text:
    J. D. PARR, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 17754.
    Court of Civil Appeals of Texas, Fort Worth.
    April 16, 1976.
    Sewell & Forbis and James E. Forbis, Decatur, for appellant.
    Jack E. Shriver, County Atty., Wise County, Decatur, for appellee.
   OPINION

MASSEY, Chief Justice.

The appeal is from summary judgment suspending Texas Commercial Operator’s License and driving privileges for a period of twelve months.

We reverse the judgment and remand the cause.

On or about April 21,1975, J. D. Parr was involved in a one vehicle collision in Wise County, Texas. He was injured. He was still at the scene and still in his automobile when the Police Officer, McFerrin, arrived. McFerrin inquired as to who had been driving the vehicle in question and Parr stated that he was such party. McFerrin was of the opinion that Parr was under the influence of intoxicating liquor. Parr was removed from the scene by ambulance. Initially he was transported to the Community Hospital in Decatur, and shortly thereafter was removed to the Veteran’s Hospital at Dallas.

The Department of Public Safety, by administrative hearing procedure under the provisions of two separate Articles, suspended Parr’s license. The Articles were V.A.T.S. Art. 6687b, “Driver’s, chauffeur’s, and commercial operator’s licenses; accident reports”, with Art. IV thereunder, “CANCELLATION, SUSPENSION, AND REVOCATION OF LICENSES”, and also V.A.T.S. 67011 — 5, “Chemical tests for intoxication; implied consent; evidence”.

From such order of the Department Parr filed his appeal in the County Court of Wise County on October 6, 1975. On or about November 7,1975 the Texas Department of Public Safety moved for summary judgment in suspension of Parr’s license. Officer McFerrin’s sworn statement, as a record of report on file with the Department of Public Safety, was appended in support of the Department’s motion for summary judgment. The same statement was likewise appended as a record of report on file with the County Attorney of Wise County. It was the Department’s only evidence.

McFerrin states, insofar as material, only as follows: “I arrested J. D. Parr” and “Parr was arrested . . . and read his rights . . . Also: “Parr was transported to Decatur Clinic Hospital where he was found to have a cracked ankle. While at the hospital Parr refused to take a breath test, blood test, or urine test and refused to answer any questions.” Nothing in the McFerrin affidavit related to restraint imposed upon Parr at any time, nor was anything stated relative to Parr having been placed in the charge or custody of anyone.

Imposition of restraint, placement in custody with accompanying control and/or detention, and the like is necessary to official arrest of anyone by an agent of the State. Mere words stated to one of the fact of arrest, without more, is insufficient. See 6 Tex.Jur.2d, p. 138, “Arrest”, Sec. 1, “In general; What constitutes an arrest”.

Affidavits consisting of mere conclusions of law or of fact, without supporting evidence, are insufficient to support a summary judgment. 4 McDonald’s Texas Civil Practice, 1971 Revision, p. 147, “Judgments”, Sec. 17.26.5, “(Summary Judgment. —C. Procedure)_(b) Form.” To us it appears that to decide Parr was ever under arrest would require the drawing of a conclusion, and that McFerrin’s statements relative to an arrest of Parr amounted to no more than his conclusion.

Article 67017 — 5, above, provides by Sec. 2: “If a person under arrest refuses, upon the request of a law enforcement officer, to submit to a chemical breath test designated by the law enforcement officer as provided in Section 1, none shall be given, but the Texas Department of Public Safety, upon the receipt of a sworn report of the law enforcement officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor and that the person had refused to submit to the breath test upon the request of the law enforcement officer, ... if, upon such hearing the court finds (1) that probable cause existed that such person was driving or in actual physical control of a motor vehicle on the highway while under the influence of intoxicating liquor at the time of the arrest by the officer, (2) that the person was placed under arrest by the officer at such time and before offering the person an opportunity to be tested under the provisions of this Act, and (3) that such person refused to submit . . . the Director of the Texas Department of Public Safety shall suspend the person’s license or permit to drive . . . not to exceed one (1) year. .” (Emphasis supplied.)

While in the aspect under consideration we believe there was a failure on the part of the Department to support its summary judgment because to grant it necessarily required conclusions of law or fact by the court below upon evidence amounting to mere conclusions there was, in addition, the controverting affidavit of Parr, which stated (1) he was not placed under arrest following the accident, (2) he was not requested to take the breath test which Officer McFerrin stated that he had refused, and (3) that he never refused to take such a test. Of course Parr additionally stated that he was not intoxicated or under the influence of intoxicating liquor. Aside from the conclusions of law or fact apparent in Parr’s own affidavit he did directly swear that there had been no request that he take the test which was the subject of Article 67011 — 5. Under these circumstances, even if we were not of the opinion that there was insufficiency for support of the summary judgment before concerning ourselves with the counter affidavit, it is furthermore evident, in view of Parr’s counter affidavit, that the Department has failed to demonstrate the lack of any genuine issue of fact to be tried. Such is essential to rendition of proper summary judgment. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956).

Additional impropriety of the summary judgment is observed when it is noted that the trial court ordered the suspension of Parr’s license for a period of one year. The proper period of any suspension of operating privileges is clearly a question of fact which cannot be resolved by summary judgment. The impropriety of the summary judgment is conceded by the Department for this reason. However, counsel seems to say that the Legislature intended to deny right of appeal of suspension of the driving privilege to the appellate courts. If so, the answer is in one of the cases cited by him. Therein it is stated as part of the explanation of the law that there may be appeal to the appellate courts where such a suspension is ordered upon trial de novo in a lesser court. Williams v. Texas Department of Public Safety, 371 S.W.2d 747, 749 (Tex.Civ.App., Houston, 1963, no writ history).

Judgment is reversed and the cause remanded for trial.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    NORMAN & SCHAEN, INC., et al., Appellants, v. CITY OF DALLAS, Appellee.
    No. 18815.
    Court of Civil Appeals of Texas, Dallas.
    April 22, 1976.
    Rehearing Denied May 20, 1976.

      Thomas A. Blakeley, Jr., Grady, Johnson, Smith & Blakeley, Dallas, for appellants.
    Alex Bickley, City Atty., Carroll R. Graham, Asst. City Atty., Dallas, for appellee.
   GUITTARD, Justice.

In this action for water damage to the contents of a building, the principal question is whether the City had a duty to avoid the damage by constructing a larger storm drain than one constructed more than forty years before the floods in question. We hold that the City had no such duty, and, consequently, that the trial court properly refused to submit special issues concerning the City’s alleged negligence in maintaining a drain with the insufficient capacity to accommodate the water expected to flow through it. We also hold that the court properly excluded testimony concerning inadequacy of the drain.

The suit was brought by Norman & Schaen, Inc. and Regina Manufacturing Company, occupants of a building at Second Avenue and Elihu Street in South Dallas near Fair Park. In the summer of 1973, Norman & Schaen was a wholesaler of rugs, and Regina was a manufacturer of bedspreads and bedroom furnishings. Both companies used a warehouse area in the building for storage. On June 3,1963, after a heavy rain, water rose on Elihu Street and adjacent property so as to inundate the warehouse area to a level of eighteen or nineteen inches above the floor. Materials and merchandise stored on pallets four to six inches high were damaged. After the flood plaintiffs undertook to erect platforms so as to raise the materials and merchandise two to six inches above the previous water level. On July 7 of the same year, before this work was completed, another flood occurred in which water rose to twenty-eight inches above the floor. Additional damage was sustained in the second flood by Regina, but not by Norman & Schaen.

The principal drainage facility in the area was a storm sewer constructed by the City in 1932. This sewer followed the general course of a small creek, which was filled in when the sewer was installed. The creek, and the sewer which replaced it, crossed the lot on which the building in question was later constructed. In fact, the building was located directly over the storm sewer and old creekbed.

The sewer was constructed according to plans which designated it as sufficient to accommodate a five-year flood, that is to say, a flood of a magnitude that would be expected to occur with an average frequency of not more than once in five years. It was not designed to accommodate larger floods that might be expected to occur less frequently. Although the interval between the two floods in question was less than five weeks, they were both of greater magnitude than would be expected to occur once in five years.

Plaintiffs allege three grounds of negligence on the part of the City: (1) failing to maintain a storm drain of adequate size, (2) failing to install adequate inlets to the storm drain at Elihu Street, and (3) allowing the inlets to become obstructed by debris. The trial court refused to receive evidence concerning inadequacy of the drain or the inlets. The court submitted issues concerning obstruction of the inlets, but the jury failed to find that the inlets were so obstructed at the time of either flood. Judgment on the verdict was rendered for the City, and both plaintiffs appeal.

Plaintiffs’ first twenty-eight points of error relate to the question of whether the City may be held responsible for damages resulting from constructing or maintaining inadequate drains or inlets. We hold that the City has no legal responsibility in this respect. The basic rule is that the construction of sewers and drains is within the discretion of the governing body of the city so long as the city does nothing to increase the flow of surface waters across the land in question. City of Houston v. Bryan, 2 Tex.Civ.App. 553, 22 S.W. 231 (1893). See, City of Dallas v. Winans, 262 S.W.2d 256 (Tex.Civ.App.-Dallas, 1953, no writ); Johnston v. Dist. of Columbia, 118 U.S. 19, 6 S.Ct. 923, 30 L.Ed. 75 (1886). Since partial protection against floods is better than none at all, if the city undertakes to provide drainage, it has no duty to provide facilities adequate for all floods that may reasonably be anticipated. The existence of such liability would tend to deter the city from providing even partial relief from flooding. The extent of the protection to be provided is within the discretion of the governing body, which must weigh the needs of the entire community and allocate available resources so as best to serve the interests of all its citizens. To award damages in a private action for insufficient drainage of a particular tract of land would be to permit use of the judicial process to supervise the planning and construction of public improvements. Municipal fiscal policy, instead of being set for the city as a whole by the elected representatives of the people, would be subject to piecemeal review and revision by courts in separate actions concerned primarily with the interests of one or more individual landowners and their lessees. Hession v. Mayor of Wilmington, 1 Marv. 122, 40 A. 749, 752-53 (Del.Supr.Ct.1893), and cf. Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992, 994 (1949).

