author: HALL, Justice.

text:
    MID-SOUTH ELECTRIC COOPERATIVE ASSOCIATION et al., Appellants, v. John F. COLE et ux., Appellees.
    No. 5856.
    Court of Civil Appeals of Texas, Waco.
    Feb. 23, 1978.

      R. Coke Mills, Segrest, Mills, Cameron & Riley, Waco, for appellants.
    Lloyd C. Martin, Smither, Martin & Haggard, Huntsville, for appellees.
   HALL, Justice.

John F. Cole and wife brought this suit in Walker County against Mid-South Electric Cooperative Association and its general manager, Curtis F. Maynard, in two counts. In the first count plaintiffs alleged they have been receiving electrical energy for their home from Mid-South in excess of five years; that Gulf States Utilities Company also provides electrical service in the same area of plaintiffs’ home to others; that plaintiffs learned that Mid-South’s rate is higher than the rate charged by Gulf States; that Gulf States refused to serve plaintiffs unless they were released as a customer by Mid-South; that Mid-South and Maynard, “acting jointly and in concert with each other, arbitrarily, capriciously, oppressively, and monopolistically” refused to release plaintiffs; that they have thereby suffered particularized actual damages; and that they should also be awarded exemplary damages. The second count in plaintiffs’ petition was pleaded as a class action on behalf of plaintiffs and all others receiving electrical energy from Mid-South. It was alleged that although Mid-South was a non-profit corporation created under the provisions of Article 1528b, Vernon’s Tex. Civ.St., enjoying certain preferential treatment and financial advantages at public expense, Mid-South was unjustifiably charging rates for electrical service “substantially in excess” of rates charged by public utilities companies serving the area; that “prior to the establishment of the Public Utility Commission of Texas there was no regulatory agency within the State of Texas, and, the members of this class have had no adequate remedy at law and [therefore seek an equitable accounting] of all funds had and received by Mid-South prior to the date upon which the Public Utility Commission would be deemed to have acquired exclusive jurisdiction over this matter”; that the class members are particularly entitled to an accounting of all expenditures in the nature of “miscellaneous” which may have been expended for “non-essential advertising, public relations, and political purposes”; and that if the accounting shows a misuse or misapplication of Mid-South income, then such amount should be recovered from Maynard individually.

Mid-South and Maynard filed pleas of privilege to have the cause transferred to Grimes County, the county of their residences. Mid-South’s plea was controverted by plaintiffs under the provisions of subdivision 23 of the venue statute (Article 1995, Vernon’s Ann.Tex.Civ.St.), and Maynard’s plea was controverted under the provisions of subdivision 29a of the statute.

Subject to their pleas of privilege, defendants also sought dismissal of plaintiffs’ suit on the ground that the court was without jurisdiction. In support of this plea, defendants asserted in effect that plaintiffs’ suit was concerned only with electrical rates and electrical services and that under certain provisions of the Public Utility Regulatory Act of Texas, Article 1446c et seq., Vernon’s Ann.Tex.Civ.St., exclusive original jurisdiction to determine plaintiffs’ complaints was vested in the Public Utility Commission of the State of Texas.

After a hearing without a jury defendants’ plea to the jurisdiction and the pleas of privilege were overruled. Defendants appeal.

The Public Utility Regulatory Act, Article 1446c, Vernon’s Ann.Tex.Civ.St. became effective September 1, 1976. The stated purpose for this enactment set forth in § 2 was “to protect the public interest inherent in the rates and services of public utilities . [which] are by definition monopolies in the areas they serve,” . . . and “to assure rates, operations, and services which are just and reasonable to the consumers and to the utilities.” Comprehensive measures were then set forth in the Act for the future regulation of operations, rates and services of all public utilities, including electric cooperative corporations like Mid-South, and a commission denominated “Public Utility Commission of Texas” was created to effect compliance with those regulatory measures.

It is provided in § 17(e) of the Act that the Commission shall have exclusive original jurisdiction over electric rates, operations and services not within the incorporated limits of a municipality. The record before us shows without dispute that plaintiffs’ home (where they are serviced by Mid-South) is not within the limits of any municipality. The asserted “refusal of release” by Mid-South upon which plaintiffs ground this action occurred in January or February, 1976. This suit was filed on February 25, 1977. Defendants argue that because plaintiffs’ suit is a controversy over rates and services provided by Mid-South and Gulf States outside the limits of any city, and because the Public Utility Regulatory Act became effective on September 1, 1976, exclusive original jurisdiction of this suit was and is vested in the Public Utility Commission under § 17(e) of the Act, and the court erred in overruling its plea to the jurisdiction. This contention is overruled. It was expressly set forth in § 87(b) of the Act that the Commission “shall assume jurisdiction over rates and service of public utilities on September 1, 1976.” In the light of this statute we believe defendants could have complied with plaintiffs’ request prior to September 1, 1976, without the Commission’s approval if they had chosen to do so. Doubtless, defendants cannot presently do so without the Commission’s approval, but plaintiffs do not seek the release, now. They pray only for any damages resulting from defendants’ failure to give the release when defendants could have done so. Plaintiffs’ suit for damages is not based upon contentions that Mid-South’s rate was unjust or illegal. They simply assert that they found a supplier with a lower rate; that they needed a release from Mid-South before they could, in their words, “walk across the street” and buy for less; and that defendants arbitrarily refused them that release. In the class action it is charged that Mid-South’s rate was unjust, but an accounting on this question is sought only to the time that the Commission assumed jurisdiction over the rate. These actions and the particular relief sought in each do not raise questions within the exclusive original jurisdiction of the Public Utility Commission. They were properly filed originally in the courts. The order overruling the plea to the jurisdiction is affirmed.

As we have said, subdivisions 23 and 29a of Article 1995 are invoked against Mid-South and Maynard respectively by plaintiffs to maintain venue in the county of suit. In its pertinent parts, subdivision 23 provides that suits against a private corporation may be brought in the county “in which the cause of action or part thereof arose.” Subdivision 29a provides that if a suit with two or more defendants may be maintained under the provisions of the venue statute in the county where filed against any one of the defendants, then it may also be maintained there against any and all necessary parties thereto.

To maintain venue in Walker County under subdivision 23, plaintiffs were required to prove all the facts necessary to show a cause of action. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, 67 (1941). No evidence was introduced on the trial in support of plaintiffs’ pleaded class action for an accounting.

Plaintiffs’ action for damages set forth in the first count of their petition was based upon the asserted arbitrary refusal of defendants to execute a “release” so plaintiffs could seek electrical service from Gulf States. To establish a cause of action under this count plaintiffs were required to prove “at least a right and a breach by the defendant^] of a corresponding duty.” Employers Casualty Company v. Clark, 491 S.W.2d 661, 662 (Tex.Sup.1973). We agree with defendants that plaintiffs failed in this burden. The evidence relating to those venue facts shows only the following: Mid-South and Gulf States had an unwritten agreement that “the one that was serving particular people would continue serving them.” Plaintiffs were served by Mid-South. Gulf States also provided electric service in the area where plaintiffs lived. By comparing bills they received from Mid-South with bills friends received from Gulf States, plaintiffs determined that their bills were about one-third higher than their friends’ bills. Plaintiffs requested service from Gulf States and were told they would need a release from Mid-South. They contacted Maynard and asked him to write a letter to Gulf States releasing them from service by Mid-South. He refused. Gulf States has never requested the release from Mid-South.

The service agreement between plaintiffs and Mid-South is not a part of the proof. Insofar as the record shows, plaintiffs were free to terminate the contract at will.

These facts do not establish a contractual duty or other legal duty owed to plaintiffs and breached by defendants when Maynard refused to give plaintiffs the requested letter of release.

The order overruling defendants’ pleas of privilege is reversed. It appears from the whole record that to the extent possible the issues were fully developed by the parties on the trial. Accordingly, we render judgment transferring this cause to the District Court of Grimes County. See Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458, 459 (1948).


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    HALLMARK PERSONNEL OF TEXAS, INC., Appellant, v. Robert FRANKS, dba Robert Franks & Associates, Appellee.
    No. 17050.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 23, 1978.

      Richie, Greenberg & Brackman, David D. Peden, Jr., Houston, for appellant.
    Roger H. Broach, The Woodlands, for ap-pellee.
   EVANS, Justice.

