author: ELLIS, Chief Judge.

text:
    Robert COOPER, dba Amarillo Aeration & Temperature Co., Appellant, v. KRUSE-REED, INC., Appellee.
    No. 8753.
    Court of Civil Appeals of Texas, Amarillo.
    July 18, 1977.

      Folley, Snodgrass & Calhoun, 0. M. Calhoun, Amarillo, for appellant.
    La Font, Tunnell, Formby, La Font & Hamilton, Thomas E. Hamilton, Plainview, for appellee.
   ELLIS, Chief Judge.

Kruse-Reed, Inc. brought this action for damages based on an alleged breach of contract for the sale and installation of a grain dryer against Robert Cooper, d/b/a Amarillo Aeration & Temperature Co. Cooper denied breaching the agreement and counterclaimed against Kruse-Reed for an alleged anticipatory breach and for damages based on anticipated profits. Judgment was rendered on a jury verdict favorable to Kruse-Reed. In his appeal, Cooper has challenged the evidentiary support for the jury’s finding of breach and the damages assessed against him. We have concluded that sufficient evidence of probative force was submitted to support the jury’s findings as to breach and for the determination of the damages sustained. Affirmed.

Kruse-Reed, Inc., is a general construction contractor with James Kruse and L. F. Reed each owning 50% of the stock in the corporation. During the summer of 1973, it let subcontracts to Cooper for installation of grain dryers at two jobsites. One of these was at Hart Camp, Texas; the other was at Hill Feedlot in Dimmitt, Texas. The Hill Feedlot contract is the agreement primarily involved in this suit.

The Hill Feedlot contract called for construction of a 550 column dryer rated at 1500 bushels per hour. The dryer was to be delivered, wired and plumbed “as soon as possible.” Payment terms were 80% upon delivery of the dryer to the jobsite, 20% upon completion. The agreed price was $36,500.00. The contract was confirmed in writing and the confirmation was signed on August 21,1973. On that day, the concrete had been poured to meet the specifications of the dryer ordered. The parties apparently had contemplated that the dryer would be installed that fall, but Cooper failed to do so. On May 24, 1974, Cooper notified Kruse-Reed of his refusal to erect the dryer.

The project was completed without Cooper’s dryer. Kruse-Reed purchased a substitute dryer in Saginaw, Michigan, and transported it to the Hill Feedlot. This suit for breach of contract was instituted in December, 1974, and tried to a jury in April, 1976. Both contracting parties claimed damages for the other’s alleged breach.

The jury found that Cooper had breached the contract and assessed Kruse-Reed’s damages at $19,200.00. L. F. Reed was found not to have stated that he was not “putting any more money into the construction of the Hill Feedlot job. At the trial, Cooper had claimed that Reed had made this statement and that such statement constituted a repudiation of the contract. The jury found that Cooper was entitled to no damages. Judgment for Kruse-Reed was rendered for the amount of the verdict plus prejudgment interest from May 24,1974. Cooper has appealed on four points of error.

In his first point, Cooper contends that the evidence produced was legally and factually insufficient to sustain a finding that he breached the contract. In his second point, Cooper contends that the jury’s finding, in response to special issue 2, that L. H. Reed did not state that he was not “putting any more money” into the Hill Feedlot job is against the great weight and preponderance of the evidence. The statement was alleged to have been made on September 4, 1973, when Cooper sent Hines, his agent, to present Kruse-Reed with an invoice on the Hart Camp job. According to Hines, Reed reacted by stating unequivocally that “he was not going to put anymore (sic) money” into the Hill Feedlot job. Reed testified that he told Hines that “until Jim Kruse got out of the hospital there wasn’t going to be anything done.” According to Reed, he did tell Hines, in effect, that he would not pay the bill then, but would defer payment until Jim Kruse had authorized the payment. Reed also testified that he was referring only to the Hart Camp job when he had this conference with Hines.

The evidence showed that in August, 1973, the parties contracted for a dryer to be erected “as soon as possible” at the Hill Feedlot job. Cooper argues that on September 4, 1973, he was prepared to deliver the dryer and L. H. Reed was informed of this fact. Cooper contends that Reed had refused to put any more money into the job. Cooper has taken the position that his readiness to perform constituted an offer or an attempt to perform and that Reed’s alleged refusal to pay frustrated his efforts to comply with the terms of the contract, i. e., to deliver “as soon as possible.” According to Cooper, Kruse-Reed should not be allowed to recover damages because Cooper’s performance was rendered impossible by Reed’s alleged refusal to pay. In our opinion, the evidence does not establish that Cooper was frustrated or impeded in any attempt to perform the contract.

The dryer was to have been installed in September or October, 1973. In September, Kruse notified Cooper he was ready for delivery of the dryer. Cooper informed Kruse that he was having trouble getting perforated metal for screens to be used in the dryer. Also, Cooper contended he could not install the dryer because Kruse-Reed had equipment and material at the jobsite which would interfere with the installation of the dryer, while Kruse-Reed contended that the material and equipment would not interfere with the installation. After October 5, however, nothing at the jobsite would have impeded Cooper’s work, and Kruse-Reed repeatedly urged Cooper to install the dryer. After it became obvious that the dryer would not be installed in time to dry the 1973 corn harvest, Cooper was told that he could erect the dryer in his spare time during 1974. Cooper apparently acquiesced in these terms because he did not protest them in any conversations he had with Kruse during the early part of 1974. Finally on May 24, 1974, Cooper advised Reed of his absolute refusal to erect the dryer. Cooper did not erect the dryer and Kruse-Reed purchased another dryer elsewhere. In our opinion, there is sufficient evidence of probative force to support the jury finding that Cooper breached the contract. Point 1 is overruled.

With respect to the second point, there was conflicting testimony concerning Reed’s conversation with Hines regarding the matter of the plaintiff’s plans to put more money into the Hill Feedlot job. The jury could have believed Hines’ version that Reed unequivocally refused to put more money into the Hill Feedlot job. Alternatively, the jury could have believed Reed’s representation to the effect he refused to pay Cooper’s bill only until Jim Kruse got out of the hospital to inspect the materials and the job as was customary in their method of conducting the business. The jury could also have believed Reed when he testified that his statements concerned only the Hart Camp job. In our opinion, the finding that Reed did not make the statement that he was not “putting any more money” into the construction of the Hill Feedlot job is not against the great weight and preponderance of the evidence. Point 2 is overruled.

In his third and fourth points, Cooper has argued that the evidence was legally and factually insufficient to support submission of the damage issue to the jury or to support the jury’s finding on that issue. The damage issue was submitted in the following form:

“SPECIAL ISSUE NO. _4
“What sum of money, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Kruse-Reed, Inc. for the damages sustained by it, if any, as a result of the breach of contract, if any, by Robert Cooper?
“Answer in Dollars and Cents.
“ANSWER: $_
“You are instructed that the amount of damages, if any, sustained by Kruse-Reed, Inc. is the difference between the contract price and the reasonable and necessary actual expense incurred by Kruse-Reed, Inc. to purchase and erect a grain dryer at the Hill Feedlot in compliance with the terms of the contract entered into between the parties.”

The jury answered: $19,200.00.

The evidence established the contract price of the dryer to be $36,500.00. Records and testimony from Jim Kruse established that Kruse-Reed purchased a substitute dryer and installed it for $74,924.90. Kruse testified that this amount (broken down into various component costs) was reasonable and necessary. Also admitted into evidence was the fact that, just prior to his May 24, 1974 repudiation, Cooper had contracted to sell a similar dryer for a substantially higher price than he charged Kruse-Reed.

In his discussion of points 3 and 4, Cooper has contended that the measure of damages in this case should have been the difference between the contract price of the dryer and the market value of the dryer at the time and place of breach. However, Cooper neither requested other instructions nor objected to the charge as submitted. Because no objection was made, any complaint as to the measure of damages submitted was waived. Tex.R.Civ.P. 272, 274, 279; Stuckey v. Union Mortgage & Investment Company, 383 S.W.2d 429 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.). Furthermore, even assuming the complaint had not been waived, it would not be well founded. The correct measure of damages should have compensated Kruse-Reed for the reasonable cost of substitute goods actually purchased less the contract price. Tex.Bus. & Comm.Code Ann. § 2.712 (1968). The evidence shows that the purchase of the substitute dryer and additional expenses incident to the installation of the equipment was made necessary as a result of the failure of Cooper to install the dryer as agreed. In our opinion, under the circumstances of this case, a correct measure of damages was employed and we find no reversible error with respect to the issue submitted and the instructions given to the jury for its guidance in determining the damages sustained by Kruse-Reed.

Cooper had also argued that the contract called for a used dryer and the one purchased as a substitute was a new dryer. In his brief, Cooper has admitted that the written contract did not expressly call for a used dryer, but he testified that the dryer was, in fact, to be a used dryer. Cooper has argued that Kruse-Reed had notice that he only sold used dryers and therefore, the contract must have been for a used dryer. Cooper admitted, however, that he built and installed new dryers as well as used ones. James Kruse testified that the August 21, 1973 contract was for a “new dryer.” The jury was entitled to believe Kruse over Cooper and his testimony supports the finding that the parties anticipated the furnishing of a new dryer.