These considerations are conclusive against the City’s liability for negligence in the present case. Plaintiffs did not establish that the damage complained of was caused by diversion of more water across the land than would have flowed across it if no storm sewer had been constructed. They attempt to supply this essential proof by asserting that when the concrete sewer was installed, the circuitous route followed by the old creek was straightened and thus water from upstream was concentrated more rapidly in the area of Elihu Street. They also assert that if the natural drainage had been undisturbed the excess water would have simply flowed down the old creek rather than into the building which they occupied. These assertions are not supported by the record. The storm sewer in question did not end at Elihu Street, but continued for more than a mile and emptied into an open channel. Increasing the rate of flow would carry the water away more quickly, and thus reduce rather than increase the level of the water at the height of the flood. Presumably, the purpose of the concrete sewer was to reduce flooding by providing increased drainage capacity as compared to that of the old creek, and plaintiffs offered no evidence to show that the sewer did not provide at least partial protection. Neither did plaintiffs offer proof that the capacity of the sewer was less than that of the creek.

In fact, the record indicates that the construction of the building in question in its position across the old creek bed as well as over the storm sewer would not have been feasible if the sewer had not been constructed. That building blocks the emergency overflow system contemplated by the 1932 drainage plan and forms a dam which obstructed the drainage of waters away from Elihu Street on the two occasions in question. Although the City granted a permit for the construction of a building at that location, plaintiffs do not allege that action as a ground of liability. They contend rather that an issue should have been submitted to the jury inquiring whether the City maintained the storm sewer in question “with insufficient capacity to fairly accomodate water reasonably expected to flow through it.”

The City acknowledges that the 1932 drain is not sufficient to accommodate all the water that may reasonably be expected to accumulate in the drainage area. It concedes that this sewer was designed only to protect against floods that would be expected to occur, on an average, as frequently as once in five years, not floods of greater magnitude that might be anticipated at longer intervals. But, the City insists that it has no legal duty to provide protection against more severe floods. We agree for the reasons already stated. Plaintiffs are in no position to complain that the 1932 sewer afforded partial rather than complete protection against anticipated floods. Consequently, the trial court correctly excluded evidence offered to show the inadequacy of the storm drain in question and properly refused to submit issues inquiring whether the City was negligent in constructing a storm sewer of insufficient capacity.

Similar considerations govern plaintiffs’ contention concerning adequacy of the inlets to the storm sewer on Elihu Street. In the absence of proof that construction of the sewer diverted more water across the land in question and thus presented a greater hazard of damage from flooding, no liability exists for inadequacy of the inlets. Moreover, the present record fails to show any causal relation between the size of the inlets and the damage sustained. The City presented evidence tending to show that the damage complained of would not have been reduced by larger inlets on Elihu Street because on both occasions, at the height of the flood, the storm sewer was filled to capacity by water from upstream that prevented water from flowing into the drain through the inlets on Elihu Street. Thus, larger inlets would not have reduced the high-water level. Although there is testimony that the water might have drained away sooner if larger inlets had been provided on Elihu Street, the City’s evidence also indicates that the damage was done when the water flowed into the building at the height of the flood, and that no additional damage occurred as a result of the continued high water on Elihu Street. This evidence may not have been conclusive, but plaintiffs failed to present any evidence tending to show that larger inlets at Elihu Street would have avoided any of the damage in question. Consequently, the trial court properly refused to submit these issues to the jury.

For the reasons stated we overrule plaintiffs’ first twenty-eight points and we do not reach the other points of error presented.

Affirmed.


author: J. CURTISS BROWN, Chief Justice. CIRE, Justice

text:
    Alice M. RED, Appellant, v. George RED, Appellee.
    No. 1292.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 28, 1976.
    Rehearing Denied May 19, 1976.

      J. Philip Wandel, Dohoney, Collier, Cartwright & Wandel, Houston, for appellant.
    James R. Lewis, Tyler, for appellee.
   MAJORITY OPINION

J. CURTISS BROWN, Chief Justice.

This is a suit for child support by Alice M. Red (appellant) against George Red (appel-lee). Appellant labeled her action “Motion to Modify — Suit Affecting Parent-Child Relationship Requiring Continued Support.”

The following chronological order of events and circumstances may assist in the understanding of the issue presented by this appeal;

(1) Appellant was granted a divorce from appellee in 1963. She was given custody of their fourteen year old daughter Diana Red (Diana). Appellee was ordered to make payments for the support of the child until she reached age eighteen.

(2) At the time of the divorce and afterward until January 1, 1974, child support in Texas was governed by Tex.Laws 1961, ch. 305, § 1, at 663 (hereinafter referred to as Article 4639a) and by Tex.Laws, 1st Called Sess. 1961, ch. 31, § 1, at 135 (hereinafter referred to as Article 4639a-l).

(3) Diana became eighteen years of age on July 9, 1966.

(4) No modification of the judgment entered in 1963 was sought. However, appel-lee continued to voluntarily make support payments after Diana reached age eighteen. No order was sought or entered under the provisions of Article 4639a-l.

(5) On January 1, 1974, Title 2 of the Texas Family Code — which included § 14.-05(b) — became effective, and Articles 4639a and 4639a-l were simultaneously repealed.

(6) After the effective date of the Family Code appellee stopped the voluntary payments for the support of his child.

(7) Appellant thereafter instituted this suit. Diana was then twenty-six years of age.

It was alleged by appellant in her motion that Diana had become physically and mentally disabled before reaching age eighteen, that appellee had contributed to her support as ordered by the court in the 1963 divorce decree, that appellee had voluntarily contributed to her support beyond age eighteen, and that appellee did not reduce or discontinue support payments until a few months after the passage of Title 2 of the Family Code. The motion sought support for the duration of the child’s life pursuant to Tex.Family Code Ann. § 14.05 (1975). The trial court, which was the same court that had rendered the 1963 judgment sought to be modified, dismissed the cause for want of jurisdiction. Appellant has perfected this appeal.

In determining the jurisdictional question, the allegations of the appellant are controlling in determining whether or not the court had jurisdiction of the subject matter. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466 (1949). All intendments permissible under a liberal construction of the pleading will be indulged in favor of jurisdiction. Pecos & N. T. Ry. Co. v. Rayzor, 172 S.W. 1103 (Tex.Sup.1915).

The parties press different constructions of the cases of Ex parte Hatch, 410 S.W.2d 733 (Tex.Sup.1967) and Tharp v. Tharp, 438 S.W.2d 391 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ dism’d). However, since the jurisdiction of the court under Article 4639a-l was never invoked during the time such law was effective, we need not consider the question of whether appellant or Diana could have benefited by that statute after she reached eighteen years of age. The fact is that although she was clearly eligible for support under the provisions of Article 4639a — 1, the aid of this statute was not sought at any time until the present suit was filed. The order in the original divorce suit was a final judgment subject to modification as allowed by law. See Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247 (1955). The original divorce action was not “pending” on January 1, 1974. See Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.Sup.1975).

The enactment clause of Title 2 of the Family Code, contained in Chapter 11, reads as follows:

“(a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. All things properly done under any previously existing rule or statute prior to the taking effect of this Act shall be treated as valid.
.“(b) Any action or suit commenced after January 1, 1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction.”

Under the holding of our supreme court in Curtis v. Gibbs, 511 S.W.2d 263 (Tex.Sup.1974), appellant’s action is a suit affecting the parent-child relationship and, therefore, is a new suit governed by the provisions of the Family Code. Section 14.-05(b) of the Family Code is applicable. The statute provides that the court “may order that payments for the support of the child shall be continued after the 18th birthday and extended for an indefinite period” (emphasis ours). We believe that the clear import of this statute is that the eligibility of a child for support under this section must be invoked before the child reaches 18 years of age. We base this construction upon the legislature’s use of the words “be continued.” We do not believe that the legislature would have used this language had it intended that the matter could be raised throughout the lifetime of the “child”.

In view of our construction of the Family Code as applied to this case it is not necessary for us to consider appellee’s contention that to allow Diana the benefit of § 14.05(b) would be unconstitutional as a retroactive law. The action of the trial court in dismissing this cause for want of jurisdiction of the subject matter is affirmed.

Affirmed.

CIRE, Justice

(dissenting).

I respectfully dissent. I would not so strictly construe Section 14.05(b) of the Family Code. It was obviously enacted for the benefit of disabled children, and should be liberally construed to effectuate that purpose. Under the prior statute, Article 4639a-l, the trial court would have had jurisdiction to consider this matter, and I think the legislature did not intend to deprive the courts of such jurisdiction by the enactment of the Family Code. If the majority’s construction is correct, then a disabled child who is past the age of eighteen at the time of its parents’ divorce would not be entitled to support from the non-custodial parent. I do not believe the legislature intended this result. I would reverse and remand this case.