This is an appeal from the trial court’s order denying the plaintiff’s application for temporary injunction.

Hallmark Personnel of Texas, Inc., an employment agency, brought this action against Robert Franks, dba Robert Franks & Associates, to enforce a contractual covenant not to compete and to restrain misappropriation of trade secrets. At the conclusion of Hallmark’s case, the trial court granted Franks’ motion to deny the application for temporary injunction.

The employment contract between Hallmark and Franks dated February 25, 1975, forbids Franks from competing with Hallmark in the employment agency business for a period of six months following the termination of his employment. Franks terminated his employment in May, 1977, and in June, 1977, he commenced his own business. Thus, the six month period provided by the contract expired during the pendency of this appeal.

The existence of an actual controversy is essential to the exercise of appellate jurisdiction. If prior to the determination of the appeal the controversy is terminated, the appeal becomes moot. In re Ivey, 534 S.W.2d 163 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.). Thus Hallmark’s points of error dealing with this aspect of the appeal need not be considered. Since there are other issues in the appeal which have not become moot, the appeal will not be dismissed. Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 953 (1960).

It is Hallmark’s position with respect to the trade secrets issues of the appeal that the uncontroverted evidence shows that Franks breached his contractual and common law duties to preserve Hallmark’s confidential disclosures of customer and business information.

The contract of employment provides that all records, material and information obtained by the employee in the course of the employment are confidential and that the employee will not at any time after the termination of his employment use the contents of such records or the information so acquired. Hallmark contends that it is entitled to common law protection of its confidential disclosures of business information consisting of “customer lists, training techniques and an analysis technique known as ‘features, benefits and needs’.”

Franks testified that upon termination of his employment, he took no applicant lists nor employer contract cards, and that the only record which he took with him was one which he had prepared for his personal use in preparation for a possible Certified Employment Consultant examination. This record, he testified, contained information on the types of placement he had made with Hallmark, where he had placed the applicants, the amount of the fee involved, and by whom it was paid. This record does not contain the names of persons to contact at the particular companies where placements were made. Although Franks testified that he was presently contacting employers for whom he had made placements while at Hallmark, there was no evidence that these customers had been the exclusive customers of Hallmark.

Mr. Leonard Buxkemper, the president of Hallmark, testified that both employees and applicants may be listed with a number of employment agencies at a given time. He testified that he had developed an analysis technique known as “features, benefits and needs”, which was based upon his years of experience in the employment counseling business. He testified that he had personally taught this technique to Franks, that he had disclosed the information in confidence, and that he had not reduced to writing the information concerning such technique. He testified that he had “expounded” on the theory of his technique at national committee meetings, but had not disclosed “the finer details on it”. It was the “actual details” which made the information valuable to a competitor. When asked what was secret about his technique, he testified that the secret was learning how to interpret and apply the information contained on the applicant’s card.

A trade secret may consist of any formula, pattern, device or combination of information used in one’s business which gives one an opportunity to obtain an advantage over competitors who do not know or use it. Brown v. Fowler, 316 S.W.2d 111 (Tex.Civ.App.—Fort Worth 1958, writ ref’d n. r. e.). Where one breaches a confidential relationship in order to unfairly use the trade secret of his employer, injunctive relief is appropriate to prevent the disclosure of confidential information which the employer maintained as a trade secret. Thermotics, Inc. v. Bat-Jac Tool Co., 541 S.W.2d 255 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958). However, in order to be entitled to such protection, the employer must show that the information was, in fact, a trade secret. Thermotics, Inc. v. Bat-Jac Tool Co., supra.

The testimony of Hallmark’s president shows only that the “finer details” of the applicant’s analysis technique were considered secret and that the general principles of the technique had been made known to the industry in general. There was no evidence indicating that any information was considered secret other than the “finer details” of a method for interpreting and evaluating the applicant’s card. The trial court could have concluded from the evidence that this analysis technique was a subjective skill which could be developed by any experienced employment counselor having knowledge of the general principles of the concept. Indeed, Mr. Buxkemper’s testimony indicated that a person who had heard his national speech might be able to develop and implement the principles of his technique as effectively as he had.

Matters of general knowledge in an industry cannot be appropriated by one as a trade secret. Wissman v. Boucher, 150 Tex. 326, 240 S.W.2d 278 (1951). The efficiency and skills which an employee develops through his work belong to him and not to his former employer, and the employee is not obligated to forego the exercise of his inventive powers even if his expertise was gained in the performance of his contractual duties. Welex Jet Services, Inc. v. Owen, 325 S.W.2d 856 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n. r. e.). The evidence in this case does not compel the conclusion that Franks gained knowledge or information during the course of his employment which should be protected as a trade secret.

Neither does the evidence establish what harm, if any, Hallmark would sustain by reason of Franks’ use of the “features, benefits and needs” technology in his own employment agency. Although Mr. Bux-kemper concluded that Hallmark would be injured by Franks’ use of such technique, he admitted that he had made no investigation to determine whether Hallmark’s business had, in fact, been harmed. Nor does the evidence indicate whether Franks had actually disclosed or made use of the “features, benefits and needs” technique in his own business. A writ of injunction should not issue on a mere surmise of injury. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961).

A judgment granting or denying a temporary injunction will not be reversed unless the appellate court is convinced that the trial court’s ruling constitutes a clear abuse of discretion. Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.1968). On the basis of the record before this court, it cannot be said that the trial court abused its discretion in denying Hallmark’s application for a temporary injunction.

The trial court’s order denying the application for a temporary injunction is affirmed.


text:
    Daniel WOLF et al., Appellants, v. Carol MOUGHON, Appellee.
    No. 17047.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 23, 1978.
    Rehearing Denied March 23, 1978.

      Russell T. Van Keuren, Houston, for appellants.
    Sewell, Junell & Riggs, Gordon A. Holloway, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a take nothing judgment entered in a personal injury suit.

Daniel Wolf, individually and as next friend of Shannon Renee Wolf, and Mary G. Wolf initiated this suit against Carol Mou-ghon for damages and personal injuries sustained by Mary Wolf and her daughter Shannon in an automobile collision. The plaintiffs alleged that the defendant was guilty of various acts of common law negligence and was also negligent per se in failing to keep her vehicle on the right side of the road. Article 6701d, § 52, Tex.Rev. Civ.Stat.Ann. The defendant filed a general denial and also alleged affirmative defenses of unavoidable accident and sudden emergency. The jury failed to find (1) that the defendant’s failure to keep her vehicle entirely within the right half of the roadway was negligent and; (2) that she had failed to make such application of the brakes as a person using ordinary care would have made. On the basis of the jury’s verdict, the trial court rendered judgment in favor of the defendant.

In their first two points of error, the plaintiffs contend that the trial court erred in overruling their motion for judgment n. o. v. and their amended motion for a new trial. In their third point, they contend that the undisputed evidence establishes the defendant’s negligence as a matter of law.

It is the defendant’s contention that the first two points of error are so general and multifarious that they should not be considered. The statement under these points is sufficient to direct the court’s attention to the matters complained of by the plaintiffs since it refers to specific paragraphs in the plaintiff’s motion for judgment n. o. v. and amended motion for new trial. When a point is so general that it does not comply with Rule 418, Tex.R.Civ.P., the point may be considered if the statement, argument and authorities under the point satisfactorily direct the court’s attention to that which is claimed to constitute reversible error. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

On this appeal plaintiffs are faced with a situation where the jury has returned negative answers to issues upon which they had the burden of proof. Thus, in order to prevail in their appeal, the plaintiffs must demonstrate that the evidence established the defendant’s negligence as a matter of law. Smith v. Safeway Stores, Inc., 433 S.W.2d 217 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.)

Where the legislature has declared that a particular act shall not be done, it fixes a standard of reasonable care, and an unexcused violation of the statute constitutes negligence as a matter of law. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Missouri Pacific R. R. Company v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). The plaintiffs, therefore, have met this burden if the evidence establishes as a matter of law: (1) a violation of a penal standard, (2) which was unexcused. Southern Pacific Co. v. Castro, 493 S.W.2d 491, 497 (Tex.1973).