As part of his discussion under points 3 and 4, Cooper has argued that the new dryer purchased was different from the one he contracted to sell. The testimony, however, indicated that the substitute dryer was very similar to the one Cooper had contracted to sell. The dryers had the same capacity and similar components. Even though the substitute dryer required a different concrete slab, this was not so great a difference as to make the substitute purchase unreasonable. The testimony showed that Kruse-Reed was laboring under a strict time-restraint; the dryer had to be installed in time for use on the 1974 harvest. According to the evidence, the dryer purchased represented the best value available on short order.

Lastly, Cooper has questioned the qualifications of James Kruse to testify as to the reasonableness of the cost of the substitute dryer. The determination as to whether a witness is qualified to testify rests within the discretion of the trial court and its decision will not be overturned except upon showing an abuse of discretion. Hodges v. State, 403 S.W.2d 207 (Tex.Civ.App.—Texarkana 1966, writ ref’d n. r. e.). In the case before us, Kruse testified that he had been in the dryer installation and related businesses for many years. He testified that he was familiar with the fair market values of dryers in Castro County. In our opinion, the trial court did not abuse its discretion in admitting his testimony.

In the light of the foregoing, it is our opinion that there was sufficient evidence of probative force for the jury to ascertain the damages sustained by the plaintiff and to support the jury’s findings as to the amount of such damages. Points 3 and 4 are overruled.

For the reasons above stated, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ELLIS, Chief Justice.

license: Public Domain

text:
    In the Matter of the MARRIAGE OF Lillian C. GONGWER and Louis F. Gongwer.
    No. 8758.
    Court of Civil Appeals of Texas, Amarillo.
    July 18, 1977.
    Rehearing Denied Aug. 15, 1977.

      Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for appellant. Charles L. Ballman, Borger, for appellee.
   ELLIS, Chief Justice.

In this appeal, Lillian C. Gongwer has challenged that portion of the trial court’s divorce decree declaring 43.596729% of a retirement profit sharing trust as the separate property of Louis F. Gongwer. This percentage represented the ratio of the number of his years of employment before the marriage to the total number of his years of employment when he retired. We affirm the judgment of the trial court.

Louis F. Gongwer began working for J. M. Huber Corporation on September, 1945. He remained employed by Huber and was working for that company on January 2, 1959, when he married Lillian Gongwer. On August 31, 1975, Louis retired from Huber after 30 years of employment by the company. A little less than one year later, on June 16, 1976, Lillian and Louis were divorced.

During the years he worked for Huber, Louis participated in the Huber Profit Sharing Trust. This was one of Huber’s retirement plans, and Louis’ interest in the plan accumulated for 13 years, 4 months before he married, and 16 years, 8 months afterward. At the trial, however, Louis was unable to produce evidence of the specific amounts of money which had accrued in the trust fund before and during his marriage. In dividing the marital property, the trial court found that 43.596729% of the $124,624.60 accumulated in the trust fund was Louis’ separate property. The remaining 56.40328% was found to belong to the community estate. Accordingly, all Profit Sharing Trust proceeds received since the date of the hearing were ordered to be divided as follows: 43.596729% to Louis as his separate property, 28.20164% to Louis as his share of the community interest, and 28.20164% to Lillian as her lh share of the community interest. In supplemental findings, the court indicated that it would have divided the fund equally had it found that the entire fund was community property.

By two points of error, Lillian contends in her appeal that the evidence is (1) legally and (2) factually insufficient to support the trial court’s finding that 43.596729% of the Profit Sharing Trust fund and benefits are Louis’ separate property.

Interests in matured retirement plans and the benefits from these interests have been held to constitute property. Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965). If the retirement benefits were earned by either spouse during the marital relationship, they are part of the community estate and subject to division upon dissolution of the marriage even though the benefits may not have matured or become “vested” and are only contingency property rights at the time of the divorce. Cearley v. Cearley, 544 S.W.2d 661, 662 (Tex.1976). That portion of the benefits attributable to earnings accrued before marriage should be characterized as separate property. In Re Marriage of Rister, 512 S.W.2d 72 (Tex.Civ.App.-Amarillo 1974, no writ).

The trial court determined the community estate’s share in the retirement fund as a fraction equal to the number of months Louis contributed to the fund while married divided by the total number of months Louis worked for the company. Thus, 56.40328% (200 months worked while married/360 total months worked) was held to be the community’s interest in the fund and benefits. The remaining 43.596729% (160 months worked before marriage/360 total months worked) was adjudged Louis separate property interest in the fund. It is Lillian’s position that the method used to apportion the benefits between Louis’ separate estate and the community estate is improper and that Louis should have been required to trace the actual contributions to the fund he made before marriage to establish the extent of his separate property interest in the trust fund.

Although decisions rendered on the subject of division of retirement benefits, both military and private, have demonstrated varying results, a recent determination and guideline in this area is set out in the case of Cearley v. Cearley, supra, wherein the Texas Supreme Court affirmed a trial court’s decision recognizing non-vested military retirement benefits as property, and making the adjudication that the wife in that case was entitled to one-half of the proportion of the benefits acquired during marriage (the ratio of years of marriage to the years of service). Following the same method for apportioning benefits in a divorce case involving unvested military retirement benefits is Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). Also see: Busby v. Busby, 457 S.W.2d 551 (Tex.1970). Other cases have approved the use of this method in cases involving private retirement plans. In Re Marriage of Rister, supra; Angott v. Angott, 462 S.W.2d 73 (Tex.Civ.App.-Waco 1970, no writ). This apportionment theory for determining community and separate interests in retirement benefits upon dissolution of the marriage has been said to do “substantial justice in determining the extent of a community-property interest which has vested during the marriage.” Dessommes v. Dessommes, 505 S.W.2d 673, 681 (Tex.Civ.App.-Dallas 1975, writ ref’d n. r. e.). Also, see authorities therein cited. In our opinion, the case at bar is not distinguishable in any significant respect from those above cited wherein the apportionment theory was employed to determine the parties’ interests.

We have concluded that the trial court’s division and award of the retirement benefits in the instant case is sufficiently supported by the evidence, and no abuse of discretion has been established with respect to the trial court’s judgment which was explicitly directed to the making of fair and just division of the property. Points 1 and 2 are overruled.

For the reasons above stated, the judgment of the trial court is affirmed.

      . Although Louis testified that he contributed a particular sum of $7,000 to the trust fund prior to the marriage, he did not demonstrate an accounting of such sum and any specific acera-als thereto to establish that the same had not become commingled with community contributions made to the trust fund.


author: SHANNON, Justice.

text:
    George MORALES, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 12600.
    Court of Civil Appeals of Texas, Austin.
    July 20, 1977.
    Rehearing Denied Aug. 10, 1977.

      John E. Serna, Southers, Goldberg & Lyons, Inc., San Antonio, for appellant.
    Joan Burklin, Clark, Thomas, Winters & Shapiro, Austin, for appellee.
   SHANNON, Justice.

This is a workmen’s compensation appeal in which the issue concerns construction of the workmen’s pleading of injury. George Morales is appellant, and Texas Employers Insurance Company is appellee. After trial to a jury, the district court of Travis County entered a take nothing judgment. We will reverse that judgment.

The case was submitted to the jury by fourteen special issues. Appellee objected to the submission of special issues six through fourteen. Those issues submitted inquiry as to a specific injury to Morales’ right knee. The basis for appellee’s objection was that Morales pleaded only a general injury, and not a specific injury. The district court overruled appellee’s objection and submitted the specific injury issues to the jury.

The answers to the court’s charge are summarized as follows. The jury failed to find that Morales sustained an injury to his back on January 14, 1975. The jury answered appellee’s defensive issue that the injury sustained by Morales on January 14, 1975 was confined to his right knee. By their responses to special issues six through fourteen, the jury found that the injury to Morales’ right knee was the producing cause of a temporary total loss of use of his right leg for a period of twenty-one weeks and that the knee injury was the producing cause of a permanent partial loss of use of Morales’ right leg beginning June 11, 1975. Finally, the jury answered that Morales sustained a thirty-five per cent loss of use of his right leg.

Morales moved for judgment based upon the jury’s answers to special issues six through fourteen. The district court overruled the motion and instead, entered judgment that Morales take nothing. By entering the take nothing judgment, the district court necessarily concluded that it should have sustained appellee’s objection to the submission of special issues six through fourteen for the reason that Morales failed to plead a specific injury.

The task before this Court involves an examination of Morales’ petition. If Morales pleaded specific injury, he was entitled to judgment, and the judgment of the district court will be reversed.' If Morales did not plead specific injury the district court correctly entered judgment for appel-lee.

Morales’ pleading is set out below.

“Because Plaintiff has not had medical training, Plaintiff is unable to describe his injuries in exact medical language, and thus Plaintiff says that in regard to his injuries, Plaintiff was injured in the course of his employment when a ditch caved in, causing him to fall backwards and covering his knees, injuring his right knee, back and general health and resulting in imbalance of the back from limping on the knee, causing or contributing to cause incapacity to work, and loss of the use of the leg, concurrently, for an amount of compensation in excess of $1,000.00.”

Appellee claims that Morales’ pleading alleges no more than that the injury to the right knee extended to or affected other parts of the body, thereby resulting in a general injury. Appellee then urges, correctly so, that specific injury must be pleaded before the workman is entitled to a submission of specific injury. Banks v. Mil lers Mutual Fire Ins. Co. of Texas, 476 S.W.2d 768 (Tex.Civ.App.1972, no writ).