      . “Section 1. Each petition for divorce shall set out the name, age, sex and residence of each child under eighteen (18) years of age bom of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No court having jurisdiction of suit for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. Upon the trial of any such cause, and in the event a divorce is granted by the court, if there are such minor children, it shall be the duty of such trial court to inquire into the surroundings and circumstances of each such child or children, and such court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; provided, however, that the judgment of the court in a jury trial of a divorce cause may not contravene the jury’s determination of child custody. In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce cause or not, any party to the hearing may, upon assumption of jury costs, demand a jury to determine custody of the child, and the judgment of the court must conform to that determination. The court may by judgment order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children, and such court shall have full power and authority to enforce said judgments by civil contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, and for the purpose of ascertaining the ability of the parents of such child or children to contribute to the support of same, they may be compelled to testify fully in regard thereto, under penalty of contempt of court, as in other cases. Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.”

      . “Art. 4639a-l. Children Requiring Custodial Care
      “In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, born of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law.”

      . “(b) If the court finds that the child, whether institutionalized or not, requires continuous care and personal supervision because of a mental or physical disability and will not be able to support himself, the court may order that payments for the support of the child shall be continued after the 18th birthday and extended for an indefinite period.”


author: CURTISS BROWN, Chief Justice.

text:
    Oscar Burton HOLMQUIST, Jr., et ux., Appellants, v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA et al., Appellees.
    No. 1281.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 28, 1976.
    Rehearing Denied May 19, 1976.

      Conway L. Wallace, Houston, for appellants.
    Donald H. Fidler, James W. Cox, Sheryl B. Johnson, Baker & Botts, Houston, for appellees.
   CURTISS BROWN, Chief Justice.

This is a suit to collect the proceeds of a life insurance policy.

Oscar Burton Holmquist, Jr. and his wife, Beulah Dee Holmquist (“the parents” or appellants) brought suit against Occidental Life Insurance Company of California (Occidental) to recover the proceeds of a policy insuring the life of their son Ralph Burton Holmquist. Occidental filed an interpleader naming as defendants the parents, the insured’s brother Nelson Holmquist, and the insured’s daughter, Cynthia Lynn Holm-quist Cole (“the daughter”), by and through her guardian, and tendered into court the proceeds of the policy, $10,000.00, plus interest in the amount of $110.00. An interlocutory order was signed dismissing Occidental from the suit. Both the parents and the daughter filed motions for summary judgment. The trial court granted the daughter’s motion and denied that of the parents. The parents have perfected this appeal.

The insured died March 23, 1974 from injuries sustained in an industrial accident. Through his employer the insured maintained, at the time of his death, a $5,000 group policy with a provision for double indemnity in the event of accidental death. No beneficiary was designated by the insured. The terms of the policy provided that where no beneficiary was designated the benefits would be paid

“to the surviving person or persons in the first of the following classes of successive preference beneficiaries of which a member survives the individual:
The individual’s (a) spouse; (b) children, including legally adopted children; (c) parents; (d) brothers and sisters; (e) executor or administrator.”

The insured was single at the time of his death, having been divorced from his only wife. Cynthia Lynn Holmquist Cole, the only child born of the marriage, had been adopted by her mother’s second husband prior to the death of the insured.

Appellants’ first point of error asserts that the trial court erred in awarding the proceeds of the policy to the daughter. The question is whether a child who has been legally adopted by another falls within the preference beneficiary class of “(b) children, including legally adopted children. . ” If so, the daughter is entitled to the proceeds; if not, the parents are.

A life insurance policy is a contract. Such meaning should be given to the contract as will effectuate to the fullest extent the intention of the parties.

At the time this insurance contract was entered into in 1973, the law regarding the effect of an adoption on the status of the adopted child was contained in Tex.Rev. Civ.Stat.Ann. art. 46a, § 9 (1969). Article 46a contemplated a total and final severance of legal relations between parent and child after adoption. Rodgers v. Williamson, 489 S.W.2d 558 (Tex.Sup.1973); Patton v. Shamburger, 431 S.W.2d 506 (Tex.Sup.1968). Section 9 has been construed to deny visitation rights to natural grandparents. Smith v. Painter, 412 S.W.2d 28 (Tex.Sup.1967) (per curiam); DeWeese v. Crawford, 520 S.W.2d 522 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n. r. e,). It has been held that after an adoption the adopted child is no longer the “minor child” of the natural father under the workmen’s compensation statute. Patton v. Shamburger, supra; Zanella v. Superior Insurance Co., 443 S.W.2d 95 (Tex.Civ.App.-Eastland 1969, writ ref’d). Based on the above interpretations and the language of the statute itself, we believe the correct rule is that the terms “child” and “children” do not include a child adopted by another unless the context or express language of the instrument indicates otherwise. It was therefore error for the trial court to grant summary judgment for the daughter.

Appellants’ second point of error asserts that the trial court erred in dismissing Occidental from the suit before a final judgment was entered. Appellant contends that because the interpleader was not filed within thirty days after demand was made Occidental is liable under Tex.Ins.Code Ann. art. 3.62 (1963) for a statutory penalty of 12% and attorney’s fees.

By a letter dated July 25, 1975, the parents demanded payment “either through the Administrator of the Decedent’s Estate or by virtue of the right vested by Contract in the surviving Mother and Father. . ” On August 28 the parents filed suit, seeking the principal amount, accrued interest, the statutory penalty, and attorney’s fees. By a letter dated August 29, Occidental advised the parents that it would treat the matter as “a rival claimant situation.” The letter further stated that if no compromise settlement could be reached Occidental would pay the proceeds into court. On September 19 Occidental filed its Original Answer, which consisted of a general denial. On October 24, ninety-one days after the parents’ demand letter was sent, Occidental filed an interpleader and tendered the proceeds of the policy into the registry of the court. The trial court entered an order dismissing Occidental from the suit without allowing the statutory penalty or attorney’s fees against it.

It has generally been held that where an insurer has reasonable grounds for anticipating rival claims, declines in good faith to pay a beneficiary, and, admitting liability, deposits the money into court to be paid to the rightful person as determined by the court, then a failure to pay the money into court within thirty days after demand may not render the insurer liable for the statutory penalty and attorney’s fees. Great American Reserve Ins. Co. v. Sanders, 525 S.W.2d 956 (Tex.Sup.1975) (37 days); Gabler v. Minnesota Mutual Life Insurance Co., 498 S.W.2d 413 (Tex.Civ.App.-Texarkana 1973, no writ) (16 months); Givens v. Girard Life Insurance Co. of America, 480 S.W.2d 421 (Tex.Civ.App.-Dallas 1972, writ ref’d n. r. e.) (71 days); Murray v. Bankers Life Co., 299 S.W.2d 730 (Tex.Civ.App.-Fort Worth 1957, writ ref’d) (79 days); Franklin Life Ins. Co. v. Greer, 219 S.W.2d 137 (Tex.Civ.App.-Texarkana), rev’d on other grounds, 148 Tex. 166, 221 S.W.2d 857 (1949) (relevant holding specifically approved) (1 year). We hold that the present case is not one which would warrant the imposition of the statutory penalty and attorney’s fees against the insurer; therefore, the trial court was correct in dismissing Occidental from the suit. See Hartman v. Crain, 398 S.W.2d 387 (Tex.Civ.App.-Houston 1966, no writ); Davis v. Supreme Lodge K. P. Ins. Department, 31 S.W.2d 359 (Tex.Civ.App.-Galveston 1930, writ ref’d).

Appellants’ third point of error asserts that the trial court erred in awarding $400.00 in attorney’s fees to Occidental. Since interpleader was properly available to Occidental, the award of attorney’s fees was proper. Great American Reserve Ins. Co. v. Sanders, supra; Givens v. Girard Life Ins. Co. of America, supra.

Based on the summary judgment evidence before us, there would appear to be no genuine issue of material fact. In the situation where both parties file motions for summary judgment in the trial court and one is granted and the other denied, an appellate court is authorized, upon a reversal of the trial court’s judgment, to render such judgment as the trial court should have rendered on all questions presented. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958). However, in so doing the court may act on a denied motion for summary judgment only if the failure of the trial court to grant the motion has been properly preserved on appeal. Gulf, Colorado & Santa Fe Ry. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958). See also Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.Sup.1966).

In the instant case the appellants’ only point of error relevant to this matter states: “The Court erred in awarding the proceeds of the insurance policy to the minor child.” This point is sufficient to preserve the error in granting the daughter’s motion for summary judgment, but does not preserve the error of the trial court in failing to grant appellants’ motion. Therefore, we cannot render judgment, but must remand the case to the trial court. See Farah Mfg. Co. v. Continental Airlines, Inc., 524 S.W.2d 815 (Tex.Civ.App.-El Paso 1975, writ ref’d n. r. e.); Henderson v. Nitschke, 470 S.W.2d 410 (Tex.Civ.App.-Eastland 1971, writ ref’d n. r. e.).

The judgment of the trial court granting summary judgment to appellee Cynthia Lynn Holmquist Cole is reversed, and the cause is remanded. The judgment of the trial court dismissing Occidental Life Insurance Company of California from the case and awarding to it the sum of $400.00 as attorney’s fees is severed and affirmed.

Reversed and remanded in part, and affirmed in part.