The accident occurred on Friday, November 29, 1974, at approximately 7:00 a. m. The defendant was driving east on Windswept Street in Houston, Harris County, Texas. The streets were wet, but it was not raining at the time. The plaintiff Mary Wolf, with her daughter Shannon as a passenger, was driving on Windswept Street in a westerly direction. As the defendant’s automobile came around a curve, it went up over the right curb and out of control. The vehicle then came back over the curb, and after returning to the street it proceeded into the left lane of traffic where it collided with plaintiff’s vehicle. The defendant testified that she was driving 25-30 m. p. h. before she went up on the curb for the first time. When the plaintiff saw the defendant’s car go out of control, she pulled her car close to the curb on the right side and was bringing the vehicle to a stop when the accident occurred.

The defendant did not deny that her vehicle was traveling on the left side of the road when it struck the plaintiff’s automobile. Thus, unless éxcused, the presence of the defendant’s vehicle on the wrong side of the road violated the duty imposed by the statute. Southern Pacific Co. v. Castro, supra.

In order to show an excuse for her actions, the defendant testified that she had some repair work done on her car brakes two days prior to the accident. She picked up her car from the repair shop at closing time on Wednesday, and she noticed that the vehicle would pull to the right each time she applied the brakes. The next day, Thursday, was Thanksgiving, and she could not return the automobile to the repair shop on that day. She used it only to go to her parents for Thanksgiving dinner. The next morning, Friday, she was returning the automobile to the repair shop to have the problem corrected when the accident occurred. The defendant’s father testified that he had driven the car and had noticed it pulling to the right when he applied the brakes. When asked whether it pulled to the right generally or only when the brakes were applied, he answered, “pulled when I applied the brakes.”

The defendant could not definitely say whether or not she had applied her brakes as she came around the curve on Windswept Street. She could give no reason why her car went up on the curb and out of control.

A. Yes, sir. It jumped the curb. It sure did.
Q. And you are not — according to your deposition, and you can’t tell us any reason at all why the car jumped the curb?
A. No, I can’t. It’s very strange, but I just find myself up on the curb before I knew, and I was in an emergency situation.
Q. Now, when you got up on the curb, had you applied your brakes before that time and swerved and lost control?
A. No, not that I know of. No.
Q. You came around the curve and jumped up?
A. That’s all I can remember, is I was making the curve and all of a sudden I found myself up on the curb.
Q. But was it because you came around the curve and slipped with your car that you went up there?
A. I don’t know. I really can’t say.

It is the plaintiff’s contention that there was no evidence that a brake failure caused the defendant to lose control of her vehicle nor even that she had made application of her brakes prior to losing control. It is the defendant’s argument that the jury could reasonably infer from the evidence that the faulty condition of brakes caused the accident.

Since the undisputed facts show that the defendant’s vehicle was on the wrong side of the road at the time of the collision, the defendant was required to offer some evidence of a permissible excuse in order to justify her failure to comply with the statute. L. M. B. Corp. v. Gurecky, 501 S.W.2d 300, 303 (Tex.1973). The excuse must be one which falls within a permissible class such as impossibility, emergency, or incapacity. Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972). If there is some evidence in the record of a permissible excuse, the trial court’s judgment must be affirmed since the plaintiffs failed to carry their burden of persuading the jury that the defendant was negligent under the common law standard. L. M. B. Corp. v. Gurecky, supra.

The questions presented for this court’s determination are, (1) whether the claimed excuse is acceptable under the holding of Impson v. Structural Metals, Inc., supra, and (2) if so, whether there is some evidence in the record sufficient to raise the issue. Antee v. Sims, 494 S.W.2d 215 (Tex. Civ.App.—Houston 14th Dist. 1973, writ ref’d n. r. e.). If the evidence raises more than a mere speculation or suspicion of excuse, it will be considered sufficient. Id. at 218.

One type of permissible excuse is where the defendant is confronted by an emergency not due to his own misconduct, such as an unexpected failure in the vehicle’s steering or braking system. Impson v. Structural Metals, Inc., supra.

In Antee supra, it was held that sufficient evidence of excuse was shown where the defendant applied his brakes and his truck veered into the left lane of traffic. Other than the defendant’s own account of his brakes pulling to the left, no evidence was introduced to prove or disprove a failure in the braking system. However, the defendant also testified that his brakes had not previously pulled to the left. The court noted that there was no evidence in the record indicating any misconduct on the part of the defendant which gave rise to the alleged brake failure.

There are two reasons why the evidence in the case at bar does not raise the issue of a permissible excuse. First, the defendant failed to offer any evidence indicating that the faulty braking system caused her to lose control of the vehicle immediately prior to the accident. There is no affirmative evidence that she applied her brakes before her car first went up over the curb and if there is an inference to be gained from her testimony, it is that she probably did not do so. The evidence, at best, creates only a suspicion that her loss of control might have been due to a faulty braking system. The fact alone that the defendant’s brakes were defective does not give rise to the inference that the defective braking system caused the vehicle to jump the curb and go out of control. Under the record before the court, it was just as likely that some other factor such as the defendant’s own inadvertence was the cause of her loss of control. The second reason that the evidence falls short of creating an issue of permissible excuse is that there is no showing that the defendant was confronted with an emergency not due to her own misconduct. It is undisputed that for some time prior to the morning of the accident the defendant had been fully aware of the defective condition of her brakes and that she knew of the tendency of the car to pull to the right when the brakes were applied. The fact that a defect is shown does not under all circumstances establish a permissible excuse. L. M. B. Corporation v. Gurecky, supra, page 302.

Since the defendant failed to offer evidence showing that the violation of the statute in question was due to a permissible excuse, the trial court erred in refusing to enter the judgment for the plaintiffs in the amount of damages as found by the jury. Although the jury failed to answer the proximate cause issues, which were conditioned upon affirmative answers being given to the common law issues, such issues must be deemed established as a matter of law. Missouri Pacific R. R. Co. v. American Statesman, 552 S.W.2d 99, 104 (Tex.1977).

The judgment of the trial court is reversed and judgment is here rendered that the plaintiff, Daniel Wolf, as next friend of Shannon Renee Wolf, recover judgment against the defendant, Carol Moughon in the amount of $2500.00; that the plaintiff Mary Wolf recover judgment against said defendant in the amount of $500.00, and that Daniel Wolf, individually, recover judgment against said defendant in the amount of $897.00 for medical expenses and in the amount of $50.00 for property damage.


author: REYNOLDS, Justice.

text:
    TWIN CITY FIRE INSURANCE COMPANY, Appellant, v. Anita CORTEZ et al., Appellees.
    No. 8869.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 27, 1978.
    Rehearing Denied March 27, 1978.

      Gibson, Ochsner, Adkins, Harlan & Han-kins, Mac W. Hancock, III, Amarillo, for appellant.
    Mike Millsap and Tom West (Mike Mill-sap), Lubbock, for appellees.
   REYNOLDS, Justice.

The insurance carrier appeals from a judgment maturing an award of workers’ compensation death benefit weekly payments because of a failure to continue timely payments and decreeing a lump sum payment without discount, together with penalty and attorney’s fees. We affirm.

By a final 18 March 1975 award of the Industrial Accident Board, Twin City Fire Insurance Company was ordered to pay workers’ compensation benefits as a result of the death of employee Pedro Cortez. The Board ordered that $63.00 be paid weekly, apportioned: $31.50 to Anita Cortez, the surviving widow, until her death or remarriage, less $6.30 per week for 300 weeks paid to her attorneys; $31.50 to Anita Cortez for the use and benefit of the minor children during their eligibility, after which time the benefits were added to those payable to Mrs. Cortez, less $6.30 per week for 300 weeks paid to the attorneys. The company made the weekly payments through the period ending 6 June 1976.

In June of 1976, an agreement was approved by the Board authorizing the company to, and the company subsequently did, pay, in a lump sum discounted at four per cent, the remaining attorney’s fee portion of the award before it became due. During the period from June 14 to July 25 of 1976, the company failed to make weekly payments to Mrs. Cortez, either individually or for the use and benefit of her minor children. No one contacted the company relative to the non-payments.