Generally, pleadings will be construed in favor of the pleader. The court will look to the pleader’s intendment and the pleadings will be sustained even if some element of a cause of action has not been specifically alleged. Every fact will be supplied that can be inferred reasonably from what was stated. Gulf, Colorado & Sante Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.1963), Smith v. Ortman-McCain Co., 437 S.W.2d 515 (Tex.Civ.App.1976, writ ref’d n. r. e.).

We have quoted from Morales’ petition. Although the quoted material from the petition is hardly a model plea, we are of the opinion that, in the absence of special exceptions, Morales pleaded specific injury to the right knee.

The judgment is reversed and the cause is remanded to the district court for entry of judgment for Morales in the sum as computed upon the basis of the answers of the jury less the amount of compensation previously paid by appellee and for the allowance of attorney’s fees.


author: McKay, Justice.

text:
    The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Ralph Michael MARTIN, Administrator, Appellee.
    No. 1028.
    Court of Civil Appeals of Texas, Tyler.
    July 21, 1977.
    Rehearing Denied Aug. 11, 1977.
    Jesse M. DeWare, IV, Lawrence & Lawrence, Tyler, for appellant.
    R. L. Whitehead, Jr., Whitehead & Beck-worth, Longview, for appellee.
   McKay, Justice.

This case involves the question of whether a “camper special” pickup truck comes within the meaning of “automobile” included in the vehicle accident provision of a life insurance policy. Appellee brought suit as administrator of the Estates of Leon Ralph Martin and Mary Jo Martin, deceased, against appellant seeking to recover additional benefits based upon certain provisions relating to vehicle accidents found in the life insurance policies of the two deceased. Trial was before the court who rendered judgment for appellee. The court upon request of appellant made the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

“1. The Defendant issued a policy of insurance to Mary J. Martin, policy number 9817187, effective February 22, 1968.

“2. The Defendant issued a policy of insurance to Leon R. Martin, policy number 9818614, effective March 1, 1968.

“3. Each policy provided benefits in the event of accidental death of the above named persons.

“4. Each policy provided for coverage in addition to the face amount for vehicle accidents.

“5. Such additional coverage was in the total amount of $6,000.00.

“6. Each of the policies were in full force and effect on December 25, 1975.

“7. Leon Martin and Mary J. Martin died on December 25, 1975, and December 28, 1975, respectively, as a result of injuries received in a vehicle accident which occurred on December 25, 1975.

“8. At the time of receiving such injuries Leon Martin and Martin [sic] J. Martin were not driving or riding in an automobile while it was racing, drag racing or in willful violation of any traffic law or ordinance.

“9. All prerequisites of the insurance contracts and of the law were complied with by Plaintiff to collect the proceeds of the policies.

“10. Defendant, though demand was made, refused to make payment of the vehicle accident benefits under such insurance policies.

“11. The vehicle in question was not used by the Martins for any purpose other than pleasure.

“12. As applied to the vehicle in which Leon Martin and Mary J. Martin were riding at the time they received the injuries causing their death, the language of the insurance policies which provided that ‘automobile shall mean a four-wheel passenger motor vehicle exclusively of the pleasure car type, not operated by the insured for hire’ is ambiguous.

“12. [sic] A reasonable attorney’s fee for the legal representation of Plaintiff at the trial court stage of the proceedings is $2,000.00.

“13. A reasonable attorney’s fee for the legal representation of Plaintiff in the event of an appeal to the Court of Civil Appeals is the additional sum of $400.00.

“14. A reasonable attorney’s fee for the legal representation of Plaintiff in the event of an appeal to the Supreme Court of Texas is the additional sum of $600.00.”

CONCLUSIONS OF LAW

“1. The language of the policies in question being ambiguous it is to be construed most favorably toward the Plaintiff.

“2. Plaintiff therefore is entitled to recover the amount of the amount of the vehicle benefit, statutory penalty, and reasonable attorney’s fee.”

Upon further request of appellant the court made the following Additional Findings of Fact:

“1. Leon Martin and Mary J. Martin were riding in a 1968 camper special Ford pickup truck on December 25, 1975, when they received the injuries which resulted in their deaths.

“2. Attachment ‘A’ and Attachment ‘B’ to the Answers To Interrogatories filed herein are true copies of The National Life and Accident Insurance Co. policies Nos. 9817187 and 9818614 providing life insurance coverage on the lives of Mary J. Martin and Leon R. Martin.”

Appellant brings one point of error on this appeal: “The Trial Court erred in determining that a pickup truck was an automobile vehicle as defined in each life insurance policy and thereby erred in allowing recovery for the additional death benefit for a vehicle accident.” Appellant contends that as a matter of law the pickup truck in question did not come within the meaning of the vehicle accident provisions of the policy.

The record shows that Leon Ralph Martin and Mary Jo Martin died as a result of injuries received the them in a highway collision while riding in a 1968 F-250 three-quarter ton “camper special” Ford pickup truck. The life insurance policies on each of the deceased provided for “Additional Accidental Means Death Benefits” of $3,000 by “Non-Vehicle Accident” and $6,000 by “Vehicle Accident.” Both policies further provided in part as follows:

“Vehicle Accident. The Vehicle Accident Benefit shall be payable in lieu of the Non-Vehicle Accident Benefit . (3) if such injuries result from his (a) driving or riding in an automobile (as defined below) operated on' a public street or highway other than in racing, drag racing, or in willful violation of any traffic law or ordinance . . . The term ‘automobile’ shall mean a four-wheeled passenger motor vehicle exclusively of the pleasure car type not operated by the insured for hire.” [Emphasis added.]

Appellee made demand in writing for these “Vehicle Accident” benefits which appellant refused to pay.

Two witnesses testified at trial as to the nature of the pickup truck in question. Harold Martin, the brother of the deceased Leon Ralph Martin, who had sold the truck to the latter, testified that the truck was a “camper special” designed to have “a camper sitting on the back of it” and that the only difference in equipment on this vehicle and “a regular pickup truck” was “the beefing up of the frame and what have you to make it more stable.” According to Harold, the deceased Leon Ralph Martin “only bought it because he was going to retire and put his camper trailer we have along with the camper on the truck. That was the only purpose he bought it for” and “that’s what he used it for.” He testified that pickup trucks were used for pleasure equally as much as automobiles and that the seats were the same as in an automobile. In regard to this particular truck Harold indicated that it had two-wheel drive, truck tires which had standard automobile treads, a standard automobile drive shaft and differential, an automatic transmission, and was not equipped for heavy-duty pulling. However, he testified that the truck had an eight-by-seven foot bed, could haul 1500 pounds and “other than the camper special” was not any different from any other pickup truck.

The appellee-administrator, son of the two deceased, testified that the truck in question was not used other than for pleasure. According to him the couple also had a 1968 Chevrolet Impala, but that they used the truck for pleasurable trips as much as the car. He cited examples of persons who use passenger automobiles for other than pleasure, including an E. K. Buster Dixon who “owns a tubing puller, and signs for oil rigs” and uses his Cadillac El Dorado for “hauling materials to and from the job”; his insurance agent who has “got all his material, books, catalogues, insurance policies in the trunk” of his automobile; and an uncle who was a retired auditor for the Federal government who carried “machines, adding machines, typewriters” in his personal ear. He said he knew of no type of motor vehicle that is designed solely for pleasure, and that “the biggest majority” of pickup trucks are not bought and used solely for pleasure.

The question we are presented with is whether the vehicle in question is “exclusively of the pleasure car type” under the terms of the policy. In Pennell v. United Insurance Company, 150 Tex. 541, 243 S.W.2d 572, 573-575 (1951), the Supreme Court reviewed language almost exactly the same as that in the present case. In that case the accident and health policy provided for double indemnity when injury was sustained by the insured “while driving or riding within any private passenger automobile exclusively of the pleasure car type.” [Emphasis added.] The insured was injured while riding in a 1946 Willys Universal jeep. Speaking for the Court, Justice Smedley answered a contention that because of the use of the word “exclusively” the term in question was ambiguous:

“The words are simple. We do not find, as petitioner contends, that the word ‘exclusively’ causes the description to be ambiguous or that ambiguity arises from the ‘placement’ of that word. ‘Exclusively’ gives emphasis to the description as an automobile of the pleasure car type. We believe the words clearly mean that the double indemnity provision applies only to automobiles that are constructed and intended to be used exclusively for pleasure, and does not apply to automobiles constructed and intended to be used for freight carrying or agricultural or industrial purposes, and does not apply to automobiles constructed and intended to be used both for pleasure and for freight carrying or agricultural or industrial purposes.”

Also rejected was the contention that the use of the vehicle involved was to be considered in determining whether it came under the policy provisions.

“There is testimony that jeeps can be used and often are used for various forms of pleasure, but this evidence does not change the fact, conclusively proved by the evidence which has been set out above, that jeeps are built and intended to be used and are used for other purposes than pleasure, as well as for pleasure, that the jeep is, as the Court of Civil Appeals expresses it, ‘an all-purpose car.’ We agree with that Court’s holding that ‘as a matter of law the jeep involved here is not a private passenger automobile “exclusively of the pleasure car type.” ’ ”

In Tuttle v. Gamble Alden Life Insurance Company, 385 F.Supp. 1352, 1356-1357 (N.D.Tex.1974, aff’d 5 Cir., 531 F.2d 573), the policy defined “private automobile of the private passenger design designed primarily for transporting persons.” The court there held that a Dodge pickup with an “A” frame and winch located in its bed which was used for obtaining family groceries and “going places” was not included in the above definition. The court in concluding that the word “primarily” meant the same as the word “exclusively,” stated: “The most that could be said was that it was a vehicle designed for a dual purpose which does not satisfy the requirement of the policy.”