      . Section 9, found in Tex.Laws 1951, ch. 249, § 3, at 390-91, provided:
      “Section 9. When a minor child is adopted in accordance with the provisions of this Article, all legal relationship and all rights and duties between such child and its natural parents shall cease and determine, and such child shall thereafter be deemed and held to be for every purpose the child of its parent or parents by adoption as fully as though naturally bom to them in lawful wedlock. Said child shall be entitled to proper education, support, maintenance, nurture and care from said parent or parents by adoption, and said parent or parents by adoption shall be entitled to the services, wages, control, custody and company of said adopted child, all as if said child were their own natural child. For purposes of inheritance under the laws of descent and distribution such adopted child shall be regarded as the child of the parent or parents by adoption, such adopted child and its descendants inheriting from and through the parent or parents by adoption and their kin the same as if such child were the natural legitimate child of such parent or parents by adoption, and such parent or parents by adoption and their kin inheriting from and through such adopted child the same as if such child were the natural legitimate child of such parent or parents by adoption. The natural parent or parents of such child and their kin shall not inherit from or through said child, but said child shall inherit from and through its natural parent or parents. Nothing herein shall prevent any one from disposing of his property by will according to law. Such adopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well, except that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption, such adopted child shall not be included in such class. The legal adoption of a child according to the laws of another State of the United States, residing in the State of Texas, shall be, in all respects, valid and binding as if the adoption had occurred in the State of Texas, insofar as the effects of the adoption and the right of inheritance may be concerned as provided in this Act.” (Emphasis added.)
      The relevant provisions of § 9 were carried forward with little, if any, substantive change in Tex.Family Code Ann. §§ 15.07, 16.09 (1974).

      . Art. 3.62. Delay in Payment of Losses; Penalty For
      In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case. The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.


text:
    Barbara J. STARKEY, Appellant, v. Paul Y. HOLOYE et al., Appellees.
    No. 1293.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 28, 1976.
    Rehearing Denied May 19, 1976.

      Donald G. Ritter, Houston, for appellant.
    George M. Clifton, Lew W. Harpold, Hof-heinz & Harpold, Max H. Jennings, Clawson & Jennings, L. H. Lynch, Houston, for ap-pellees.
   CURTISS BROWN, Chief Justice.

This is a suit in trespass to try title and for the partition of real property.

Barbara J. Starkey (appellant) filed suit against Paul Y. Holoye, Carolyn M. Holoye, and United Mortgage Company of Texas (appellees) for title to an undivided one-half interest in certain real property, for a partition of the property or the proceeds from the sale thereof, to have certain liens on the property declared to be of no force and effect as against her interest in the property, and for the reasonable rental value of the property during the time that the Ho-loyes have used and occupied it. The Ho-loyes filed a cross-action against William J. Safford and Marian R. Safford, from whom they purchased the property, for all expenses and attorney’s fees incurred by them in the defense of this suit and for the amount of any judgment that might be recovered against them. The Holoyes moved for a declaratory judgment, and Starkey moved for summary judgment. Denying Starkey’s motion and granting that of the Holoyes, the trial court entered a judgment declaring that Starkey was entitled to recover from the Saffords a sum of money equal to one-half of the net market value of the property on April 18,1961, said amount to be determined later; that upon determination and payment of said amount the Holoyes would be entitled to recover the entire legal and equitable title to the property, subject to the lien of United Mortgage Company; that the Holoyes were entitled to recover against the Saffords all reasonable costs and expenses of the litigation; that neither partition nor sale of the property should be ordered; and that any liens on the property should not be declared to be of no force or effect as against Starkey’s interest. Starkey has perfected this appeal.

Barbara J. Starkey is the former wife of William J. Safford. During the time that these parties were married, they acquired the real property in question as community property. They were divorced in 1961. The divorce decree stated, in pertinent part:

“Barbara J. Safford and William Joseph Safford are found to own in community between them as of April 13, 1961, the house and lot located at 3510 Durhill Street, Houston, Texas with furniture and furnishings located therein, and no partitioning of same is hereby made, but based on the findings of facts herein made by both the Court and the Jury, the Court finds that except as is hereinafter specifically set out, said house and its furniture and furnishings should be set aside as a home for the minor children of the Parties hereto; and it is accordingly therefore Ordered, Adjudged and Decreed that the house or home, furniture and the furnishings belonging to the Parties hereto and located at 3510 Durhill Street in Houston, Texas (save and except as to a piano, a stamp collection of the value found to be $400.00, personal clothing of Barbara J. Safford, and other small personal effects of hers) are hereby set aside and awarded to William Joseph Safford and the minor children of the Parties hereto for their use and benefit and as their home, until the youngest of said children shall have reached the age of eighteen (18) years, during all of which time Defendant and Cross-Plaintiff, William Joseph Safford, shall have the use, income and benefits of same, and the Plaintiff and Cross-Defendant, Barbara J. Safford, shall not during such time have any right to any of the use, income and benefits thereof, nor shall she have the right during said time of entering same for any purposes whatsoever.
⅝ * * ⅛ ⅝5 ⅜!
“With reference to the community property referred to in Paragraph V hereinabove, all future payments and equity created in such property from and after April 13, 1961 by payments made thereon by William Joseph Safford is hereby declared the separate property of the said William Joseph Safford.”

Subsequent to the divorce, William J. Saf-ford married his present wife, Marian. The youngest of the Safford children referred to in the divorce decree reached eighteen in 1971. On December 21, 1973, the Saffords purported to convey the entire property to the Holoyes by a general warranty deed, which was subject to a vendor’s lien assigned to United Mortgage Company.

The question for decision here is whether the above divorce decree gave William J. Safford an undivided one-half interest in the property with a right of reimbursement for any payments made on the property after April 13,1961, or whether a¡1 increase in the value of the property after that date was to accrue to him. The trial court took the latter view, thereby confining Barbara J. Starkey’s interest to one-half of the net market value of the property on April 13, 1961. We disagree.

In the case of Maisel v. Maisel, 312 S.W.2d 679 (Tex.Civ.App.-Houston 1958, no writ), the court was required to construe a substantially similar provision. In that case the divorce decree set aside certain real property for the use and enjoyment of the wife and children until she remarried or they ceased to use the property as a homestead, and recited that

“all future payments and equity created in such property from and after the date of this judgment be and is hereby declared the separate property of the plaintiff. . . .’’Id. at 682.

After struggling to discern the intent of the parties and the judge, the court concluded that “the terms ‘equity’ and ‘payments’ were used to mean the same thing. We think the court meant the equity created by the payments.” Id. at 684.

In the instant case the parties’ intent is apparent on the face of the decree, for the provision in question reads “all future payments and equity created . by payments made thereon . . . ” (emphasis added). It was therefore error for the trial court to hold that all increase in the value of the property after April 13, 1961 accrued to William J. Safford. Only the increase created by the payments — i. e., the aggregate amount of his payments — accrued to him. Cf. Leach v. Meyer, 284 S.W.2d 164 (Tex.Civ.App.-Austin 1955, no writ).

Since the property was not partitioned at the time of the divorce, William J. Safford and appellant became tenants in common or joint owners thereof, each owning an undivided one-half interest. Busby v. Busby, 457 S.W.2d 551 (Tex.Sup.1970). With a deed on record showing the owners of the property to be William J. Safford and Barbara Safford, the Holoyes could not have purchased from William J. Safford and Marian Safford any greater interest in the property than was owned by William J. Safford: an undivided one-half interest. Upon their purchase of William J. Safford’s interest, the Holoyes became tenants in common with appellant. Appellant presently owns an undivided one-half interest, subject to a claim by William J. Safford for reimbursement for any payments made on the property after April 13,1961. Since she is still a joint owner of the property, and absent any agreement not to partition, appellant’s right to partition is absolute under Tex.Rev.Civ.Stat.Ann. art. 6082 (1970). Moseley v. Hearrell, 141 Tex. 280, 171 S.W.2d 337 (1943); Spires v. Hoover, 466 S.W.2d 344 (Tex.Civ.App.-El Paso 1971, writ ref’d n. r. e.).

Further, the Holoyes could not mortgage more of the property than they owned. Winters v. Slover, 151 Tex. 485, 251 S.W.2d 726 (1952). Therefore, they could not mortgage appellant’s interest, and the lien asserted by United Mortgage Company is ineffective as to appellant’s one-half interest.

By way of a motion to dismiss, ap-pellees argue that the judgment rendered by the trial court was not a final, appeala-ble order. They contend that the judgment did not dispose of all parties and issues because there remained for final determination the net market value of the property in question on April 13, 1961. The following rule has been adopted in Texas:

“However, the finality of a judgment that settles the rights controverted by the parties is not affected by the fact that further proceedings may be required to carry it into full effect, even though such proceedings may be expressly provided for, if they are merely incidental to the proper execution of the judgment.” Dunn v. Dunn, 439 S.W.2d 830, 833 (Tex.Sup.1969).

Accord, Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 947 (1960); Hargrove v. Insurance Inv. Corp., 142 Tex. 111, 176 S.W.2d 744 (1944). See also Annot., 3 A.L.R.2d 342 (1949). In the instant case the trial court’s judgment definitely settled the rights and equities of the parties; therefore it was a final judgment for appeal purposes.

The judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    William E. ROGERS, Appellant, v. Sara Jo ROGERS, Appellee.
    No. 1350.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 28, 1976.
    Rehearing Denied May 19, 1976.

      Douglass D. Hearne, William M. Knolle, Stayton, Maloney, Black, Hearne & Babb, Austin, for appellant.
    Frank A. Gerig, Houston, for appellee.
   CURTISS BROWN, Chief Justice.

On September 18, 1975 Sara Jo Rogers (the mother or appellee) filed suit in the Court of Domestic Relations of Harris County seeking the modification of a July 6, 1973 judgment of the District Court of Travis County whereby she and William Earle Rogers (the father or appellant) were granted a divorce, she was awarded custody of their son subject only to certain visitation rights of the father, and he was ordered to pay $200 per month for the support of his child until age eighteen. The modifications sought by the mother were that she be appointed managing conservator of the child, and that the father be appointed possessory conservator with reasonable visitation rights and be required to pay $300 per month for the support of his child.

The father filed a “Plea of Privilege and Motion to Transfer” seeking to have the case transferred to Travis County, the county of his residence. The trial court overruled the plea and motion and retained venue in Harris County. It is from that action of the trial court that this attempted appeal was taken by the father. The mother has filed in this court a motion to dismiss the appeal.