On 21 July 1976, Anita Cortez and her minor children initiated this litigation against Twin City Fire Insurance Company. The object of the suit was to mature the award into a lump sum with the imposition of the twelve per cent penalty and reasonable attorney’s fees under the authorization of Vernon’s Ann.Civ.St. art. 8307, § 5a, which reads, in part:

Where the board has made an award against an association requiring the payment to an injured employe or his beneficiaries of any weekly or monthly payments, under the terms of this law, and such association should thereafter fail or refuse, without justifiable cause, to continue to make said payments promptly as they mature, then the said injured employe or his beneficiaries, in case of his death, shall have the right to mature the entire claim and to institute suit thereon to collect the full amount thereof, together with twelve per cent penalties and attorney’s fees, as herein provided for.

Eight days later when the company learned of the suit, two drafts, one payable to Mrs. Cortez and one payable to her for the use and benefit of the minor children, were issued for the weekly benefits for the period June 14 through July 25 of 1976. Thereafter, weekly drafts were issued to the date of trial. Mrs. Cortez refused to accept the tendered payments.

The cause was heard by the court without the intervention of a jury. Additional to hearing evidence of the previously recited facts, the court heard testimony from the manager of the company’s records that: the “diary card” used to issue drafts would have been out of the file cabinet a lot more than normal because of the unusual amount of correspondence in connection with the lump sum payment of attorney’s fees; the diary card “got out of that file,” has not been located, and there is no explanation for its disappearance; the payments were stopped through mere clerical oversight or the neglect in losing the diary; and the company did not have a “back-up” system to make sure the checks were sent out on time. It was stipulated that Mrs. Cortez had a life expectancy of 27.6 years, and there was testimony on the issue of attorney’s fees.

Finding that there was no justifiable cause for the company to cease making the weekly payments, the court matured the entire claim. Judgment was rendered for the sum of $90,417.60, computed at $63 per week for each of the 1,435.2 weeks (27.6 years) of Mrs. Cortez’s life expectancy, without discount, together with a twelve per cent penalty of $10,850.11 and reasonable attorney’s fees of $37,139.20, subject to a remittitur of $7,000 “in the event that no appeal is taken” by the company, and a remittitur of $3,500 “in the event that no appeal of this cause is taken before the Supreme Court of Texas.” The total amount of the judgment was apportioned between Mrs. Cortez and the minor children.

Appealing, the insurance company attacks the judgment by the use of twenty-four points of error. The first four points are contentions that the evidence is legally and factually insufficient to support the court’s finding that there was no justifiable cause for the temporary failure to pay the weekly death benefits.

Quoting from the dissent in Travelers Insurance Company v. Hill, 163 Tex. 81, 351 S.W.2d 530 (1961), the company emphasizes that the punitive liability in the statute was not designed to provide windfalls for claimants and should not be visited upon it when the nonpayment was an honest mistake, was not willful, could have been avoided by a simple demand for payment, and was rectified immediately upon notice. The argument was not persuasive to the majority in Hill, where, at p. 532, the court specifically rejected the demand requirement, noting that the statute does not make a demand necessary.

The company was under a duty to pay the weekly payments as they became due, Minor v. London Guarantee & Accident Co., Limited, 280 S.W. 163, 165 (Tex.Comm’n App.1926, holding approved), unless it had justifiable cause for not doing so. Art. 8307, § 5a. The law itself does not define justifiable cause; however, it has been determined that justifiable cause is not shown by mere neglect to pay, Minor v. London Guarantee & Accident Co., Limited, supra, at 165, or by the failure to exercise reasonable diligence. Home Indemnity Company v. Mosqueda, 473 S.W.2d 456, 458 (Tex.1971).

Under the evidence in this cause, the trial court was justified in concluding that mere clerical oversight or neglect re-suited in the company’s failure to perform its duty, and that reasonable diligence was not exercised to make sure that the payments were promptly made. Accordingly, the evidence is ample to support the court’s finding that there was no justifiable cause, and the first four points are overruled. Absent a justifiable cause for the failure to promptly pay, Mrs. Cortez and her minor children had the right to mature and collect the entire claim and recover the penalty and reasonable attorney’s fees as prescribed by the statute. Minor v. London Guarantee & Accident Co., Limited, supra, at 165.

Notwithstanding, the company argues, under its points five and six, that Art. 8306, § 8(d) (Supp.1978), which prohibits a lump sum payment to a widow or children where there is no remarriage or dispute as to liability, is controlling here and precludes maturing the award into a lump sum. A facet of the argument is that any apparent conflict between Art. 8306, § 8(d), and Art. 8307, § 5a, must be resolved in favor of Art. 8306, § 8(d), for, as the most recent legislation, it is the latest expression of the legislature that the benefits payable to a widow and children shall not be paid in a lump sum.

We perceive no conflict. Article 8306, § 8(d), operates on the initial award. Once that final award has been made, however, Art. 8307, § 5a, may, by its own terms, be invoked if the periodic payments are discontinued without justifiable cause. Thus, the two statutes operate in harmony in the situations to which they apply. Consequently, Art. 8306, § 8(d), does not control the situation envisioned by Art. 8307, § 5a, to arise after the initial, final award has been made. Points five and six are overruled.

Next, by points seven through nine, the company questions the court’s refusal to discount the lump sum awarded as well as the allowance of attorney’s fees on the non-discounted amount. The company cites Art. 8306a, which provides that when weekly compensation payments are accelerated by payment of a lump sum before becoming due, discounts shall be allowed for present payment at four (4%) per cent compounded annually.

Absent the citation of case authority, the answer is found in the language of Art. 8307, § 5a. The statute gives the “right to mature the entire claim and to institute suit thereon to collect the full amount thereof.” The right given is by statutory directive which, operating in a situation different from those covered by Art. 8306a, does not provide for a discount. Conformably, the statute was the basis used in Home Indemnity Company v. Mosqueda, supra, for maturing into a lump sum without discount the total of the weekly benefit payments originally awarded. The points are overruled.

Utilizing its points ten through nineteen, the company challenges the legal and factual sufficiency of the evidence to sustain the awards of $30,139.20 and $7,000, respectively, as reasonable attorney’s fees for the trial and appellate processes. Of the total attorney’s fees fixed, the trial fees of $30,139.20 are one-third of the matured lump sum of $90,417.60 and 29.76% of that matured sum plus the $10,850.11 penalty. The company asserts that the recovery should not exceed the twenty-five per cent maximum allowed by Art. 8306, § 7d (Supp.1978), on a recovery in court on a matter carried from the Board. We do not agree.

In a suit to mature an award, the requirement as to amount of attorney’s fees is, by statute, one of reasonableness, and Art. 8306, § 7d, has no application. General Accident Fire and Life Assurance Corporation v. Hames, 416 S.W.2d 894, 897-98 (Tex.Civ.App.—Dallas 1967, no writ). The court heard testimony from an attorney experienced in workers’ compensation matters and litigation who had examined the file counsel had compiled in this cause. He expressed the opinion that a fee of one-third was not only fair, but is the usual percentage for Texas plaintiffs’ attorneys. He further expressed the opinion that an attorney’s fee of $10,000, with a provision for its remittitur if there is no appeal and a $5,000 remittitur if there is no appeal to the Supreme Court, was fair and reasonable for the appellate processes.

There is, of course, some evidence of the reasonableness of the fees fixed and we cannot say that the evidence is factually insufficient to support the award. Points ten through nineteen are overruled.

A related challenge, presented in points twenty and twenty-one, is to the judgment’s provision for the imposition of attorney’s fees for appeal without qualification. It is argued that the attorney’s fees are unconditionally assessed without regard to which party may appeal or may ultimately prevail. To support the argument, the company relies on King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.). There, in a suit on an oral contract for services rendered, it was held that attorney’s fees provided in the event of an appeal were improper and would be stricken where the awards were unconditional and do not purport to turn upon whether or not appellant succeeds in the appellate courts.

We decline to follow King Optical on the authority of International Security Life Insurance Company v. Spray, 468 S.W.2d 347 (Tex.1971), which approved a similarly worded judgment covering attorney’s fees during appeal. Moreover, we think it is implicit in the judgment that the attorney’s fees for the appellate processes may be incurred only if the company is unsuccessful on appeal. If the company is successful in setting aside the judgment, there would be no basis for the imposition of any attorney’s fees; and, if the company is partially successful, the appellate court may require a remittitur. In either event, the vice asserted to be found in the judgment is not a reality. Points twenty and twenty-one are overruled.