Other cases have held pickup trucks to come within the meaning of “private passenger automobile,” and “private automobile of the pleasure car design.” Hartford Accident and Indemnity Corp. v. Lowery, 490 S.W.2d 935, 939-940 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.); State Farm Mutual Automobile Insurance Co. v. Durrett, 472 S.W.2d 214, 216-219 (Tex.Civ.App.—Fort Worth 1971, no writ); Prudential Insurance Company of America v. Lucas, 456 S.W.2d 429, 430-433 (Tex.Civ.App.—Austin 1970, writ ref’d n. r. e.); Mutual Benefit Health and Accident Association v. Hudman, 385 S.W.2d 509, 513-514 (Tex.Civ.App.—Austin 1964, rev’d on other grounds, Tex., 398 S.W.2d 110). However, in none of the above cited cases was the word “exclusively” included in the definition. In fact, in the Hudman case the court indicated that had the policy contained the word “exclusively,” thereby restricting the type of private passenger automobile covered, the result would have been different. 385 S.W.2d at 514.

We agree with appellant’s contention that the Pennell case governs the present situation and that the language of the policy in question excludes the vehicle involved as a matter of law. The vehicle accident provision of the policy prescribes that an automobile falling under it must be “exclusively of the pleasure car type.” The truck in question had both a seat for passengers and a bed and suspension designed for occupational or commercial hauling. Although the truck was equipped to haul a camper, the evidence did not indicate whether a camper was mounted on the truck at the time of the accident, or if one was so mounted whether it could be easily removed so as to accommodate hauling. The fact that the truck had special suspension to handle the mounting of a camper does not make it exclusively of the pleasure car type just as the installation of a trailer hitch on a passenger car would not make it exclusively of the “freight carrying type.” There is no evidence that the truck in question was “constructed and intended to be used exclusively for pleasure,” as required by Pennell, but the evidence reveals only that this particular vehicle was being used solely for pleasure. It was clearly a “dual purpose” vehicle not covered under the terms of this policy.

We hold that the trial court erred in holding that the language in question was ambiguous. We agree with appellant’s contention that the vehicle in question was not, as a matter of law, an automobile as defined in the policy. Appellant’s point of error is sustained.

The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.


author: McCLOUD, Chief Justice.

text:
    Nona LAUDERDALE, Guardian, Appellant, v. Terry L. CAREY et ux., Appellees.
    No. 4983.
    Court of Civil Appeals of Texas, Eastland.
    July 21, 1977.
    Rehearing Denied Aug. 11, 1977.
    John R. Cook, Thompson & Cook, Breckenridge, for appellant.
    C. J. Eden, Breckenridge, for appellees.
   McCLOUD, Chief Justice.

Nona Lauderdale, Guardian of the Person and Estate of Lettie Grace Ledbetter, a person of unsound mind, sued Terry Carey and wife, Patricia Carey, to set aside a deed executed by Lettie Ledbetter alleging that Lettie Ledbetter lacked sufficient mental capacity to understand the nature and effect of her act. The deed was executed by the ward, Ledbetter, on August 11, 1975. Nona Lauderdale was appointed guardian of the person and estate of Lettie Ledbetter on October 23, 1975. The jury found that on August 11, 1975, when Lettie Ledbetter executed the deed, she had sufficient mental capacity to understand the nature and effect of her act. Judgment was entered denying the relief sought by the guardian, Nona Lauderdale, who has appealed. We reverse and remand.

The guardian argues the court erred in permitting Terry and Patricia Carey to testify, over her objection, to transactions with Lettie Ledbetter, because such testimony should have been excluded under Article 3716, Tex.Rev.Civ.Stat.

Article 3716, the Dead Man’s Statute, provides:

“In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Both Terry and Patricia Carey were permitted to testify as to several statements and acts of the ward immediately prior to and subsequent to the execution of the deed. They each stated that in their opinion, Lettie Ledbetter, on August 11, 1975, when she executed the deed, knew and appreciated the consequences of her acts. Unless the bar of the statute was waived, such testimony should have been excluded. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298 (Tex.Com.App.1921, jdgmt. adopted); Logsdon v. Segler, 225 S.W.2d 435 (Tex.Civ.App.—San Antonio 1949, writ ref’d).

The Careys contend the statutory disqualification was waived because the guardian took the deposition of both Terry and Patricia Carey. The rule is well established that a party may waive the provisions of Article 3716 by taking the deposition of the adverse party and questioning the adverse party concerning transactions with or statements by the ward or decedent, and this is true even though the deposition is not put in evidence by the adverse party who caused it to be taken. Allen v. Pollard, 109 Tex. 536, 212 S.W. 468 (1919); Hopkins v. Robertson, 138 S.W.2d 310 (Tex.Civ.App.—Fort Worth 1939, writ ref’d). In the instant case, however, the record does not properly reflect that the guardian took the deposition of Terry and Patricia Carey. Also there is nothing in the record to show what questions were asked the Careys if the guardian did in fact take their depositions. Before waiving the provisions of Article 3716, the guardian not only had to take the Careys’ deposition, but she had to question the witnesses concerning a transaction with, or statement by, the ward.

The Careys have failed to show that the statutory disqualification was waived by the guardian. They testified in detail as to acts and statements of the ward occurring in connection with the sale of the property in question. This testimony was inadmissible under the record before us. We hold that such error probably caused the rendition of an improper judgment. Rule 434, T.R.C.P.

Judgment of the trial court is reversed and the cause is remanded.


author: WALTER, Justice.

text:
    PLAINS BUILDERS, INC. v. PRIDE TRANSPORT COMPANY f/d/b/a Wardlaw Transport Express, Inc., et al.
    No. 5018.
    Court of Civil Appeals of Texas, Eastland.
    July 21, 1977.
    Mike M. Tabor, Dallas, for appellant.
    Rutledge & Rutledge, Abilene, for appel-lees.
   WALTER, Justice.

Plains Builders, Inc., filed suit against Pride Transport Company f/d/b/a Ward-law Transport Express, Inc., on a non-negotiable promissory note in the principal amount of $10,000.00 dated June 28, 1974. In a nonjury trial, the court rendered a take nothing judgment and Plains has appealed.

Pride pleaded a general denial, denied the execution of the note under oath, partial payment, full payment and liquidation of whatever claim the plaintiff had by payment of Four Thousand Dollars.

Plains introduced a certificate from the Secretary of State showing (1) the incorporation of Wardlaw; (2) Stanley D. Wardlaw was the designated and registered agent for the corporation; and, (3) Stanley D. Ward-law was one of the three incorporators of Wardlaw. It also shows the Wardlaw Corporation changed its name to Pride Trans-, port Company on April 25, 1975, and its registered agent was changed to Wendell Mathis.

Robert A. Almond testified substantially as follows:

In June, 1974, I was employed by Plains Builders as marketing representative. I was present in Mr. Wardlaw’s office when he prepared the note in controversy and observed Wardlaw sign the note. The note is signed “Stanley D. Wardlaw, President — Wardlaw Transport Express”. After signing the note, Ward-law delivered it to me and I signed “Accepted: Robert A. Almond, Plains Builders, Inc. June 28, 1974”. I delivered the note to Ed Dorin, manager of Plains Builders’ office in Dallas. Wardlaw was chief operating officer and president of Wardlaw Transport Express, Inc.

He was asked the following question and he gave the following answer:

“MR. TABOR: Q What was your understanding as to the ownership of Wardlaw Transport Express?
THE WITNESS: A My understanding of the ownership was the only one I knew. If there were others involved in ownership, I really don’t know who they are. Mr. Wardlaw, as I stated, was the chief operating officer and major shareholder.”

The note was then introduced in evidence over the defendant’s objection.

Almond continued to testify substantially as follows on cross-examination:

I have never seen the stock records of Wardlaw. If I were asked to give the names of those owning stock in Wardlaw, I would say “No, I do not”. Pride Transport owns the corporation today.

Alfred Koetting, president of Plains, testified substantially as follows:

I was in the office when Mr. Almond delivered the Wardlaw note in controversy. The note has been in our possession since that time and it has never been transferred and Plains owns the note. No payments have been made on the note.

Pride rested without introducing any evidence.

The court concluded as a matter of fact Stanley D. Wardlaw had no authority to sign the note in controversy on behalf of Pride Transport Company, formerly doing business as Wardlaw Transport Express, Inc., and as a matter of law Wardlaw had no authority to sign the note.

Wardlaw was chief operating officer, a major shareholder and president of the corporation. As chief operating officer of the corporation, Wardlaw occupied the position as general manager. The evidence conclusively established Wardlaw was an agent of the corporation.

In Funderburg v. Southwestern Drug Corporation, 210 S.W.2d 607 (Tex.Civ.App.-Fort Worth 1948, no writ), the court said:

“Where agency is proved (admitted in this case) without explanation or showing as to its extent, the agency will be presumed to be general and not special

The presumption of general agency was not rebutted and we must consider Ward-law a general agent for the corporation for all purposes involved in this lawsuit.

As general manager, Wardlaw had authority to execute the note and bind the corporation. Sealy Oil Mill & Mfg. Co. v. Bishop Mfg. Co., 235 S.W. 850 (Tex.Com. App.1921, jdgmt. adopted).