Tex. Family Code Ann. § 11.06(f) (1975) provides that in a suit affecting the parent-child relationship “[a]n order transferring or refusing to transfer the proceeding is not appealable.” Appellant attempts to avoid the effect of § 11.06(f) by arguing that the suit was not one affecting the parent-child relationship because the petition filed by appellee did not set out the statutory grounds on which the request for relief was made, as required by § 11.-08(b)(10) (Supp.1975). He points out that § 11.07(a) states that “[a] suit affecting the parent-child relationship shall be commenced by the filing of a petition as provided in this chapter”; from this he reasons that a petition which does not meet the requirements of § 11.08 does not commence a suit affecting the parent-child relationship. We disagree.

A “suit affecting the parent-child relationship” is defined by § 11.01(5) as

“a suit brought under this subtitle in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought.”

The purpose of § 11.07 is merely to establish a procedure by which such suits are to be commenced, and is in no way inconsistent with the definition contained in § 11.01(5). The fact that a petition has a defect that makes it subject to special exception does not change the nature of the suit. A suit is one affecting the parent-child relationship if it attempts, by its main objective, to invoke the provisions of Subtitle A of Title 2 of the Family Code and requests the court to take one of the actions enumerated in § 11.01(5).

Since this was a suit affecting the parent-child relationship, the order refusing to transfer the proceeding was not appealable. See Benckenstein v. Benckenstein, 515 S.W.2d 336 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ dism’d).

We also note that the inclusion in the motion to transfer of language and material normally associated with pleas of privilege was mere surplusage. The venue provisions contained in § 11.04 remove suits affecting the parent-child relationship from the operation of the general venue statute, Tex.Rev.Civ.Stat.Ann. art. 1995 (1964), and the transfer procedures contained in § 11.06 were intended to supplant the plea of privilege rules contained in Rules 86-89 of the Texas Rules of Civil Procedure. See Smith, Texas Family Code Symposium: Title 2. Parent and Child, 5 Tex.Tech.L.Rev. 389, 394, 400 (1974); 2 L. Simpkins, Texas Family Law 357 (Speer’s 5th ed. 1976).

Sara Jo Rogers’s motion to dismiss the appeal is granted and the appeal is dismissed.

      . Unless otherwise noted, all statutory references are to the Texas Family Code.


author: CIRE, Justice.

text:
    Edward L. WHITTENBURG, Appellant, v. CESSNA FINANCE CORPORATION, Appellee.
    No. 1369.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 28, 1976.
    Rehearing Denied May 19, 1976.
    Joel W. Cook, Barry Allan Brown, Schlanger, Cook, Cohn & Mills, Houston, for appellant.
    John A. Cavin, Ross, Banks, May, Cron & Cavin, Houston, for appellee.
   CIRE, Justice.

This is an appeal from a summary judgment for the plaintiff on a promissory note. The note was executed by appellant Edward Whittenburg in favor of Sawyer School of Aviation and in conjunction with a conditional sales contract for the purchase of an airplane. The face value of the note was $196,200, to be paid on March 24, 1973. Sawyer School of Aviation endorsed the note and assigned the sales contract to ap-pellee Cessna Finance Corporation.

Appellee brought suit on the note asking for the $196,200 principal plus interest and attorney’s fees; appellant answered by a plea in abatement and a general denial. Appellee then filed its motion for summary judgment, to which were attached copies of the note and endorsement and of the sales contract, together with the affidavit of ap-pellee’s attorney in support of attorney’s fees. Appellant’s opposition to the summary judgment motion alleged the note might have been paid out of the proceeds of an insurance policy, that appellant was entitled to an offset for breach of warranty, and that appellee was not a holder in due course of the note. Appellant’s opposition to the motion was supported by the affidavit of the appellant in which he stated the airplane had crashed and been totally destroyed, and that he believed the crash had resulted from the defective manufacture of the plane. At the time of the crash appellant had sold the plane to Del Rio Springs, Inc., retaining a security interest in it. The summary judgment evidence also included a copy of the judgment of an Arizona court awarding appellant a $310,000 judgment against Del Rio Springs, Inc., for the purchase price of the airplane, and copies of correspondence in which appellant and his attorneys had admitted the existence and default of the $196,000 obligation to appel-lee. At the time of the sale to Del Rio Springs, Inc. appellant had cancelled an insurance policy protecting the security interest of appellee and taken out a new policy protecting his own security interest. In a later suit against the second insurance company he collected approximately $190,000.

The trial court granted an interlocutory summary judgment for appellee on the note and appellant’s claimed offset, and after a separate hearing on attorney’s fees, entered final judgment for appellee for $208,200 plus $12,000 attorney’s fees.

Appellant contends appellee’s motion for summary judgment was defective in that it did not prove appellee was a holder in due course of the note and did not prove there was no fact issue on appellant’s claim for an offset for breach of warranty.

Appellee’s summary judgment evidence established that appellee was the holder of the note, that the note was in default, and that appellant was the maker of the note. Appellant did not deny the genuineness of his signature or of the endorsement, and did not plead payment. Appellee was therefore entitled to recovery unless appellant established a defense. Tex.Bus. & Comm.Code Ann. § 3.307(a), (b).

The defense alleged by appellee was for an offset for breach of warranty, which is equivalent to a plea of failure of consideration. Wilson v. Taylor, 106 Ga.App. 720, 128 S.E.2d 83 (1962); Stevens-Etter Co. v. Grain Juice Co., 285 S.W. 667, 669 (Tex.Civ.App.-San Antonio 1926, no writ). Offset and failure of consideration are defenses which must be affirmatively pleaded. Tex.R.Civ.P. 94; American National Insurance Co. v. Fox, 184 S.W.2d 937 (Tex.Civ.App.-Fort Worth 1945, writ ref’d w. o. m.). In summary judgment practice, where the non-movant has alleged an affirmative defense, he must offer proof that there is a material fact issue on that affirmative defense. Torres v. Western Casualty & Surety Co., 457 S.W.2d 50, 53 (Tex.Sup.1970). In light of the subsequent sale of the airplane by appellant, his judgment against the purchaser and his recovery from the insurance company on the policy protecting his security interest, there is some doubt as to the validity of his claim for offset, but we need not decide that question. Appellant’s summary judgment evidence on the issue of breach of warranty consisted only of the affidavit of the appellant. The affidavit recites that while the airplane was in possession of appellant, it was repaired and remanufactured by Cessna Aircraft Corporation to correct defects in its pressurizing system. The affidavit further states that appellant sold the plane for $260,000 to Del Rio Springs, Inc.; that three days after the sale and while being operated by Del Rio Springs, Inc. the plane crashed and was destroyed; and that “defendant cannot account for its failure and destruction except by the fact that the pressurizing system thereof was inadequately repaired or remanufactured by Cessna Aircraft Corporation. . . . ” The affidavit does not state it is made on personal knowledge; the allegations concerning the cause of the crash and the condition of the airplane are strictly the speculation and opinion of the appellant, and as such cannot be held sufficient to raise a fact issue on his affirmative defense.

Since appellant did not raise a fact issue on a defense material to appellee’s right as a holder of the note to recover on it, appel-lee was not required to prove that it was a holder in due course. There having been no material fact issue on appellee’s cause of action or any affirmative defense to it, the trial court correctly granted summary judgment. The judgment of the trial court is affirmed.

Affirmed.


author: STERNBERG, Justice.

text:
    Ora CHAPMAN et al., Appellants, v. Chester BRADSHAW, Appellee.
    Supreme Court of Kentucky.
    Jan. 23, 1976.
    Rehearing Denied June 11, 1976.
    Robert L. Bertram, Jamestown, for appellants.
    Leonard E. Wilson, Robert L. Wilson, Jamestown, for appellee.
   STERNBERG, Justice.

Chester Bradshaw brought this action to enjoin the appellants, Ora Chapman, Clem-ma Rector, and Maxine Haveland, from violating building restriction covenants by placing house trailers on their respective lots located in the Forest Hills Subdivision, Jamestown, Kentucky.

It is admitted that the deeds to all of the lots in the Forest Hills Subdivision contain the following restrictions:

“(1) This property is hereby restricted to residences only, which shall include dwelling houses and necessary out buildings, that the owners may desire to construct, with the exception that no outside toilet facilities shall be permitted. With the further provision that any building, whether residence or outbuilding, that is constructed upon this land shall have a solid foundation with outside walls constructed of brick, stone or other mason-ery; or painted wood siding, which would include weatherboard or wood shingles; or painted asbestos shingles; or any aluminum or metal siding.
“(2) No residence shall be constructed upon this land upon a lot of less than 50 foot frontage and shall contain not less than 900 square feet of floor space, excluding basement.”

On March 28, 1964, Bradshaw purchased a lot in the subdivision, and he completed construction of his home on the lot a year later.

During 1966 a person not a party to this litigation moved a house trailer onto a lot in the subdivision, where it remained for approximately one year. No objection to the presence of this trailer was ever made.

In 1969 appellants Chapman and Have-land each brought two trailers onto lots in the subdivision, and in 1970 appellant Rector placed a' trailer in the subdivision. These five trailers are the only ones which are involved in this litigation.

Following a trial before a special judge, the court found that the trailers in question violated the restrictive covenants and enjoined appellants from maintaining them in the subdivision. This appeal is from that judgment.

Appellants, on appeal, question whether the presence of house trailers on lots in the Forest Hills Subdivision violated the restrictive covenants contained in the deeds of the parties to this action. There is no question as to the existence, validity, or enforceability of these restrictions.