The company uses its final three points to advance the contention that the court incorrectly computed the amount of benefits. Under these points, the company complains because the court, in calculating all weeks at the $63 weekly rate, gave no credit for the weeks for which the attorney’s fee portion of the original award were paid in advance pursuant to the settlement agreement. We do not believe the company is in a position to complain.

In essence, the company complains that it was not given credit for payments made. If the company desired to establish the payment as a credit, it was required by Rule 95, Texas Rules of Civil Procedure, to plead distinctly the nature of such payment and the several items thereof. The company did not affirmatively plead these matters and, therefore, the issue was not raised. See Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d 162, 163 (Tex.1963). Points twenty-two through twenty-four are overruled.

The judgment is affirmed.

      . The weekly payments for the use and benefit of the minor children were to continue until the minors reached eighteen years of age and thereafter if actually dependent, or until twenty-five years of age if enrolled as a full time student.

      . All references to articles are to the articles of the Texas Workers’ Compensation Law, Vernon’s Ann.Civ.St. arts. 8306, et seq.

      . The attorney’s fees followed from the court’s findings of entitlement “to reasonable attorney’s fees in the sum of $30,139.20,” and “to reasonable appellate attorneys’ fees in the sum of $7,000, subject to remittitur as provided below.”


author: HUGHES, Justice.

text:
    DEE’S CABINET SHOP, INC., Appellant, v. George T. WEBER, Jr., et al., Appellees.
    No. 17936.
    Court of Civil Appeals of Texas, Fort Worth.
    March 2, 1978.

      Goodstein & Starr and Wade Starr, Dallas, for appellant.
    Ernest T. Foree, Dallas, for appellees George T. Weber, Jr. and wife, Shirley.
    Goldberg & Alexander and John M. McMullen, Dallas, for appellee Southwest Savings Ass’n.
   OPINION

HUGHES, Justice.

Dee’s Cabinet Shop, Inc. (appellant) brought suit against the following defendants: (1) McAnally Construction, Inc.; (2) George T. Weber Jr. and wife; and (3) Southwest Savings Association.

Dee appealed from the judgment for Webers and Southwest. This case involves a constitutional lien under Tex.Const. art. 16, § 37.

We affirm.

McAnally was engaged in the construction business. Dee sold various cabinets, doors, and paneling to McAnally. Dee contends that the items listed above were installed in two houses that were being constructed by McAnally on two lots that it (McAnally) owned at the time.

Southwest had a deed of trust on Lot 4, Block “B”, which was filed for record on April 15, 1975.

On or about August 19, 1975 McAnally sold and conveyed to the Webers the real property and improvements on the other lot, Lot 11, Block 14. In connection with the sale of said property, Southwest loaned $27,000.00 to the Webers. This loan was secured by a deed of trust.

Dee contends that the doors and cabinets were delivered to the two sites between July 3 and August 4, 1975. On September 22, 1975, Dee filed with the county clerk of Denton County, Texas, two instruments claiming liens for materials installed in the houses built on the two lots; these instruments were acknowledged, but not verified. In his petition, Dee alleged both statutory and constitutional mechanic’s and material-man’s liens on the said lots, and asked for foreclosures of such liens. Summary judgment was granted Dee against McAnally for the amount of the debt, but its motions for summary judgment against the other defendants were denied. At the trial, in his opening statement to the court, Dee’s attorney waived its claim of statutory lien and relied solely on the constitutional lien. After Dee rested its case, the court rendered judgment that Dee take nothing as against the Webers and Southwest.

Tex.Const. art. 16, § 37 provides:

“Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.” (Emphasis added.)

In accordance with the mandate of the Texas Constitution, the Legislature has adopted Tex.Rev.Civ.Stat.Ann. art. 5452 to 5472e, which are found in Chapter 2, V.A. T.S., entitled “Mechanics, Contractors and Material Men.”

Tex.Rev.Civ.Stat.Ann. art. 5452 (Supp.1978) provides in part that:

“Any person or firm . . . who may labor, specially fabricate material, or furnish labor or material: (a) for the construction or repair of any house, building, or improvement whatever; within this state under or by virtue of a contract with the owner, owners, or his or their agent, trustee, receiver, contractor, contractors, or with any subcontractor; upon complying with the provisions of this Chapter shall have a lien on such house, building, fixtures, . . . and shall have a lien on the lot or lots of land . to secure payment: (a) for the labor done or material furnished or both for such construction or repair; .

Tex.Rev.Civ.Stat.Ann. art. 5453 (Supp.1978) provides in part that:

“The lien provided for in Article 5452 may be fixed and secured in the following manner:
1. Every original contractor, not later than one hundred twenty (120) days, . shall file his affidavit claiming a lien, to be recorded in a book kept by the county clerk for the purpose in the office of the county clerk of the county in which such property is located . . and he shall send to the owner . . . two (2) copies of such affidavit claiming a lien. . ” (Emphasis added.)

An original contractor is one who contracts with an owner either directly or through his agent. Tex.Rev.Civ.Stat.Ann. art. 5452, § 2e (Supp.1978). As between the owner and the original contractor, the original contractor need not comply with the requirements of the statute, because the original contractor’s constitutional lien extends as far as the statutory lien. The constitutional lien is not binding on subsequent purchasers who are without actual or constructive notice of the constitutional lien. Stone v. Pitts, 389 S.W.2d 601 (Tex.Civ.App.—Waco 1965, no writ); Newman v. Coker, 310 S.W.2d 354 (Tex.Civ.App.—Amarillo 1958, no writ).

No actual notice was given by Dee (or anyone) to the Webers or to Southwest. Tex.Rev.Civ.Stat.Ann. art. 5453, § 1 (Supp.1978), quoted in part above, provides a method whereby the original contractor can enforce his constitutional lien as against third parties by way of constructive notice. The method provided is by filing affidavits with the county clerk within 120 days and sending two copies of the affidavit to the owner. On or about September 22, 1975, Dee did file two instruments with the county clerk which did not contain affidavits, although they were acknowledged.

The following discussion is found in 41 Tex.Jur. Notice § 7 at 524-525 (1963):

“Actual notice is rebuttable but constructive notice is a legal inference, conclusive in its nature, established from facts such as notice imparted by the record of instruments. It does not rest on personal information or knowledge. It has been said that constructive notice would not exist but for some statute, and that this kind of notice is the legal effect prescribed by law of certain things, most frequently illustrated by registration statutes, lis pendens notices, and the like.”

In the situation before us, a method of giving constructive notice was provided by Tex.Rev.Civ.Stat.Ann. art. 5453, § 1 (Supp.1978). The instruments that appellant filed with the county clerk did not have affidavits attached; therefore, Dee cannot avail itself of the statute whereby constructive notice is allowed in the case of properly filed affidavits.

Dee argues that the instruments gave constructive notice in that the two instruments were eligible to be recorded under Tex.Rev.Civ.Stat.Ann. art. 6626 (Supp.1978). We do not agree. There are many instruments that are entitled to be recorded within the meaning of Tex.Rev.Civ.Stat.Ann. art. 6626 (and in fact are recorded) that do not give constructive notice. An example is a recorded deed lying outside of a purchaser’s chain of title; it may be recorded in the county clerk’s office, but it doesn’t give the purchaser constructive notice. 49 Tex.Jur.2d Records and Registration Acts § 69 at 395 (1963).

We have considered each of the appellant’s points of error and each is overruled.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Homero BARRERA, Appellant, Cross-Appellee, v. DUVAL COUNTY et al., Appellees, Cross-Appellants.
    No. 16001.
    Court of Civil Appeals of Texas, San Antonio.
    March 3, 1978.
    Rehearing Denied March 22, 1978.
    John F. Ryan, Laredo, for appellant, cross-appellee.

      J. G. Hornberger, Laredo, Richard R. Gonzales, Hebbronville, R. E. Lopez, Alice, for appellees, cross-appellants.
   PER CURIAM.

The record in this case was filed in this Court on January 5, 1978. Since February 4 was a Saturday, appellant’s brief was due on February 6, 1978, on which date appellant filed his motion for extension of time for filing his brief.

Appellant states in the verified motion that although his attorney ordered the transcript, it was never delivered to appellant’s attorney by the district clerk but, instead, was delivered by the district clerk to this Court or to the attorney for appellees. The transcript shows on the cover that, although it was ordered by counsel for appellant, it was delivered to counsel for appel-lees.