The court admitted the note in evidence either under the theory of general agency or that Wardlaw was the general manager of the corporation. The evidence establishes as a matter of law Wardlaw’s authority to sign the note for the corporation.

The judgment is reversed. The record reveals the evidence was not fully developed and in the interest of justice, the cause is remanded.


text:
    Dr. Olan KEY, Appellant, v. John B. DAVIS and wife, Alice Davis, Appellees.
    No. 8769.
    Court of Civil Appeals of Texas, Amarillo.
    July 25, 1977.

      Strausburger, Price, Kelton, Martin & Unis, Stuart C. Hollimon, Dallas, for appellant.
    W. Hugh Harrell, Lubbock, for appellees.
   ELLIS, Chief Justice.

In this venue case, Dr. Olan Key, one of three defendants in a medical malpractice case, has appealed from an order overruling his plea of privilege to be sued in Howard County, the county of his residence. The suit was filed in Lubbock County. Doctor Key’s plea was controverted by the plaintiffs, John and Alice Davis, and subsequently overruled by the trial court. On appeal, the defendant challenged the applicability of subdivisions 3, 4, 9a or 29a of the venue statute to the facts of this ease. We reverse the order overruling Key’s plea of privilege and render judgment transferring the action against Key to the district court in Howard County.

The acts alleged to constitute malpractice occurred in 1974. On May 6 of that year, Dr. Gerald L. Woolam examined the plaintiff, Alice Davis, in connection with her complaint of pain in her lower left abdomen radiating into her right abdominal quadrant. Doctor Woolam and Doctor Key (the appellant) had become associated in an alleged partnership arrangement in 1968. Woolam testified that this partnership continued until April of 1974, and that he (Woolam) executed a partnership dissolution agreement effective May 1, 1974. He did not know whether Key had signed the dissolution instrument. Because of the doctors’ alleged partnership relationship the plaintiffs have sought to impose liability upon Doctor Key.

The examination by Doctor Woolam and subsequent testing did not reveal the cause of Mrs. Davis’ pain. Woolam then told Mrs. Davis that he could attempt to control the pain with more medication or he could perform an exploratory operation in which he would attempt to correct any condition that might be causing the pain. In discussing the operation option with her, Woolam informed Mrs. Davis of the most common complications which might occur, although he did not warn her that she might lose the use of a limb. The patient opted for the operation and the plaintiffs’ petition reveals that the operation occurred on or about May 13, 1974.

Doctor Woolam performed the operation with the assistance of Dr. David Mangold. At the time, Mangold had just graduated from medical school and was practicing with only a temporary medical license. Doctor Key, the appellant, did not participate in the surgery.

During the course of the surgery, Wool-am discovered a lumbar hernia below Mrs. Davis’ twelfth rib. Believing this might be the cause of her pain, he repaired the hernia by sewing a material called Marlex mesh over the hernia. The plaintiffs have alleged that Woolam negligently injured the femoral nerve while repairing the hernia. According to the petition, this injury resulted in a permanent disability.

This medical malpractice suit was brought in Lubbock County and names Doctors Woolam, Mangold and Key, the appellant, as defendants. Doctor Key’s plea of privilege was controverted on the bases of Tex.R.Civ.Stat.Ann. art. 1995, subd. 3, 4, 9a and 29a. The trial court overruled the plea of privilege, but did not enter findings of fact and conclusions of law. Under these circumstances, the judgment of the trial court should be upheld if there is sufficient evidence in the record to sustain venue under any of the subdivisions pleaded. Loomis v. Sharp, 519 S.W.2d 955 (Tex.Civ.App.-Texarkana 1975, writ dism’d).

The first subdivision pleaded was subdivision 3 which applies to venue cases involving multiple defendants. In his first two points of error, Key has argued that the evidence is legally and factually insufficient to sustain venue under this subdivision. To establish venue under this exception, the plaintiff is required to plead and prove: (1) that the plaintiff is a resident of the county of suit, and (2) that the residence of at least one defendant is outside Texas or such residence was unknown to the plaintiff at the time the suit was filed. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956); Hill v. Melton, 311 S.W.2d 496 (Tex.Civ.App.—Dallas 1958, writ dism’d); 1 R. McDonald, Texas Civil Practice in District and County Courts, § 4.09 at 430 (1965). Even if these venue facts are established, subdivision 3 will not hold venue against a plea of privilege asserted by a Texas resident not residing in the county of the suit (such as Key) unless it is shown that he is a necessary party to the suit under subdivision 29a. As will be later shown, Doctor Key is not such a necessary party.

At the venue hearing only Doctor Woolam testified. No evidence that the plaintiffs reside in Lubbock County was presented. In their brief, the plaintiffs state that this fact was “uncontroverted.” At the venue hearing, however, the plaintiff has the burden to prove his venue facts by affirmative extrinsic evidence; mere allegations are insufficient. Ladner v. Reliance Corp., supra; see, 1 McDonald § 4.55 at 610-615. The residence of the plaintiff is a venue fact which must be proved at the venue hearing. Ward v. Davis, 262 S.W.2d 533 (Tex.Civ.App.—Waco 1953, no writ); 1 McDonald § 4.09 at 432. The plaintiffs’ proof at the hearing failed to establish this venue fact.

In addition, there is no evidence that any defendant is a nonresident of Texas or that the plaintiffs did not know the residence of any defendant at the time they filed this suit. If the plaintiffs wished to rely on subdivision 3, it was incumbent upon them to prove that one of the defendants was a nonresident or that the residence of at least one defendant was unknown. Graham v. Huff, 384 S.W.2d 904 (Tex.Civ.App.—Dallas 1964, no writ). Although the plaintiffs have alleged that the residence of Doctor Mangold was unknown, they failed to prove this fact at the venue hearing. In fact, the transcript reflects that Mangold was served with process exactly where the plaintiffs requested he be served. It is our opinion that venue as to Doctor Key has not been established in Lubbock County under subdivision 3.

The second subdivision pleaded in the plaintiffs’ controverting plea was subdivision 4, which also applies to multiple defendants. In his third and fourth points of error, Doctor Key has argued that the evidence was legally and factually insufficient to sustain venue under this venue exception. To maintain venue under this subdivision, the plaintiff must prove: (1) one defendant resides in the county of suit, and (2) the party asserting the privilege is at least a proper party to the claim against the resident defendant, and (3) a bona fide claim against the resident defendant. Flewellen v. Brownfield State Bank & Trust Co., 517 S.W.2d 384 (Tex.Civ.App.—Amarillo 1974, no writ); 1 McDonald § 4.10.2 at 434.

At the venue hearing the plaintiffs produced no evidence that any of the three defendant doctors presently resides in Lubbock County. Although the partnership agreement between Doctors Woolam and Key recites that, as of 1968, both Key and Woolam were “of Lubbock, Texas,” proof of their 1968 residence does not establish their residence in 1976. None of this evidence establishes the present domicile of Woolam or Key. Because the plaintiffs failed to prove at the venue hearing that any of the three doctors was a Lubbock County resident, venue in Lubbock County cannot be sustained under subdivision 4.

Furthermore, the plaintiffs did not prove they have a bona fide claim against any resident defendant. As noted above, this is a venue fact to be established under subdivision 4, and facts establishing a cause of action for venue purposes must be proven just as any other facts where a cause of action is required to be proved. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (Tex.Com.App.1941, opinion adopted); General Motors Corp. v. Courtesy Pontiac, Inc., 538 S.W.2d 3 (Tex.Civ.App.—Tyler 1976, no writ). It is the plaintiffs’ position that Doctor Woolam is a resident of Lubbock County and that he committed malpractice in performing surgery on Alice Davis in such manner as to injure her femoral nerve.

In a malpractice case, the plaintiff has the burden of proving that (1) the defendant was negligent, and (2) the negligence proximately caused the plaintiff’s injury. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). These two elements must be proven by a doctor of the same school of medicine as the defendant and they may not be left for speculation. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1954); Mullins v. Bexar County Hospital Dist., 535 S.W.2d 44 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.).

In the case before us, the only doctor to testify was Doctor Woolam. He recognized that Mrs. Davis experienced problems with her leg after her operation. He also recognized that it was certainly possible for a person to receive an injury to the femoral nerve during exploratory surgery, but that such complications were uncommon. Doctor Woolam testified that he had not reviewed lumbar hernia repairs before the operation. Woolam also stated that he had learned from another doctor that scar tissue had been found around Mrs. Davis’ femoral nerve during a reparative operation subsequent to the hernia repair.

Doctor Woolam, however, also testified that he had not determined that anything he did during the operation did any damage to the femoral nerve. In fact, the femoral nerve is not even in the same region where Woolam and Mangold repaired the lumbar hernia. As for the scarring, Woolam testified to seven possible explanations—all unrelated to the operation—for the scarring. Woolam did not know whether any scar tissue had been present at the time he operated on Mrs. Davis. Woolam indicated that the problems Mrs. Davis experienced after the operation could have resulted in spite of the exercises of ordinary care; he never gave any opinion to the effect that he failed to exercise ordinary care.

We have concluded that the plaintiffs produced no evidence of negligence or proximate causation. When Woolam’s testimony is distilled, the substance of his testimony is that Alice Davis developed some leg problems after her operation and that these problems were not common after such operations. Without more, we cannot say that the plaintiffs established a bona fide cause of action against Doctor Woolam. Because there is no evidence that Doctor Woolam is a resident of Lubbock County and no evidence of a bona fide claim against him, venue as to the action against Doctor Key cannot be maintained in Lubbock County.