House trailers or mobile homes, by definition, are houses on wheels. They do not have solid foundations. They are not “constructed” within the meaning of the restriction, which refers, in ordinary parlance, to a building permanently attached to the realty. Foos v. Engle, Ky., 174 S.W.2d 5 (1943). Clearly, a “house trailer" violates the requirement that “ * * * any building, * * * that is constructed upon this land shall have a solid foundation * * *.”

Appellants rely on two defenses in support of their argument that Bradshaw should be denied relief.

They argue that the appellee was guilty of violating the restrictions, in that he allegedly operated a business on the premises which he occupied. Based on this premise, the appellants conclude that Bradshaw should be denied equitable relief since he comes into court with “unclean hands”. This court does not agree. The record discloses that in 1969 Bradshaw built a concrete block building on the premises, which he used for storage and in which occasionally he refinished furniture. He did not advertise. He refinished only 12 to 15 pieces of furniture during the period prior to this suit. Such slight and inconsequential acts on appellee’s part are not a sufficient basis for denying him relief. Meyer v. Stein, Ky., 145 S.W.2d 105 (1940).

Appellants’ second defense is that under the principles of laches Bradshaw should be estopped to bring the action.

The parties agree that trailers were moved into the subdivision as early as 1966. On January 3, 1970, letters were sent by Bradshaw’s attorney to appellants protesting the presence of their trailers in the subdivision. This action was filed on April 27, 1971.

Thus, the crucial question is whether this delay of four or five years by Bradshaw in filing this action constitutes laches under the circumstances of this case. The facts of a particular case will determine what constitutes laches. Mere delay in bringing suit is not a basis for invoking the doctrine. Starck v. Foley, Ky., 272 S.W. 890 (1925). Certainly, the delay is not fatal where it is prompted by the desire to procure compliance with the covenant by means other than litigation. 12 A.L.R.2d 398.

In Starck v. Foley, supra, the court defined laches as a delay that works a disadvantage to another. In that case the plaintiff had delayed 21 months in bringing his action seeking removal of certain billboards. The court found that the delay did not disadvantage the defendants.

In the present case appellants have not introduced any evidence of disadvantage caused to them by the delay. In fact, less than one year had elapsed from the time the first of appellants’ trailers was brought into the subdivision until its presence was protested by Bradshaw through his attorney. There is no evidence that the appellants would be harmed more by removing the trailers now than by having removed them shortly after they were brought into the subdivision. Thus, the delay by Bradshaw, under the facts of this case, is not a basis for invoking the doctrine of laches.

For the reasons stated, this court affirms the conclusion that appellants have violated the restrictive covenants in their deeds and that Bradshaw is entitled to equitable relief.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    Thelma Mae CASKEY, Individually, et al., Appellants, v. HAMMONDS CONSTRUCTION, INC., et al., Appellees.
    Supreme Court of Kentucky.
    Jan. 23, 1976.
    Rehearing Denied June 11, 1976.

      D. Fredrick Saunders, Brooks, Sullivan & Saunders, Lexington, for appellants.
    Mann & Turner, Salyersville, Harris S. Howard, Prestonsburg, Thomas S. Miller, Jackson, for appellees.
   PER CURIAM.

Thelma Mae Caskey, individually, and as administratrix of the estate of Darrell Gene Caskey, and their children, Judy Lynn Cas-key and Janice Caskey, appeal from a judgment of the Magoffin Circuit Court dismissing their complaint against Hammonds Construction, Inc., Billy C. Hammonds, and Licking Valley Rural Electric Cooperative Corporation, seeking to recover damages arising out of the death of Darrell Gene Caskey.

Licking Valley was the owner of certain electric transmission lines used in its business of the sale and distribution of electric current to patrons of the company. Ham-monds Corporation, Inc., acting by and through its owner, Billy C. Hammonds, contracted with Licking Valley to remove certain de-energized electric lines. Darrel Gene Caskey, while employed by Ham-monds, and while in the process of removing a designated line, came in contact with one that was energized and was immediately electrocuted. Thelma Mae Caskey filed this action against Hammonds, the corporation, and Hammonds, the individual, and Licking Valley seeking to recover damages due by reason of the death of her husband.

Neither Hammonds Construction, Inc., nor Billy C. Hammonds had elected coverage under the Workmen’s Compensation Act, and at the time of the death of Caskey, on November 20,1972, there was no workmen’s compensation coverage from which he could benefit. While it is true that at the time of his death the 1972 General Assembly had created the Uninsured Employers Fund, it did not become operative until January 1, 1973, and, consequently, the estate of Darrell Gene Caskey was not entitled to workmen’s compensation relief on this count.

Thelma Mae Caskey’s complaint alleged numerous acts of negligence committed by Hammonds Construction, Inc., Billy C. Hammonds, and Licking Valley, some of which involved acts allegedly committed by Licking Valley that directly affected the status and well being of Darrell Gene Cas-key.

Hammonds Construction, Inc., and Billy Hammonds filed a motion to dismiss the complaint upon the ground that it failed to state a cause of action because the remedy available to Thelma Mae Caskey was exclusively within the purview of the Workmen’s Compensation Act.

Licking Valley filed a separate motion to dismiss upon the ground that the complaint did not state a claim upon which relief could be granted. Licking Valley relied upon the opinion of this court in King v. Shelby Rural Electric Cooperative Corporation, Ky., 502 S.W.2d 659 (1974).

Subsequent to the filing of a memorandum of authorities and the hearing of arguments, the trial court sustained both motions and dismissed the complaint.

The motion of Hammonds Construction, Inc., and Billy C. Hammonds should not have been sustained. It is admitted that Hammonds had not elected to operate under the Workmen’s Compensation Act and that at the time of his death Darrell Gene Caskey was not covered by the Workmen’s Compensation Act. Under the statute providing workmen’s compensation coverage, the proper forum in which Thelma Mae Caskey, his widow, and their children should have filed their claim was the circuit court. Consequently, it was error on the part of the court to dismiss the action without a trial.

Licking Valley’s reliance upon King requires consideration of our opinion in that case. Therein, this court stated “that an employer’s responsibility for the negligence of his independent contractor engaged in the performance of work known to be inherently dangerous and the so-called non-delegable duties arising out of such work do not extend to the employees of the independent contractor.” The opinion does not hold that an employee of an independent contractor may not recover from the owner in those instances where the negligence of the owner causes the injury or death of the employee of the independent contractor.

The complaint alleges that the death of Caskey was caused by the negligence of Licking Valley. Appellants may be able to prove some negligence of Licking Valley apart from a violation of the so-called non-delegable duties which inhere in inherently dangerous situations. For that reason the complaint against Licking Valley should not have been dismissed upon motion.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Robert B. HILLEBRAND and Douglas Lee Powers, Appellees.
    Supreme Court of Kentucky.
    Jan. 23, 1976.
    Rehearing Denied June 11, 1976.

      Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, Edwin A. Schroering, Jr., Commonwealth’s Atty., Frank Coryell, Asst. Commonwealth’s Atty., Louisville, for appellant.
    Frank E. Haddad, Jr., Laurence E. Higgins, Louisville, for appellees.
   PER CURIAM.

Robert B. Hillebrand, Acting Director of the Department of Building and Housing Inspection of the City of Louisville, and Douglas Lee Powers, a friend of Hille-brand’s, were tried jointly under indictments charging Hillebrand with accepting a bribe from one Ed Sutherland, and charging Powers with being an accessory before the fact to that offense. The jury found the defendants not guilty and a judgment of acquittal was entered. The Commonwealth has appealed, asking for a certification of the law on various questions.

Some time prior to the trial here in question, Hillebrand and Powers had been tried under indictments charging Hillebrand with accepting a bribe from one H. M. Dunn, Jr., and charging Powers with being an accessory before the fact to that offense. On that trial the circuit court directed a verdict of acquittal. The Commonwealth appealed for a certification of the law in that case also, and the certification was made in Commonwealth v. Hillebrand, Ky. (1974), 508 S.W.2d 566. One of the certifications there was that the trial court had erred in refusing to admit evidence as to Hille-brand’s and Powers’ dealings with Sutherland. This court was of the opinion that the evidence was admissible as tending to show a pattern of conduct that was relevant to the issue of intent.

On the trial in the instant case, the Commonwealth sought to introduce evidence of Hillebrand’s and Powers’ dealings with Dunn. The circuit court would not permit the evidence to be introduced, ruling that the evidence should be excluded under the principle of collateral estoppel under the double-jeopardy clause. The correctness of that ruling is the primary question on which the Commonwealth seeks a certification.

At one time the law was well settled that evidence, otherwise competent, of other conduct of a criminal nature was not rendered inadmissible by the fact that the accused had been acquitted of a criminal charge based on that conduct. See 1 Wharton’s Criminal Evidence, Thirteenth Edition 624, Sec. 262; Annotation, 86 A.L.R.2d 1132. But the decision of the Supreme Court of the United States in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), on the subject of collateral es-toppel as related to double jeopardy, appears in some respects to have qualified the rule.

As we understand the holding in Ashe v. Swenson, it is that if an issue of fact has been determined against the prosecution in the trial of an offense, the prosecution cannot again litigate that issue of fact upon a later trial of the same defendant for another offense. To ascertain whether the issue was in fact determined on the previous trial, the court on the subsequent trial is required to “examine the record of [a] the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” (our emphasis) The specific holding was that the prosecution, on a trial of a defendant on a charge of participating with others in the robbery of a player in a poker game, was precluded from producing evidence to show that the defendant was one of the robbers, because on a previous trial of the defendant on a charge of robbery of one of the other poker players the defendant had been acquitted. The court said: “The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not.”