The transcript was filed in this Court by one of the attorneys for appellees on January 5, at which time such attorney paid the deposit required by Rule 388a, Tex.R.Civ.P. (1978). On that date the Clerk of this Court notified counsel for appellant that the transcript had been filed, and appellant’s counsel then forwarded to our Clerk a check to cover the deposit required by Rule 388a.

In the motion for extension of time, counsel for appellant states that he has been unable to prepare his brief because his attempts to secure the transcript from counsel for appellees have been unsuccessful. When this motion was received by our Clerk, she telephoned counsel for appellant and told him that the transcript had been on file in this Court and available to him since January 5. At his request, she then forwarded the transcript to him. Prior to this time, counsel for appellant made no effort to withdraw such transcript for the purpose of preparing his brief.

Rule 390 provides that either party may file the transcript for which he has applied and which has been delivered to him, and the fact of application and delivery to the applicant must appear by endorsement of the district clerk on the transcript. The rule then continues:

If the indorsement shows that it was applied for by one party and delivered to the other, it must be shown by the in-dorsement of the clerk, or otherwise, to entitle it to be properly filed as the transcript of the party to whom it was delivered, that it was delivered to him by consent of the other party, as each party has the sole right to the transcript which he has applied for to be made out for him; and if it is so filed without that fact being shown, the court may strike the case from the docket as improperly filed, upon its own inspection, or upon motion of the party to whom the transcript belonged.

In this case the endorsement of the district clerk shows that the transcript was ordered by the attorney for appellant and that it was delivered to the attorney for appellees. The endorsement of the clerk does not reflect that such delivery to counsel for appellees was made with the consent of counsel for appellant, nor is such consent “otherwise” shown.

As already stated, after counsel for appellant was notified that the transcript had been filed, he made the required deposit and now seeks a motion for extension of time for the filing of his brief. Both such actions were taken with the knowledge that he had not received the transcript from the district clerk and that it had been delivered to this Court by some other person. These actions by appellant clearly amount to a ratification of the filing of the transcript in this Court by someone other than counsel for appellant, since such actions of necessity were based on the assumption that the case was properly in this Court. At no time did appellant protest the filing of the transcript, nor did he request an extension of time so that he might gain possession of his transcript and file it himself.

Under these circumstances, it is clear that appellant has not shown “good cause,” as required by Rule 414, for his failure to file his brief within 30 days after the record was filed in this Court. The transcript, at all times, was available for withdrawal by appellant’s counsel upon his giving a proper receipt. Rules 395, 396.

The motion for extension of time is denied and the appeal of Homero Barrera is dismissed for want of prosecution. Rule 415.

In this case appellees also complain of the judgment of the trial court. This Court has previously entered an order providing that appellees should file their brief in answer to appellant’s brief and presenting the points upon which they rely as cross-appellants, within 25 days after the filing of the brief of Homero Barrera. Under the circumstances, it is ordered that appellees shall file such brief, embodying their challenges to the judgment below, no later than April 4, 1978, and Homero Barrera shall file his reply brief no later than 25 days thereafter. Homero Barrera, or his counsel, shall forthwith return the transcript in this ease to the Clerk of this Court.


author: DODSON, Justice.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Lou Ann MOONEY, widow and Community Survivor of Kevin G. Mooney, Appellee.
    No. 8842.
    Court of Civil Appeals of Texas, Amarillo.
    March 6, 1978.
    Rehearing Denied March 27, 1978.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson, Clifford A. Stein and Richard F. Brown, Amarillo, for appellant.
    Bob Huff & Associates, Robert E. Teel, Lubbock, for appellee.
   DODSON, Justice.

Lou Ann Mooney, plaintiff-appellee and surviving widow of Kevin G. Mooney, deceased, brought suit against Allstate Insurance Company, the defendant-appellant. By her action, Mrs. Mooney sought to recover the proceeds of an insurance policy she alleged was in force on the life of her husband. Allstate claimed the policy had lapsed prior to the death of Kevin Mooney for non-payment of premiums, as provided in the policy, and for non-acceptance of a late payment offer to reinstate the policy. The non-jury trial resulted in the court entering judgment for Mrs. Mooney in the amount of $25,900, representing the $20,000 face amount of the policy, $3,500 attorney’s fees and a statutory penalty of $2,400. Allstate appeals the judgment. We reverse and render.

The pertinent facts are these:

(1) On or about 18 September 1973 Allstate issued a policy of life insurance on the life of Kevin Mooney with a face amount of $20,000 which designated Lou Ann Mooney as the primary beneficiary.

(2) The policy of insurance required each monthly premium to be paid on or before the first day of the month or within a grace period of 31 days thereafter.

(3) The Mooneys failed to pay the monthly premium due on 1 May 1974 by 1 June 1974, the last day of the grace period.

(4) On 4 June 1974 Allstate sent Mooney a “Life Policy Late Payment Offer” to reinstate the policy in accordance with the terms of the offer.

(5) The “Life Policy Late Payment Offer” stated, in part, that the life policy had terminated; however, the policy could be reinstated upon receipt of all past due premiums if all the conditions of the offer were met. The special offer did not extend the grace period for payment of the premiums on the policy. The conditions were:

1. Every person who is insured under the policy as of the last day of the grace period must be living when payment is received.

2. Payment must be made on or before the date this offer expires.

3. Any check or draft remitted in settlement is accepted subject to collection. (Emphasis added)

(6) On 10 June 1974 the Mooneys received the late payment offer.

(7) On 25 June 1974 the late payment offer expired by its own terms.

(8) On 28 June 1974 Lou Ann Mooney mailed a check in the amount of $22.50 to Allstate, which sum was the amount specified in the late payment offer for premiums due on the first day of May, June and July, 1974, to reinstate the policy.

(9) This $22.50 check was the only payment tendered by the Mooneys to Allstate for payment of the premiums due on the first day of May, June and July, 1974.

(10) On 30 June 1974 Kevin Mooney died at 1:00 or 2:00 a. m.

(11) On 1 July 1974 Allstate received the $22.50 check forwarded by Mrs. Mooney and in due course deposited the check for collection.

(12) On or about 3 July 1974 Allstate, having knowledge that Mr. Mooney had died, sent Lou Ann Mooney a claimant’s statement form, medical authorization form, and a letter requesting a certified copy of the death certificate on Kevin Mooney.

(13) There is no claim that the policy was extended by any automatic premium provision.

(14) On or about 10 July 1974 Allstate returned the $22.50 amount tendered by Mrs. Mooney.

Allstate claims that the insurance policy on the life of Kevin Mooney terminated by its own terms on 1 June 1974 for non-payment of premiums, that the late payment offer expired on 25 June 1974 for non-acceptance according to its terms and conditions, that Kevin Mooney died before Allstate received the $22.50 tendered by Lou Ann Mooney, and that any obligation to insure the life of Kevin Mooney ceased by operation of law with his death on 30 June 1974.

Mrs. Mooney claims Allstate waived termination of the policy by forwarding the late payment offer, and that by cashing her check in the amount of $22.50 and forwarding her the requested death claim data, Allstate is estopped from asserting termination of the policy.

The questions presented by this appeal are governed by the principles pronounced in Gibralter Colorado Life Co. v. Taylor, 132 Tex. 328, 123 S.W.2d 318, 321 (Tex.Comm’n App.1939, opinion adopted) and Grand Lodge Colored Knights of Pythias of Texas v. Preston, 91 S.W.2d 496 (Tex.Civ.App.—Beaumont 1936, writ ref’d). In Gibralter the Commission of Appeals stated:

The cashier for the Company at Dallas, upon receiving the check, deposited same to the credit of the Company in a bank there and the check was forwarded for collection and was paid. We shall take for granted that the cashier knew at the time that Dewey, the insured, was dead, and that the cashier had authority from the Insurance Company to accept payment of the extension fees as she did, still the acceptance of said fees would not revive the policy, which lapsed before Dewey died. There was no insurance on Dewey’s life at the time he died. After he died, there was no subject matter to which the insurance provisions of the lapsed policy could attach. The essential foundation of a life insurance policy is the life of a human being. After the insured dies, the waiver of a forfeiture, which occurred before his death, cannot restore the life insurance contract. See Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854.