The plaintiffs also pleaded subdivision 9a of article 1995. In points 5 and 6, Doctor Key has challenged the legal and factual sufficiency of the evidence supporting the court’s order on this ground. Subdivision 9a allows a plaintiff to sustain venue in a negligence case in the county where the negligence occurred. The venue facts which may cause this subdivision to become effective are: (1) an act or omission of negligence occurred in the county in which the suit was filed, (2) the act or omission was that of the defendant of one acting for him, and (3) the negligence was a proximate cause of plaintiff’s injuries. 1 McDonald § 4.17.2 at 476-80. As set out above, there is no evidence that Doctors Woolam or Mangold were negligent in performing the operation. Likewise, there is no evidence that Key, who did not even participate in the operation, committed any acts or omissions of negligence. For these reasons, venue under subdivision 9a cannot be maintained as to the action against Doctor Key in Lubbock County.

The last subdivision pleaded by the plaintiffs is 29a. Venue facts under this subdivision are: (1) venue is proper as to at least one defendant under some exception to the general venue rule, and (2) the defendant asserting the privilege must be a necessary party to the litigation. 1 McDonald § 4.36 at 544-45. In the instant case, the plaintiffs failed to show that venue was proper as to any of the defendants under any exception to the general venue statute. Subdivision 29a cannot operate independently; it must act in concert with some other subdivision of the venue statute. Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900 (1942). The plaintiffs have not proven venue to be proper as to any of the defendants according to any of the subdivisions of article 1995. This necessary venue fact not being present, subdivision 29a cannot serve as the basis for venue.

Additionally, the plaintiff must show that the defendant urging his plea of privilege is a necessary party upon the cause of action as to which venue against the codefendant has been established. 1 McDonald § 4.36, 545. A necessary party is one without whose presence no effectual decree could be rendered as between the plaintiff and the defendant. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944); Tarrant v. Walker, supra; B & C Construction Co. v. Grain Handling Co., 521 S.W.2d 98 (Tex.Civ.App.—Amarillo 1975, no writ); see also, Loop Cold Storage Co. v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973). In the instant case, plaintiffs sued each of the defendants as individuals and as alleged partners. The alleged partnership was not sued. It is noted that the relationship between partners is joint and several, and it is well established that one partner may be sued without joinder of the other partners. Vahlsing, Inc. v. Esco, Ltd., 496 S.W.2d 652 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d). In Kott v. Faircloth, 350 S.W.2d 668, 669 (Tex.Civ.App.—Beaumont 1961, no writ) it was stated: “The Commission of Appeals long ago settled the question that causes of action against partners are severable.” Full satisfaction for any damages can be had against the other named defendants besides Doctor Key. See Tarrant v. Walker, supra. Thus, it has not been established that Doctor Key is a necessary party within the meaning of subdivision 29a.

For the reasons above stated, Doctor Key’s points 1-6 are sustained. The order overruling the plea of privilege is reversed and judgment is rendered ordering the transfer of the plaintiffs’ suit as against Doctor Key to the district court of Howard County in accordance with Tex.R.Civ.P. 89.


author: O’QUINN, Justice.

text:
    Edwin E. FOSTER, Appellant, v. W. H. BULLARD et al., Appellees.
    No. 12500.
    Court of Civil Appeals of Texas, Austin.
    July 20, 1977.
    Rehearing Denied Aug. 10, 1977.
    Joe A. Osborn, Kendall, Randle, Finch & Osborn, Austin, for Edwin E. Foster.
    J. P. Darrouzet, Austin, for Mutual Savings Institution.
   O’QUINN, Justice.

An earlier phase of this lawsuit reached this Court on appeal from grant of motions for summary judgment filed by the several defendants against whom Edwin E. Foster brought the original action in 1970 to enforce terms of a first refusal option agreement to purchase fifty acres of land out of the James Standifer Survey in Travis County west of Austin near Barton Creek. Foster v. Bullard, 496 S.W.2d 724 (1973), writ ref’d n. r. e.

We reversed judgment of the trial court, and, having before us only the issue of whether the motions for summary judgment for the appellees were improvidently granted, there being no motion for summary judgment filed by appellant, we remanded the cause for trial on authority of Hinojosa v. Edgerton, 447 S.W.2d 670, 673 (Tex.1969). See also Alamo National Bank v. Hurd, 485 S.W.2d 335, 342 (Tex.Civ.App. San Antonio 1972, writ ref’d n. r. e.).

With only minor rearrangement of parties defendant, the cause was tried before the district court without a jury in March of 1976, after which the trial court on April 29 entered judgment that Foster was entitled to specific performance in purchase from Mutual Savings Institution of 47.96 acres of land, but under terms and conditions calling for payment at $3,000 an acre.

From this judgment Foster appeals and brings ten points of error. In the main, Foster contends that the court erred in requiring him to pay $3,000 an acre for the land instead of $750 per acre under terms of the original option agreement. Mutual Savings and other defendants appeal and bring six points of error, under which their principal contention is that the trial court erred in following the findings and holding of this Court as stated in our opinion in 1973.

We will modify the trial court’s judgment to provide that Foster be required to pay no more than $750 per acre for the 47.96 acres of land, and as modified the judgment will be affirmed. The contentions made by Mutual Savings, which the other appellants adopted, will be overruled.

For statement of the facts out of which this controversy arose, reference is made to our opinion of 1973, in which contracts are described, actions of the parties are related, and a sketch of the land in controversy appears on page 728. (496 S.W.2d 726-732).

In remanding the cause on its prior appeal, this Court stated: “Whatever performance duty is placed on appellant [Foster, in that instance] would depend upon determination by a court of what the actual trade was between Casa Monte [the corporate entity owned by Bullard and wife] and Mutual in fact and in law.” (496 S.W.2d 724, 737, Col. 2).

We conclude from the record, and application of law to the facts, that Foster’s performance duty is to pay a per-acre price for the 47.96 acres “consistent with the offer” Bullard finally accepted, “but not less than $750.00 per acre.” We conclude that the sale to Mutual of that tract, as well as the entire ranch, consisting of nearly 2,500 acres, was at a price of $650 an acre. Therefore, under the facts of the sale finally made by Bullard to Mutual on August 28, 1969, Foster was entitled to buy the 47.96 acres of land at not less than $750 per acre.

To review briefly the contracts leading up to the final sale of Casa Monte Ranch, which sale also included the 47.96 acres in controversy, we begin with the contract between W. H. Bullard (acting for Casa Monte corporation) and Edwin E. Foster. Foster bought 30 acres from Bullard, out of the Casa Monte Ranch, in March of 1967. The 30 acres comprised the south portion of an 80-acre tract, leaving about 50 acres (later surveyed and found to be 47.96 acres) which the parties agreed Foster would have a “first refusal right” to buy at a price consistent with other offers “but not less than $750.00 per acre.”

Subsequently, after the death of Bul-lard’s wife, Bullard and the Capital National Bank, executor of Mrs. Bullard’s estate, determined that Casa Monte Ranch should be sold in its entirety for estate tax reasons. Bullard authorized Bob Howerton as agent to find a buyer. In course of negotiations between Howerton and H. B. Hendrix, Hendrix offered to buy the ranch, estimated to contain 2,460 acres, for $1,600,000.00. Bullard and the bank accepted the offer.

After the agreement as to price had been reached, Bullard told Hendrix the sale would be subject to Foster’s right of “first refusal” and it would be necessary to allocate part of the purchase price to a certain 164-acre tract for that purpose. Bullard pointed out to Hendrix a plat which Bullard stated was the tract of 164 acres he had described in the contract and told Hendrix that the tract joined Barton Creek on the south.

Bullard and Hendrix talked about value of the 164 acres in terms of $3,000 to $3,500 an acre. Hendrix was under the impression the 164-acre tract was more valuable than other portions of the ranch because Hendrix (and Howerton also) believed the tract had frontage on Barton Creek. The tract in fact had no frontage on the creek because of the prior sale by Bullard to Foster of the 30 acres which lies between Barton Creek and the 164 acres. (See sketch, 496 S.W.2d 728). Hendrix at trial testified he did not know whether he had ever been on the 164 acres, did not know whether it had a road on it, and did not know whether the land adjoined land Hendrix already owned in that area; nor did Hendrix know whether the 164-acre tract had frontage on Highway Loop 360.

Bullard testified that on January 12, 1969, he and Hendrix reached “an overall basis of understanding” and that the following day he assembled all the deeds and records and dictated the contract they executed. The contract described the ranch as “ . . . 2,460 acres, more or less . said tract being commonly known as the ‘Casa Monte Ranch’ and specifically described in three deeds as follows . . . ” The contract described the three deeds and stated the acreage as “more or less” in each deed. The deeded acreage so specified designated “First Tract” (containing “approximately 164 acres”), “Second Tract”, and “Third Tract” (the latter two containing together 2,295 acres “more or less”).

The Hendrix contract then specified the total consideration to be $1,600,000.00, and after setting out terms of payment, provided: “ . . . said total consideration of $1,600,000.00 is based upon the following allocations:

FIRST TRACT $ 492,800.00, and
SECOND TRACT AND THIRD TRACT $1,108,000.00
TOTAL $1,600,000.00”.

