pugh v. St. Louis Police Relief Ass’n, 237 Mo.App. 922, 935-936, 179 S.W.2d 927, 934—935[11] (1944). A reading of various exemption statutes, including §§ 287.-260 and 452.140, supra, serves to demonstrate a consistent legislative scheme to provide for family needs. By allowing exemptions from executions or attachment, the legislature has repeatedly evidenced a studied undertaking to insure, as far as practicable, against want on the part of the family as a unit and on the part of wives and dependent children when the unit has been broken by death, divorce or separation. The obvious undertaking is to protect the family or dependent members thereof from creditors in general. E. g., § 287.260, supra (workmen’s compensation); § 452.140, supra (married woman’s action for maintenance and child support); §§ 87.090, 87.365 and 87.485 (firemen’s pension funds); §§ 513.-435, 513.440 and 513.450 (head of family exemptions).

In the early case of Anderson v. Norvell-Shapleigh Hardware Co., 134 Mo.App. 188, 192, 113 S.W. 733, 735[2, 3] (1908), it was held that § 452.140 (execution by married woman for maintenance) and the statute providing for a head-of-the-family exemption, were not repugnant nor inconsistent and that the wife was entitled to execution against the garnishee without exemption. To similar effect are cases ruling that a wife may attach or execute on a husband’s pension fund or retirement allowance under § 452.140 notwithstanding provisions prohibiting assignment or garnishment. Taylor v. Taylor, 474 S.W.2d 859, 861[3] (Mo.App.1971); Geiwitz v. Geiwitz, 473 S.W.2d 781, 785—786[5] (Mo.App.1971); Pugh v. St. Louis Police Relief Ass’n, supra, 179 S.W.2d at 934-936[12]. See also, Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131, 133-134 (1973) where it was ruled that the statutory provision exempting benefits under the Kansas Public Employees Retirement System from execution, garnishment or attachment, was not applicable when in conflict with enforcement, via garnishment, of a decree or claim for child support.

Singly reading § 287.260 and Kansas § 44-514 admits a conclusion of their absolute application. However, when these laws are viewed compatibly with the obvious aims and purposes of § 452.140, there remains little or no reason why dependent wives and children should be classified with general creditors and excluded from executing on workmen’s compensation payments which, in part at least, were designed for their benefit. “The legislature was concerned about the care and support of the injured workman and his dependent family; for this reason the workmen’s compensation system was created. This being so, it is illogical to think that the benefits of the Act were intended to be withheld from the dependents of an injured workman who refuses to accept the legal obligation to support them.” Calvin v. Calvin, 6 Or.App. 572, 487 P.2d 1164, 1166[3, 4] (1971). Also: “It would indeed be anomalous to hold that by reason of the exemption from claims of creditors as provided in the foregoing section [§ 287.260], the injured employee could avoid his obligation to support and maintain his wife and children when in fact the exemption was to assure them, as well as the husband, the necessities of life during his disability.” Commons v. Bragg, 183 Okl. 122, 80 P.2d 287, 290[2] (1938). To like effect see: Hughes v. Hughes, 132 N.J.Super. 559, 334 A.2d 379, 381[4] (1975); Steller v. Steller, 97 N.J.Super. 493, 235 A.2d 476, 479[1] (1967); 2 Larson’s Workmen’s Compensation Law, § 58.40, at p. 10-261; An-not: Exemption — Claim for Alimony, Workmen’s compensation payments, 54 A.L. R.2d 1422, § 6[f], p. 1435.

The judgment is affirmed.

All concur.

      . Unspecified references to rules and statutes are to Missouri Supreme Court Rules, V.A. M.R., and Revised Statutes of Missouri, V.A. M.S.

      . Neither we nor the parties hereto have been able to find a Kansas statute comparable to § 452.140, supra.


author: GUNN, Judge.

text:
    Gilbert CAGE, Appellant, v. STATE of Missouri, Respondent.
    No. 39638.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 24, 1978.

      Devereaux & Stokes, Michael D. Stokes, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Dean R. Hoag, Asst. Circuit Atty., St. Louis, for respondent.
   GUNN, Judge.

In this Rule 27.26 appeal, movant claims ineffective assistance of counsel by reason of his trial attorney’s failure to call and investigate alibi witnesses. We find no merit to movant’s contentions and affirm the denial of his Rule 27.26 motion.

Movant was convicted of armed robbery. He claims that his trial counsel failed to interview three prospective alibi witnesses or put them on the stand; that he was thereby deprived of effective assistance of counsel. Movant’s contentions were completely refuted by his trial counsel at the Rule 27.26 hearing. And, of course, it is the trial court’s prerogative to resolve the conflict of testimony in favor of the trial counsel. Williams v. State, 550 S.W.2d 821 (Mo.App.1977); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976). Movant’s trial counsel testified that he had investigated each of the three witnesses; that two of them were not in favor of testifying favorably for movant; and that the third could not have honestly placed himself with mov-ant at the time of the crime without perjuring himself. As a result of the investigation, movant’s trial counsel was of the opinion that placing any of the witnesses on the stand would have been detrimental to mov-ant’s cause. After discussion with movant, it was agreed that the best strategy would be not to call the witnesses. “The determination of which witnesses to call and how best to defend the case is a matter of trial strategy.” Taylor v. State, 548 S.W.2d 288, 290 (Mo.App.1977). We do not find the trial counsel’s action in failing to call the aforementioned witnesses in any way deprived movant of effective assistance of counsel or fair trial. Williams v. State, 536 S.W.2d 190 (Mo.App.1976).

Movant also argues that his trial counsel failed to investigate the fact that the State’s key witness was a drug addict. But movant’s trial counsel’s testimony belies that fact. Further, the opinion in the appeal of movant’s conviction—State v. Cage, 538 S.W.2d 343 (Mo.App.1976)—establishes that movant’s counsel had thoroughly delved into the matter of the victim’s narcotic habits. There is absolutely no merit to movant’s argument in this regard.

Affirmed.

REINHARD, P. J., and CLEMENS, J., concur.