Here, the life policy on Kevin Mooney terminated on 1 June 1974. The late payment offer expired on 25 June 1974 for non-acceptance. Kevin Mooney died on 30 June 1974 at 1:00 or 2:00 a. m. The policy of insurance was not reinstated before his death. The tendered payment of $22.50 was received and acted upon by Allstate after Mr. Mooney died. At the time of his death, Allstate had no policy of insurance in effect on the life of Kevin Mooney. After he died, there was no subject matter to which the insurance provisions of the terminated policy could attach. By cashing Mrs. Mooney’s check, Allstate did not waive termination of the lapsed insurance policy.

In Preston the policy beneficiary claimed, in part, that the insurance company waived termination of the life policy and acknowledged its liability to pay the insurance by furnishing proof of death forms and permitting and encouraging the beneficiary to go to the trouble and incur the expense of making the proofs of death. The court answered:

Can a waiver give a cause of action where none existed? Proof of death, in connection with an insurance policy, is but an evidentiary matter necessary to show liability — a cause of action on the policy. The proof of death is not the cause of action, but merely one step in the evidence necessary to enforce the liability of the insurer after the death of the insured. The proof of death may be waived, but the death of the insured while the policy is in effect is the one condition under which payment may be enforced. The two facts, death of the insured and life in the policy, must concur, or no liability exists.

91 S.W.2d at 497-98. In the case at bar, there is no concurrence of the two essential facts. Mr. Mooney died after the insurance policy terminated. Under these facts and circumstances the furnishing of the proof of death information by Allstate did not waive termination of the lapsed policy.

In support of her position, Mrs. Mooney primarily relies on Grand Lodge Colored Knights of Pythias of Texas v. Green, 69 S.W.2d 149 (Tex.Civ.App.—Waco 1934), writ dism’d w. o. j., 128 Tex. 593, 101 S.W.2d 219 (1937). This case was decided prior to the decisions in Gibralter and Preston. We do not consider Green authoritative or controlling in the case before us.

In summary, we conclude that the insurance policy in question terminated prior to the death of Kevin Mooney and that Allstate did not waive and was not estopped to assert the termination.

Allstate’s points of error one through five are. sustained. Accordingly, the judgment of the trial court is reversed and judgment is here rendered that Lou Ann Mooney take nothing by her action against Allstate Insurance Co., Inc., in Cause No. 55290-B in the 181st District Court of Potter County, Texas.


text:
    Billie Frances HARRIS, Appellant, v. John B. HARRIS, Appellee.
    No. 5841.
    Court of Civil Appeals of Texas, Waco.
    March 9, 1978.
    Rehearing Denied March 23, 1978.
    James E. Crouch, Hamilton, John E. Agnew, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellant.
    W. V. Dunnam, Jr., Dunnam, Dunnam & Dunnam, Waco, for appellee.
   HALL, Justice.

This is an appeal by the wife in a divorce action. After a hearing by the court without a jury judgment was rendered awarding appellee-husband the divorce, appointing him managing conservator of the parties’ 15-year-old son and according appellant-wife visitation rights, and dividing the parties’ property. All questions raised on this appeal are related to the property division. We affirm the judgment.

The following uncontradicted facts are pertinent to our discussion. Appellee is a banker, rancher and real estate dealer. Appellant also deals in real estate. They were formally married on June 27, 1955. A daughter, who is now an adult, and their minor son, were adopted by them during this marriage. Their home was in Hamilton, Texas. That marriage ended in divorce on October 30,1969. Appellant married Dr. Don L. McCord, also of Hamilton, in August, 1970, in a formal ceremony. That marriage ended in divorce in March, 1971. In January, 1971, while appellant’s divorce action against Dr. McCord was pending, she and appellee began living together with their children at appellee’s ranch home outside Hamilton. They continued living together without benefit of formal marriage after appellant’s divorce from Dr. McCord until June 20, 1975. On that day appellant and appellee were again formally married. Between March, 1971, and June, 1975, substantial properties were acquired by both parties. Appellee filed this suit for divorce in June, 1976. The judgment in question was rendered on August 25, 1977.

It was appellant’s contentions in the case that the parties’ relationship during their living together from the time of her divorce from McCord in March, 1971, until the time of their ceremonial marriage in June, 1975, was one of informal (common law) marriage, and that, accordingly, the properties acquired by them during this period was community property.

V.T.C.A., Family Code § 1.91 provides in pertinent part that an informal marriage may be proved by evidence that the parties “agreed to be married,” and thereafter lived together as husband and wife and represented to others that they were married. The court expressly found that until the formal marriage in June, 1975, appellant and appellee did not agree to be married. Appellant asserts this finding is against the great weight and preponderance of the evidence. This contention is overruled.

On the trial appellant took the position that she and appellee intended to and did enter into an informal marriage when her divorce from Dr. McCord became final in March, 1971. She testified that in 1971 “and after that” appellee told her “he always had felt he was married to me,” that he introduced her in the community as his wife, that they held themselves out as husband and wife, and that they “were married.” The formal marriage in 1975 was performed in Dallas. Her explanation for this marriage was that it was performed on the 20th anniversary of their 1955 marriage and “we wanted to do it.” They did not give advance notice of this marriage to any friends, their children, or other relatives. In a deed conveying four acres to appellant in September, 1971, appellee stated that he was “not joined herein by my wife, she being Grantee herein, and for the further reason that the property herein conveyed is no part of the homestead of Grantor and Grantee.” In 1973, appellant and appellee made a trip to the Orient with a large group of other Texas bankers and their spouses. On the trip they represented themselves as husband and wife.

In the 1969 divorce decree between the parties, appellee was ordered to pay appellant $450.00 per month child support for the children. He continued making these payments after the parties began living together in January, 1971, until October, 1971, at which time appellant agreed he should quit because he was contributing more than the required payments toward the children’s support. Appellee testified that he never agreed to marry appellant until the time of the formal marriage in 1975; that from time to time appellant “would bring up the subject that we should get married” but he disagreed; that he never expressed to appellant that they were married and “we never agreed to get married until we did [in 1975].” In 1973, soon after appellant returned from a stay of two months alone in Waco, Texas, appellant wrote a four page letter to appellee in which she classed their relationship as one of “just friends.” In the letter she said, “I’ll be your friend to whatever extent friendship can go without hope of loving . . . You have no responsibility to me, owe me no loyalty or trust, no support, moral or material. I don’t feel any anger toward you on this basis. I can be friendly.” For the years 1971, 1972, 1973, and 1974, appellant showed her filing status on her income tax returns as “Single” and “Unmarried Head of Household.” After the marriage ceremony in 1975, she filed her returns as “Married, filing separately.”

There is other evidence bearing upon the parties’ attitudes toward their marital status during the years in question. Included in the evidence we have set forth is the showing of their practice prior to 1971 to effect decisions to marry by resorting to formal ceremonies. In the light of the whole record, the court’s finding that the parties did not agree to marry until their formal marriage in June, 1975, is not against the great weight and preponderance of the evidence.

When appellant separated from Dr. McCord, she and the children moved in with appellee at his ranch home situated on a 109-acre tract outside the City of Hamilton. In January, 1972, appellee executed a deed to appellant which on its face purported to convey all 109 acres of the homeplace. On the trial appellee asserted it was the intention of the parties that the deed convey only one-half of the tract rather than all of it. He sought reformation of the deed on the ground of mutual mistake. The trial court expressly found that when the deed was executed the parties believed it conveyed only an undivided one-half interest in the tract; that the parties were mutually mistaken as to the actual conveyance set forth in the deed; and that this mistake resulted from the failure of the scrivener to include the words “an undivided one-half” the tract in the granting clause. Upon those findings, the court granted appellee’s, plea for reformation. Appellant contends the evidence is legally and factually insufficient to support the findings. We disagree.