The contract provided that a designated surveyor would survey “the entire tract of approximately 2,460 acres,” and that “ . any variance as to quantum of land shall result in the adjustment in the total price of $650.00 per acre for excess land above the 2,460 acres or for any deficiency in the computed acreage . . . ”

The contract also provided: “It is under- . stood and agreed that Edwin E. Foster has the right of rejection for a period of ten (10) days for the purchase of the FIRST TRACT at the price above stated; this contract is subject to his right to exercise this purchase option.”

It is clear from the record that Hendrix and Bullard at all times negotiated regarding sale of the entire ranch consisting of what the parties believed to be 2,460 acres of land. Hendrix never made an offer to purchase either the 164 acres or the 47.96 acres subject to the “first refusal” option contract, nor did Hendrix offer to buy either of these tracts for $3,000 an acre; nor did Bullard at any time offer either the 164 acres or the 47.96 acres for sale to Hendrix.

Bob Howerton was present during the negotiations and when the contract was drafted. Howerton testified that Hendrix never indicated he would pay $3,000 an acre for the 164 acres if Bullard would sell it separately, and that Bullard never offered to take $1,108,000.00 for the 2,296 acres in the “Second” and “Third” tracts. No independent appraisals were made of any part of the ranch as a basis for sale negotiations or the allocation of the sales price Bullard placed in the contract.

The contract between Bullard and Hendrix was executed on January 13, 1969, and on the same day notice was sent to Foster that “ . . . Casa Monte Company has contracted to sell 164 acres of land which includes the 50 acres [later by survey found to be 47.96 acres] set out in the memorandum agreement at a price of $3,000.00 per acre . . . ”

In May of 1969, following the contract in January, a perimeter survey of the ranch disclosed that it contained 2,487.07 acres of land, or 27.07 acres more than the acreage mentioned in the contract. No separate survey was made to determine the amount of excess or deficiency in the “First (164-acre) Tract” alone.

Thereafter Hendrix decided not to complete his contract with Bullard, and subsequently, on July 25, 1969, upon being reimbursed for the $25,000 in earnest money he had posted, Hendrix assigned his interest in the contract of January 1969 to Mutual Savings in an instrument reciting that he did “ . . . hereby intend to place The Mutual Savings Institution in my position as Purchaser under said contract of Sale.” Mutual accepted the assignment and Bul-lard accepted Mutual.

The sale to Mutual Savings was not closed until August 28, 1969, after Mutual and Bullard had renegotiated the transaction. The deed executed in August to Mutual conveyed the ranch in two tracts, instead of three. “Number One” tract recited 2,486.82 acres, and “Number Two” tract recited 0.25 acres, a total of 2,487.07 acres, the acreage determined by the perimeter survey earlier in May. The deed recited consideration as $10.00 and other good and valuable consideration, plus a purchase money promissory note for $1,455,835.95. At the closing, Mutual executed a deed of trust to secure payment of the note describing the 2,487.07 acres in the same two tracts as the deed. Prior to closing, application was made for a title policy to be issued on the ranch for benefit of Mutual. The application covered the entire 2,487.07 acres of the ranch at the total amount of the purchase price. The policy issued later conformed to the application, without insurance on separate tracts at different values. Also at the closing in a Memorandum of Agreement for a trespass to try title suit, adjustment was provided at $650.00 per acre for title failure, since Bullard at the time was unable to furnish Mutual a title policy prior to suit.

As appears in our first opinion (496 S.W.2d 724, 731), Foster did not learn that Bullard had sold the ranch, including the tract Foster had a “first refusal” option to buy, until some time in September of 1969, when he read in a newspaper of the sale a month earlier to Mutual of the “2,500-acre ranch” for which Mutual was “paying $1.6 million.” Foster had no prior notice of the sale to Mutual, and the notice he had in January of that year, pertaining to the Hendrix contract, advised only that “ . Casa Monte Company has contracted to sell 164 acres of land which includes the 50 acres set out in the memorandum agreement at a price of $3,000 per acre . . ”

In this appeal Foster contends that the sale to Mutual was made on a “per acre” basis for $650 per acre. Mutual argues that 164 acres of the ranch were sold for $3,000 per acre, and that the remaining 2,323.07 acres sold for $1,125,590.33, or an average of $484.52 per acre. The trial court found (Finding No. 59) that “Mutual in good faith paid to Bullard and Casa Monte the sum of $150,000.00 for the 50 acres [47.96, by survey] which is the subject of this law suit.” This finding is without support in the evidence, save in provisions of the original Hendrix contract, which Mutual later acquired and renegotiated with Bullard. The controlling facts are the price and terms of the sale from Casa Monte, Bullard, and the Capital National Bank to Mutual Savings late in August of 1969.

Mutual acquired the entire Casa Monte Ranch and with it bought the disputed 47.-96-acre tract on which Foster had a “first refusal” option. On the same date the deed to the ranch passed, four instruments were executed: (1) a contract titled “Memorandum of Agreement,” (2) the deed, (3) a purchase money promissory note, and (4) a deed of trust to secure the note. The deed itself, as already observed, described two tracts of land, whereas the Hendrix contract had described three tracts, with consideration allocated to the 164-acre tract separately from consideration allocated to the other two tracts. The deed of trust followed the same description of two tracts found in the deed to Mutual, and in neither instrument was there any separation or allocation of consideration.

The four instruments, executed contemporaneously on August 28, 1969, will be construed together, since they were executed at the same time, relate to the same subject matter, and are between the same parties. Miles v. Martin, 159 Tex. 336, 341, 321 S.W.2d 62, 65 (1959); Fleming v. Todd, 42 S.W.2d 123, 126 (Tex.Civ.App. Beaumont 1931, writ dsm’d). The Supreme Court in Miles pointed out that application of such principle constitutes “ . . . simply a device for ascertaining and giving effect to the intention of the parties ...”

The critical portion of the final trade between Mutual and Bullard concerns consideration actually paid for the 47.96-acre part of the ranch. Neither the deed, the memorandum agreement, the deed of trust, nor the promissory note shows the 47.96-acre tract segregated from the balance of the ranch, and no instrument provides any basis for showing a distinction of any sort made in the sale price of different parts of the ranch.

The next step is to determine whether the sale was in gross or per acre, and if by the acre, the consideration per acre for the ranch.

In arriving at a consideration of $650 per acre for the ranch, including the disputed tract of 47.96 acres, we follow the rule applied by the Supreme Court in Denman v. Stuart, 142 Tex. 129, 133, 176 S.W.2d 730, 732 (1944), and followed later in Lyons v. Keith, 316 S.W.2d 785, 794 (Tex.Civ.App. Beaumont 1958, writ ref’d n. r. e.). In those cases the problem was to determine the value of land where an excess or a deficiency in acreage was discovered after completion of the sale. In neither case was the court considering value of a tract, sold as part of a larger tract, on which there was an outstanding “first refusal” purchase option. But in the present case, where there occurred a title failure as to the 47.96 acres, the same principle of adjustment seems appropriate and will be adopted and applied in this case.

In Denman, supra, the court adopted the appraisement which the parties made when they finally closed their trade, and the court observed, “We are content to adopt the appraisement which the parties made when they entered into the contract . . . ” In the present case, as in Lyons, supra, the evidence supports the conclusion that the parties agreed that each acre as a part of the undivided whole of the ranch would be considered to have the same value, in this case $650 per acre. There is nothing tending to show the contrary, save the Hendrix contract, made in January and assigned to Mutual in July, and renegotiated with substantially different results at the final sale late in August.

The Hendrix contract of January 13, 1969, was considered by this Court on the prior appeal, in which it was pointed out that the final paragraph of that contract constituted notice to Mutual of Foster’s “first refusal” option. No one of the instruments at closing on August 28, 1969, refers to the Hendrix contract in any manner material to the 47.96 acres. The sale in August described the ranch in two tracts, recited a lump sum consideration, and provided for title defect adjustment at $650 per acre.

No officer or official acting in behalf of Mutual at the time of acquisition of the Hendrix contract, renegotiation of the trade with Bullard, or in closing the final trade in August testified that the 47.96 acres of land had a separated value of $3,000 an acre, or that any person acting for Mutual sought to buy that tract separately and upon a basis different from purchase of the entire ranch at so much per acre for a lump sum figure. In fact, the minutes of the board of directors for Mutual reflect that as early as July 23 a report of its executive committee, instructed earlier on July 14 to investigate “purchase of the ‘Bul-lard Ranch,’ ” was received, and the Institution was that day “authorized to purchase [the] tract of land known as the ‘Bullard Ranch,’ containing 2,487.07 acres of land, more or less, for $650.00 per acre or for a total consideration of $1,616,595.50 ...”

One of Mutual’s officers testified that he considered Mutual was purchasing the ranch on a per acre basis. The executive committee, instructed on July 14 to study and investigate the matter of purchasing the ranch, made its recommendation based on the perimeter survey of May, 1969, which showed 2,487.07 acres in the ranch, at $650 per acre to calculate the recommended purchase price of $1,616,595.50. Adjustment for the extra 27.07 acres, revealed by the survey made in May, was based on $650 per acre.

Mutual’s president, testifying about the period of negotiations between July 14 and August 28, did not recall any mention of $3,000 per acre for any part of the ranch, and was unable to identify the portion of the ranch Mutual now contends it paid $3,000 an acre for.