Applying the principle of Ashe v. Swenson to the instant case, we find that the only issue of fact that must have been decided against the Commonwealth on the previous trial was whether Hillebrand ever physically took possession of the money paid by Dunn to Powers. It is clear from the record that the decision of the trial court to direct a verdict of acquittal was based solely (and of course erroneously) on the fact that the evidence did not establish that the money ever came into Hillebrand’s personal possession. Under Ashe v. Swenson, that is the only issue of fact that the Commonwealth was precluded from litigating on the subsequent trial; the Commonwealth was not precluded from introducing relevant evidence as to the dealings of Hil-lebrand and Powers with Sutherland, excepting only evidence to show that the money was received personally by Hillebrand.

Hillebrand’s counsel cites Wingate v. Wainwright, 5 Cir., 464 F.2d 209 (1972) as authority for the proposition that where an accused has been acquitted of a charge of crime, no evidence at all relating to that crime can be admitted on a subsequent trial for another offense. The case does seem to stand for that proposition, but we find the reasoning of the ease so faulty as to render the case wholly unacceptable to us as authority. It misinterprets and misapplies Ashe v. Swenson; it evinces a complete misconception of the laws of evidence as to admission of evidence of other conduct of a criminal nature; and it erroneously assumes that motive, a common scheme or plan, guilty knowledge, etc., are elements of a crime.

In Wingate the opinion says that the prosecution undertook to introduce evidence that the defendant, on trial on a robbery charge, on a previous occasion “had robbed” Joseph Hillman and on another occasion “had robbed” James Angel. It appears that the prosecution was trying to prove only the ultimate fact of prior robberies, as distinguished from showing the conduct of the defendant on those prior occasions. The court in Wingate held that proof of the prior robberies was precluded, under principles of res judicata or collateral estoppel, because the defendant had been acquitted on charges of committing those robberies. The court seemed to be of the opinion that the evidence would have been admissible had it not been for the acquittals. We think that was the court’s first error.

As we understand the law, evidence of prior conduct of a criminal nature is admissible, in certain circumstances, to show motive, guilty knowledge, a common plan or scheme, etc. But evidence simply that a person has committed another similar crime (related in those terms without reference to the actions of the defendant) is not admissible, any more than evidence that he has been convicted of another crime (except where allowed for impeachment purposes). Evidence of prior conduct of a criminal nature is not admissible because it shows that another crime was committed, but despite the fact that it may show that another crime was committed. See Henderson v. Commonwealth, Ky., 507 S.W.2d 454.

Apparently, the initial error of the court in Wingate led it into the second, which was its interpretation and application of Ashe v. Swenson as barring any evidence at all with reference to prior conduct from which a criminal charge arose on which the defendant was acquitted. Ashe v. Swenson plainly says that the only evidence that is precluded is evidence of issues of fact which necessarily were determined against the prosecution on the prior trial.

The third error of the court in Wingate was in its statement that the evidence of the former robberies was offered to prove “some element” of the instant offense. Of course, it was not for that purpose; it was to convince the jury that the defendant had committed the acts, otherwise shown in evidence, that constituted the elements of the offense.

It appears that the circuit court in the case here on appeal was led into the same errors committed by the court in Wingate.

It is our conclusion that the acquittal of Hillebrand and Powers in the Dunn case did not have the effect of precluding the admission of any relevant evidence, in the Sutherland case, as to Hillebrand’s and Powers’ dealings with Dunn, excepting only evidence that Hillebrand personally received the money.

The Commonwealth asks that we certify the law on certain other questions but we do not consider them of sufficient importance to warrant certification.

The law is certified as hereinbefore stated.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. William FRIEDLANDER, Respondent.
    Supreme Court of Kentucky.
    Jan. 23, 1976.
    Rehearing Denied June 11, 1976.

      John M. Famularo, Lexington, Leslie G. Whitmer, Counsel, Kentucky Bar Ass’n, Frankfort, for complainant.
    Stuart E. Lampe, Timothy R. Futrell, Wyatt, Grafton & Sloss, Louisville, for respondent.
   PER CURIAM.

This is a disciplinary proceeding in which the board of governors of the Kentucky Bar Association found respondent guilty of unprofessional conduct and recommended that he be permanently disbarred from the practice of law.

The charge filed against respondent by the Kentucky Bar Association stated that respondent issued two checks in the total amount of $118,609.39 which were returned by the bank to the payees because of insufficient funds.

A trial committee appointed in accordance with RCA 3.230 heard the testimony of witnesses. After finding respondent guilty of the charge, the committee recommended that he be suspended from the practice of law for a period of one year. The board of governors at a subsequent meeting considered the record pursuant to RCA 3.370, found the respondent guilty of the charge and recommended that he be permanently disbarred from the practice of law. RCA 3.380.

Respondent and his law partners organized Kentucky Insured Title Corporation in 1967. About two years after the organization of the company, respondent’s law firm became the sole owners of the corporation, and the members of the firm became officers of the title company. The law firm practice was limited exclusively to real estate closings for the title company. The only meetings of the officers of the title company were the regular weekly partnership meetings of the law firm.

In July 1973, a check to the title company in the sum of $135,076.49 was received by respondent from Kentucky Mortgage Company. This check was placed in the Kentucky Insured Title Corporation’s escrow account. These funds were received by respondent as attorney for Kentucky Insured Title Corporation during the course of his representation of the sponsor of an apartment structure in Paducah, Kentucky. Two checks were drawn on the title company’s escrow account: one in the sum of $109,851.69, payable jointly to the contractor of the apartment structure in Paducah and the surety guaranteeing performance of the contract; the other in the sum of $8,757.70, payable to Kentucky Mortgage Company Mortgage Investors, in payment of interest due on a mortgage on the apartment structure.

Respondent travelled to Paducah, made an examination of the title for liens and delivered the check signed by him to the contractor. He then called and directed his office to issue the other check, which was signed by one of his partners. Respondent then notified Kentucky Mortgage Company that he had disbursed the funds. Both checks were returned because of “insufficient funds.” Respondent directed that the checks be redeposited. He failed in an attempt to secure a bank loan to cover the checks, and the checks were again returned for “insufficient funds.”

Respondent asserts that he had every reason to believe the checks would be honored by the bank and that he would not have authorized issuance of the checks had he thought otherwise. Respondent’s testimony with regard to the events leading up to the situation resulting in this disciplinary action does not bear out his assertion. We are disregarding the testimony objected to by respondent as being outside the matter contained in the charge by the Kentucky Bar Association and are considering only respondent’s testimony.

After the date of organization, the business of Kentucky Insured Title Corporation increased rapidly. Large sums of money required for the many real estate closings were flowing through the company’s escrow account. In 1972, the title for a project in Lexington, Kentucky, was certified by respondent’s law firm; and it was later determined that there was an outstanding mortgage on the property that had been overlooked in the title search. Respondent negotiated a settlement with the mortgage holder for the sum of $42,000. According to respondent, the firm did not make a claim on their errors and omissions policy for fear that the insurance carrier would cancel the policy. Instead, the $42,000 was taken from the escrow account of Kentucky Insured Title Corporation and paid over to the mortgage holder. After that, in January 1973, there occurred a freeze in further construction funds by HUD, the federal agency which supplied or guaranteed funds for a major portion of the business of Kentucky Insured Title Corporation and respondent’s law firm. After this, in order to bolster the declining volume of business, respondent’s law firm acquired by purchase the National Mortgage Company, which specialized in loans for single-family dwellings. This venture was not successful and entailed a further expenditure of $40,000, which was taken out of the escrow account of Kentucky Insured Title Corporation. At the time respondent issued the two checks, subject of the charge, he states that he knew the escrow account was in the “red.” He states that the accounting procedures were so confused that none of the partners in the firm knew the bank balance at any given time. He states that he and other members of his law firm wrote checks on the escrow account in anticipation of deposits to be made. This practice is referred to in the evidence as “playing the float.”

Respondent testified that a “float” was involved, and “I feel that it got away from me, and that it probably got away from everybody else in the firm.” On July 31st, the bank balance of Kentucky Insured Title Corporation was minus $48,000, and the company was out of business.

We are presented here with a factual situation analogous to that presented in Kentucky Bar Association v. Tucker, Ky., 535 S.W.2d 97 (rendered May 9, 1975), and Kentucky Bar Association v. Collis, Ky., 535 S.W.2d 95, (rendered May 9, 1975), which is misappropriation of trust monies by a member of the bar. No inference is necessary here. Respondent admits that he participated in the use of trust funds from the escrow account of Kentucky Insured Title Corporation for the benefit of his law firm.

We are of the opinion that such conduct is so dishonest and reprehensible as to make him unfit to remain a member of the bar. For the reasons set out in Collis and Tucker, we hold that respondent should be permanently disbarred from the practice of law.

Respondent argues that the disciplinary rules of this court deny due process of law and equal protection of the law. We have difficulty in following respondent’s argument in this respect.

First, respondent argues that RCA 3.370 provides that any member of the board of governors who “has been challenged on grounds sufficient to disqualify a circuit judge, shall be disqualified . . but there is no way to challenge a member of the board of governors for the reason that respondent does not know when his case is to be considered by the board of governors and does not know which members of the board might participate. The simple answer to respondent’s argument is contained in RCA 3.360, which provides that the trial committee shall file its finding and recommendations with the board and that the report shall be advisory. Obviously the proceedings are never concluded with the trial committee, so the respondent can use his own judgment in selecting a time prior to the end of the proceedings before the trial committee to make such challenges as he may desire to any members of the board. The membership of the board is known to respondent; and, further, it is not suggested that respondent desired to make a challenge in any event.