Mutual’s controller calculated the cost of the ranch, employing a cost basis of $650 per acre, which was accepted by Mutual’s independent auditors and was known to its executive officers. The controller’s testimony shows that Mutual consistently treated the sale of the ranch as one by the acre, for $650 per acre, not only in bookkeeping records, but also when calculating cost basis for income tax purposes, and when reporting to regulatory agencies. No evidence was introduced showing that Mutual, for financial, tax, or any other purpose, at any time treated any part of the ranch it had bought on August 28, 1969, as costing $3,000 an acre. The highest evidence of intention can be found in the practical construction placed upon a contract by the parties themselves. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 553, 164 S.W.2d 504, 508 (1942); Superior Oil Co. v. Stanolind Oil and Gas Co., 150 Tex. 317, 323, 240 S.W.2d 281, 285 (1951).

We conclude that the closing instruments of August 28 evidence the final integrated agreement and clearly show what character of trade Mutual and Bullard made. We regard the provisions of the earlier Hendrix contract which are inconsistent with the closing instruments of August 28 as either part of preliminary negotiations or as having their sole purpose in providing a basis for notice to Foster. There is some testimony that Mutual officers believed that Foster no longer had a valid claim to his right of “first refusal.”

The inconsistent parts of the Hendrix writing were either rejected by the parties or abandoned in the trade consummated on August 28. No such provisions were carried forward in the closing instruments. Terms of the January 13 Hendrix contract are evidence inconsistent with the integrated sale agreement and are not competent to support the trial court’s findings that on August 28 Mutual paid $3,000 per acre for the 47.96 acres. The written instruments by which Mutual bought, and by which Bullard sold, the entire Casa Monte Ranch must be presumed to embrace the entire contract, and the prior inconsistent matters contained in the Hendrix contract, even if received in evidence by consent, cannot overcome that presumption. See Austin Bros. v. Patton, 294 S.W. 537, 539 (Tex.Comm.App.1927); 21 Tex.L.Rev. 778, 787; Tackett v. Cunningham, 91 S.W.2d 965, 968 (Tex.Civ.App. San Antonio 1936, no writ).

We have considered Foster’s first four points of error, under which we have disposed of the issues we decide favorably to Foster’s contentions. Under the remaining points of error Foster claims error of the trial court in findings which are inconsistent with our holding just stated. We sustain the points of error without further elaboration.

We hold that Foster, as the trial court held, is entitled to specific performance to acquire the 47.96 acres of land in dispute, and we further hold, contrary to the findings and conclusions of the trial court, that Foster is entitled to buy the 47.96 acres of land at a price of $750 per acre.

Mutual, as already observed, brings six points of error in its role as appellant. In the main, Mutual seeks by these claims to challenge the holdings of this Court in its prior opinion and to assign error to the trial court because that court heeded and followed our opinion. Without further discussion, all of Mutual’s points of error are overruled.

The judgment of the trial court is modified to provide that in exercising the right of specific performance Foster shall not be required to pay more than $750 per acre for the 47.96 acres described in the trial court’s judgment. As so modified, judgment of the trial court is affirmed.

      . This small tract appears to have been separated in this fashion out of consideration for the ranch foreman who had an option to buy his house located on that one-fourth of an acre.


author: LUKOWSKY, Justice.

text:
    FISCAL COURT OF JEFFERSON COUNTY, Kentucky, et al., Appellants, v. The COURIER-JOURNAL AND LOUISVILLE TIMES COMPANY et al., Appellees.
    No. 75-616.
    Supreme Court of Kentucky.
    June 10, 1977.

      J. Bruce Miller, Jefferson County Atty., Eugene L. Mosley, Asst. County Atty., Louisville, Charles Sandmann, Louisville, for appellants.
    Edgar A. Zingman, Jon L. Feischaker, Wyatt, Grafton & Sloss, Louisville, for ap-pellees.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Jefferson Circuit Court which interpreted, applied and enforced the “Kentucky Open Meetings Law”, KRS 61.805 et seq. The trial court:

(1) Declared void telephone votes of the Jefferson Fiscal Court which promoted and set the salary of a county employee and which approved the lease by the county of real estate for the use of the Social Services Department.

(2) Declared illegal the September 12, 1974 closed meetings of the Jefferson Fiscal Court which were held at a luncheon at the Louisville Boat Club and thereafter on a boat. The specific topics of the meeting were the continuing effort of the County Police to have the Fraternal Order of Police recognized as their bargaining agent, the operation of the Park and Recreation Department and the Belle of Louisville, and the potential acquisition of Twelve Mile Island by the county.

(3) Declared illegal the September 24, 1974 closed meeting of the Jefferson Fiscal Court with the County Attorney. The specific topics of the meeting were a draft of a proposed county ordinance prepared by the County Attorney which would permit electioneering near the polls and the implied threat of legal action by the League of Women Voters.

(4) Enjoined the members of the Fiscal Court “from conducting or participating in any further meetings held in violation of the law relating to open meetings. KRS 61.805 et seq.”

We affirm in part and reverse in part.

The first three actions of the trial court, except as to the discussion of proposed litigation by the League of Women Voters, are amply supported by the decision of the Court of Appeals in Jefferson County Board of Education v. The Courier-Journal and Louisville Times Company, Ky.App., 551 S.W.2d 25 (1977). We approve of both the reasoning and result of that opinion. We perceive no need to reinvent the wheel by restating the principles enumerated there. To this extent the trial court was not in error.

Jefferson County Board of Education, supra, makes it clear that public bodies may discuss proposed or pending litigation with their counsel in executive session. Consequently, to the extent that the meeting of September 24 dealt with the implied threat of legal action by the League of Women Voters it was not illegal. The decision of the trial court to the contrary was erroneous.

Implicit in Jefferson County Board of Education, supra, is the ancient requirement of equity jurisprudence that an injunction be neither too broad nor too vague. CR 65.02(1) sets the standard in the following language:

“Every . . injunction shall be specific in terms and shall describe in reasonable detail, and not by reference to the complaint or other document, the act restrained or enjoined.”

There is no escape from the conclusion that this language is mandatory. Mayflower Indus. v. Thor Corp., C.A.3d, 182 F.2d 800 (1950), cert. den., 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342. The injunction granted by the trial court does no more than direct the members of the Fiscal Court to obey the “Kentucky Open Meetings Law”, KRS 61.-805, et seq.

An injunction ought not enjoin in general terms the violation of the Interstate Commerce Act. Russell C. House Transfer & Storage Co. v. U. S., C.A. 5th, 189 F.2d 329 (1951). Blanket injunctions against general violation of a statute are repugnant to the American spirit and should not lightly be either administratively sought or judicially granted. Beatty v. U. S., C.A. 8th, 191 F.2d 317 (1951). The mere fact that a court has found that a defendant has committed an act in violation of a statute does not justify an injunction broadly to obey the statute and thus subject the defendant to contempt proceedings if he shall at any time in the future commit some new violation unlike and unrelated to that with which he was originally charged. NLRB v. Express Pub. Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930 (1941).

The injunction here is no more than the affirmative side of the negative injunction in Schmidt v. Lessard, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974) which simply told the defendants not to enforce “the present Wisconsin statutory scheme” for mental health commitment. That injunction blew away in the following judicial wind:

“As we have emphasized in the past, the specificity provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood. International Longshoremen’s Assn. v. Philadelphia Marine Trade Assn., 389 U.S. 64, 74-76, 88 S.Ct. 201, 206-208, 19 L.Ed.2d 236, Gunn, supra, at 388-389. See generally 7 J. Moore, Federal Practice ¶ 65.11; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2955. Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed. . . .”

The injunction here was not narrowly drawn as was that in Jefferson County Board of Education, supra. It is both over-broad and vague. See Developments in the Law — Injunctions, 78 Harv. Law Rev. 994, 1064 (1965). It was erroneously granted.

The other assignments of error are so patently without merit as to obviate the necessity for discussion.

The judgment is affirmed in part and reversed in part, and the cause is remanded with directions to enter a new judgment in conformity herewith.

All concur.


author: PER CURIAM.

text:
    James Carl HIGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 10, 1977.
    Jack Emory Farley, Public Defender, William M. Radigan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Appellant was convicted on the charge of larceny and sentenced to three years’ imprisonment.

He contends that the court erred by permitting the Commonwealth to call to the stand a co-indictee, Glenda Lenori, and ask her:

“On the night of July 1,1974, in Nicho-lasville, Kentucky, you saw the blue light of a Nicholasville cruiser, did the defendant, James Carl Higgs, state to you that he had ripped off a store in Lancaster, Kentucky?”
The witness replied:
“I refuse to answer on the grounds that it might incriminate me.”

When the Commonwealth proposed calling Glenda Lenori as a witness, defendant objected, and reminded the court that she was a co-indictee and compelling her to testify would be a violation of her constitutional rights against self-incrimination.

Under a somewhat similar set of facts the court held in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), that the confrontation clause of the Sixth Amendment of the United States Constitution was applicable since the defendant could not cross-examine the witness who invoked the protection of the Fifth Amendment. The court stated that the witness’ “ . . . reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” Obviously if appellant told Glenda Lenori that he “ripped off” a store in Lancaster, the statement would be most damaging to his defense. With the jury’s tendency to accept as true a statement unanswered by a witness who invokes the Fifth Amendment privilege, together with the defendant’s inability to cross-examine the witness, defendant is unduly prejudiced. In the present case, although there was ample competent evidence to support a verdict of guilty, the evidence was entirely circumstantial and not so overwhelming as to render the error nonprejudicial. And the error was compounded by the prosecutor’s aware-

ness that appellant would invoke the privilege.

The judgment is reversed and remanded for a new trial.

All concur.