Next respondent argues that because of the extreme difference between the recommendation of the trial committee and the recommendation of the board he was entitled to answers to interrogatories addressed to the board of governors: “Did all the members of the Board receive a copy of the recommendations of the Trial Committee? Did all the members of the Board receive copies of the briefs filed in this case and have time to read them? RCA 3.370 provides that ‘the Board shall promptly consider and act upon the entire record.’ Did the members of the Board have time to read the entire record so that they could properly act upon it?”

The thrust of the interrogatories according to respondent was to ascertain whether any real study was given to the facts involved in this case by the board of governors.

That a reviewing body shall be subjected to such a procedure is a novel concept of due process, and the logical extension of respondent’s argument is such that we conclude it is not proper to propound such interrogatories. Nor do we believe that due process or equal protection of the law is involved at all in this respect.

Suffice to say, it is obvious to us that the board did understand the record. We have read it, and our understanding and the interpretation we place on the facts lead to our conclusion that respondent should be permanently disbarred from the practice of law.

Accordingly it is ordered that the respondent be and he is hereby permanently disbarred from the practice of law in this Commonwealth, and he is required to pay the cost of this proceeding.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, STEPHENSON and STERNBERG, JJ., sitting; all concur.

PALMORE, J., not sitting.


author: STEPHENSON, Justice. CLAYTON, Justice

text:
    COMMONWEALTH of Kentucky, Appellant, v. Lacey T. SMITH, Appellee.
    Supreme Court of Kentucky.
    March 26, 1976.

      Ed W. Hancock, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, Edwin A. Schroering, Jr., Commonwealth’s Atty., 39th Judicial Dist., Louisville, for appellant.
    Frank E. Haddad, Louisville, James F. Neal, Nashville, Tenn., for appellee.
   STEPHENSON, Justice.

An indictment charging Lacey T. Smith with a violation of KRS 432.350 was dismissed by the trial court. The Commonwealth appeals. We affirm.

The indictment reads:

“That on or about the 20th day of December 1973, in Jefferson County, Kentucky, the above named defendant did unlawfully cause money, the sum of $5,000.00, to be given to said defendant by Schwartz and Speckter Insurance Agency for delivery to an organization known as the Sloane for Mayor General Election Committee, with the intent to influence Harvey Sloane, Mayor of the City of Louisville, in making his decision in awarding insurance contracts for the City of Louisville so as to obtain insurance contracts for the Schwartz and Speckter Insurance Agency from the City of Louisville.”

KRS 432.350, Giving and taking bribes, provides:

“(1) Any person who promises, offers, gives or causes or procures to be promised, offered or given and money or other thing of value, or makes or tenders any contract, obligation, gratuity or security for the payment of money or for the delivery or conveyance of anything of value, to any member of the General Assembly, or to any judicial, executive or ministerial officer of this state, or to any county or city executive, ministerial, judicial or legislative officer, including members of boards of education or subdistrict trustees, after he has been elected, and before or after he has been qualified and assumed office or taken his seat, with intent to influence his vote or decision on any question, matter, cause or proceeding pending in the General Assembly or before such officer, or pending before any committee of the General Assembly, shall be fined not less than fifty dollars nor more than one thousand dollars, or confined in the penitentiary for not less than one nor more than five years, or both.
“(2) Any member of the General Assembly or any other executive, judicial, ministerial or legislative officer of this state or of any county or city, including members of boards of education and sub-district trustees, who takes or agrees to take any bribe to do or omit to do any act in his official capacity shall be fined not less than fifty dollars nor more than one thousand dollars, or confined in the penitentiary for not less than one nor more than five years, and shall forfeit his office and be disqualified from the right of suffrage for ten years.” (Emphasis ours)

The trial court dismissed the indictment on the ground that it failed to allege such “matter, cause or proceeding” was pending at the time before the officer whose decision was meant to be influenced by the payment of the bribe and thus did not charge an offense.

The Commonwealth argues that “pending” as used in KRS 432.350(1) means the period of time in which the “question, matter, cause or proceeding,” which was the subject matter of the bribe, remains unperformed or was reasonably foreseeable in the future at the time of payment of the bribe.

In its brief, the Commonwealth tells us it intended to prove at the trial that in December 1973 the insurance agency, desirous of obtaining contracts of insurance with the city of Louisville contacted Smith, the campaign manager for the Mayor’s successful November 1973 election campaign, and Smith indicated if the insurance agency would contribute $5,000 to the Sloane for Mayor Election Committee, for the purpose of retiring campaign debts, he, Smith, would influence the Mayor to award contracts of insurance to the insurance agency.

Further, on December 20,1973, the insurance agency gave to Smith a check drawn on the account of the insurance agency in the sum of $5,000, payable to the Harvey Sloane for Mayor Campaign, and Smith deposited the check in the bank account for the Sloane for Mayor General Election Committee, and the Mayor was influenced thereafter to award the insurance agency, on July 26, 1974, the position of agent of record for the city of Louisville, which made the insurance agency privy to fire insurance rate makeup schedules for property owned by the city of Louisville and thereby placed the insurance agency in position to advise executive officers of the city of Louisville as to various matters pertaining to insurance coverage for the city.

Further that prior to the payment of the $5,000, the insurance agency did not have any contract of insurance with the city; and on August 7, 1974, the insurance agency was awarded a contract of insurance for property owned by the city with a coverage of $5,911,520.80 as a result of the payment of the $5,000 — not as a consequence of competitive bid, but in the discretion of the Mayor.

We are of the opinion that the indictment does not charge a violation of KRS 432.-350(1); nor would the proposed proof recited by the Commonwealth be sufficient to sustain a conviction on the charge.

The pertinent portions of KRS 432.350(1) relative to giving a bribe (applicable to this charge) are “any person who procures to be . . . given any money . for the delivery ... [to a] city executive . . . with intent to influence his . . . decision on any question, matter, cause or proceeding pending before such officer . . . .”

The essential element of the offense is that the officer, or his designee, must be promised, offered, or given the money or thing of value. In that event, the giver of the bribe is subject to the penalties of KRS 432.350(1).

Here the indictment alleges that Smith procured the money to be given to the election committee with intent to influence the Mayor in giving insurance contracts. This indictment is deficient in that it does not allege that the Mayor received the money or that the money was given to the election committee with the Mayor’s knowledge of and consent to the illegal purpose denounced by the statute.

Should the Commonwealth be prepared to supply the deficiency in the indictment, then the present indictment may be amended.

We view the argument of the Commonwealth that “pending” as used in KRS 432.350(1) means the period of time in which the “question, matter, cause or proceeding” remains unperformed as too broad. To adopt this construction would put an unlimited period on part (1) and in the same category as part (2), which refers to taking a bribe and contains no limitation, being the period of time that the individual occupies the office.

A majority of the court is of the opinion that the construction placed on “pending” by the trial court is too narrow. While the majority does not subscribe to the argument that “matters pending” means the period of time the matter was reasonably foreseeable in the future, it views the period from the Mayor’s assuming office in December 1973 to the awarding of the insurance contracts in August 1974 as so close in time to constitute “pending” within the meaning of the statute.

The judgment is modified to the extent that the Commonwealth shall be given the opportunity to supply the deficiency in the indictment within 30 days of the issuance of the mandate herein. As so modified, the judgment is affirmed.

REED, C. J., and JONES, LUKOWSKY, PALMORE, STERNBERG, and STEPHENSON, JJ., concur.

CLAYTON, J., dissents.

CLAYTON, Justice

(dissenting).

I am not persuaded by the arguments forwarded in the majority opinion that the indictment in this case was deficient. In setting out the requisites of an indictment or information, RCr 6.10(2) states:

“The indictment or information shall contain, and shall be sufficient if it contains, a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged. It need not contain any other matter not necessary to such statement, nor need it negative any exception, excuse or proviso contained in any statute creating or defining the offense charged.”

As I read RCr 6.10 the basic purpose to be served by an indictment in Kentucky is to give the defendant notice of the charge(s) against him. The indictment in this case, as quoted in the majority opinion, clearly informed Smith of the nature and extent of the statutory violation with which he was charged.

In Ward v. Commonwealth, Ky., 444 S.W.2d 896 (1969), the appellant attacked the sufficiency of an indictment for forgery under which he was convicted. It was alleged in Ward that the indictment was deficient in that it failed to allege “intent to defraud” or that appellant “proceeded without authority.” This court said at page 897:

“The indictment informed Ward (a) of the offense with which he was charged, (b) of the act of which complaint was being made, and (c) of the claim of forgery, and (d) the caption contained the number of the statute — -KRS 484.130. Ward was adequately apprised of the charge against him.” (Emphasis added)

Certainly it is not beyond the scope of legal reasoning to say, as stated in the above-quoted paragraph, that Smith was informed (a) of the offense with which he was charged, (b) of the act of which complaint was being made, (c) of the claim of bribery, and (d) the caption contained the number of the statute — KRS 432.350.

I would therefore reverse the Jefferson Circuit Court and direct that the indictment be reinstated.

      . Repealed 1974. Reenacted in KRS 521.020, which imposes the same standards on givers as on takers of bribes.

      . The writer of the opinion does not agree with the interpretation of “pending” adopted by the majority of the court. I would give “pending” its ordinary and customary meaning, something that has commenced but is not completed, during, undetermined, before conclusion. The meaning given “pending” by the majority places KRS 432.350(1) in almost the same category as KRS 432.350(2), which contains no space of time. It is obvious to me that the General Assembly intended to deal with the offense of taking a bribe more strictly by providing penalties for “taking” in exchange for any act in his official capacity, i. e., any time during the term of office. On the other hand, part (1) is limited to “giving” to influence any question, matter, or act “pending” before such officer. To enlarge “pending” beyond its usual and customary meaning is to thwart the clear intent of the General Assembly to make a distinction between the giving and the taking of bribes.