The evidence shows that after appellant moved to appellee’s home, they determined to make substantial improvements to the house and grounds. They agreed that appellant’s separate funds would be used to pay a portion of the expense of the improvements, but appellee insisted that in exchange for this he should convey appellant an undivided one-half interest in the place. They then determined that the value of the 109 acres was $75,000.00 and that in consideration of the one-half interest in the tract appellant would loan appellee $25,000.00, give him $1,100.00 cash, transfer to him certain bank stock worth $5,700.00, and cancel debts he owed her which amounted to $5,700.00, for a total consideration of $37,500.00. The record before us contains a sheet of paper upon which appellant set forth those calculations in longhand and wrote beside them that they were for “½ int. 109 acres & House.” After the parties reached this agreement, appellee instructed his attorney to prepare a deed conveying appellant the one-half interest. Testifying, the attorney acknowledged those instructions and admitted that either he or his secretary simply and mistakenly failed to include the phrase “an undivided one-half interest” in the granting clause of the deed. Appellee testified he did not read the deed before he executed it, but that he believed it conveyed only a one-half interest. Within a few days after its execution the deed was delivered to appellant. She testified it was the parties’ intention that the deed convey the whole tract. However, in financial statements made by her for bank credit purposes after the conveyance, she consistently listed a one-half ownership in the 109 acres. Appellee testified that when he and appellant determined to separate in 1976 she told him that he would have to move and that he had “inadvertently deeded her the whole thing.”

The evidence we have recited is legally sufficient to support the findings upon which the court ordered reformation of the deed. Considering the whole record, it is our view and holding that the evidence is also factually sufficient to support the findings.

In April, 1977, appellee and a person named Bob Colin purchased 937 acres in Brown County, Texas for a total consideration of $515,000.00. They each paid $82,-500.00 as down payment, and the balance of $350,000.00 was secured by liens on the property. Appellant asserts the court erred in failing to consider this property in dividing the parties’ community estate. The record does not support this assignment of error, and it is overruled. The court based its property division on express findings that certain properties (including the 937-acre Brown County tract) was the “only community property” in the name or possession of appellee; that certain other properties were the “only community property” in the name or possession of appellant; and that “considering the indebtedness against said properties, the total community indebtedness upon which [appellee] is presently obligated” (and other equities between the parties which we need not detail), “a fair, just and equitable division of the community estate of the parties would be the setting aside to and vesting of title in [appellee] to all of the above-described property in his name or possession subject to the indebtedness against same, and the setting aside to and vesting of title in [appellant]' of the property presently held in her name or possession subject to the indebtedness against same.”

Appellant brings forward other points and contentions. Some are rendered immaterial by our holdings set forth above. The others are without merit. All are overruled.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Billy BRIDEWELL, Appellant, v. Emory H. PRITCHETT et al., Appellees.
    No. 18000.
    Court of Civil Appeals of Texas, Fort Worth.
    March 9, 1978.
    Rehearing Denied March 23, 1978.

      Wynne & Jaffe, and Daniel J. Sheehan, Jr., Dallas, for appellant.
    Gray, Whitten & Loveless, and Jack Gray and Michael J. Whitten, Denton, for appel-lees.
   OPINION

MASSEY, Chief Justice.

The appeal is from the denial of injunction to prevent sale of real estate by a trustee under a deed of trust. The application for injunction was ancillary to Billy Bridewell’s suit against Emory H. Pritchett and his wife for specific performance of their contract. Joined is the Honorable George Hopkins who but for the injunction would have proceeded to sell the property.

Since this court was of the opinion that consummation of the sale of the real estate by the trustee would constitute interference with this court’s jurisdiction of the appeal and result in the destruction of the subject matter we enjoined sale pending hearing of the appeal, and advanced submission. See Padgett v. Mutual Building & Loan Association, 504 S.W.2d 535 (Tex.Civ.App.—Fort Worth 1971, no writ).

Judgment of the trial court in denial of injunction is affirmed. By order of this date our prior injunction is dissolved.

The specific performance sought by Bridewell was for the Pritchetts to consummate a new contract with him to effect cancellation of the attempts to foreclose. The attempted foreclosure was upon real estate which had been purchased by Bride-well from the purchaser from the Pritch-etts. In consideration of the Pritchetts’ agreement for Bridewell’s payment of $300.00 to Hopkins, plus payment of additional agreed amounts to the Pritchetts, all by cashier’s checks, it was Bridewell’s contention that his own performance or agreement was sufficient to make the contract one he was entitled to enforce.

There had in fact been a purported contract agreed upon by the parties which required performance by Bridewell as understood by him; for which there was to be return performance by the Pritchetts. However, it was the contention of the Pritchetts that Bridewell was lacking in the tender of all performances required of him by his failure and refusal to agree to pay in installments not only the principal amount of a purchase-money note executed by Bridewell’s grantor and assumed by Bride-well, but also the future interest to accrue thereon at an increased rate above that provided by the note. Because of dispute over whether Bridewell would be required to agree to pay an increased interest rate appears to have been the sole occasion for the failure of consummation of a new contract. Bridewell contended that such an increase in interest was no part of the obligatory performance by him as his consideration; the Pritchetts contended that it was, and that there was no contract unless Bridewell so agreed.

Prior to time for delivery of the cashier’s checks by Bridewell to the office of Mr. Hopkins there was discovery that there had been no specific agreement upon interest to be thereafter paid by Bridewell on the existent note obligation (or on a new note obligation). Hopkins telephoned Bridewell and notified him the amount of interest the Pritchetts required. Here the attempts to consummate a contract ended. Bridewell’s suit for specific performance supplanted any further attempt by him. Neither Bridewell nor the Pritchetts have parted with anything.

Neither party has ever changed legal position to his or their detriment because of a belief that a completed contract had been accomplished. By reason of this, perhaps, we could affirm the judgment. See Restatement of the Law, Contracts, § 52, “Acceptance of Offer Defined,” and § 90, “Promise Reasonably Inducing Definite and Substantial Action.” However, we have adopted other reasons for affirmance.

We have concluded that as applied to the equitable proceeding to exact specific performance of contract the matter of interest to be paid by Bridewell was “of the essence” thereof, under the circumstances; that because there had been no “meeting of the minds” by both parties upon the matter of interest no binding contract had been effected. No contract having arisen nothing existed to be enforced. There was not impropriety in Hopkins proceeding with a trustee’s sale and the trial court did not err in refusing to enjoin it.

The Statute of Frauds is without application because the main purpose of Bridewell was to effect a new contract for his own benefit and not to answer for the default of his grantor. Already stated is that there had been assumption of the grantor’s obligation on the original purchase-money note. Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378, 386 (1962). Neither is the statute applicable because a real estate transaction is merely incidentally involved. Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255 (1955).

The purchase-money note executed in favor of the Pritchetts by Bridewell’s predecessor, in title — in payment for the real estate intended to be sold by the trustee— provided an interest rate of seven (7%) per cent per annum. It was Pritchetts’ intention that the consummation of the contract with Bridewell was conditioned upon the latter’s agreement that as applied to the scheduled payments on the amortized indebtedness, the principal remaining to be paid on the purchase-money note (or on a new note to be substituted), there would be an increase in the interest rate to the amount of eight and one-half (8½%) per cent per annum. Other of the agreed provisions of contract were satisfactory. The Pritchetts refused to “close” unless Bride-well would agree to this increase in the rate of interest. Through Mr. Hopkins’ telephone call to Bridewell, before the cashier’s checks had been delivered to Hopkins as agent for the Pritchetts, Bridewell was so informed.

Mr. Hopkins was employed by the Pritch-etts as the substitute trustee to sell the real estate. Hopkins is an attorney. Nowhere does the record show that Hopkins was employed in the capacity of agent for the Pritchetts to effect a contract with Bride-well, though he began to act as such upon being contracted by Bridewell in the latter’s attempt to accomplish a contract with the Pritchetts. Bridewell’s communication with Pritchett was at all times through Hopkins. The situation poses a question of agency not necessary to be resolved. This is because we have concluded that even if Hopkins was agent for the Pritchetts for purposes of a new contract with Bridewell there never arose a completed contract.

The interest rate on the original purchase-money note having been 7% (amount other than “legal interest” of 6%) the matter of what should be the contract interest upon the principal indebtedness, to persist in the event of the parties’ consummation of contract, did not constitute a “detail” which the court, in an interpretation of the contract, might have provided for them in the event they failed to make any provision themselves. Seven per cent (7%) was not “legal interest”; neither would 8x/2% have been “legal interest.” To accord the greatest liberality of construction to the evidence of Bridewell would leave this Court obliged to treat the contract as one wherein there had never been any agreement upon the rate of interest.

The general doctrine has been formulated by eminent judges: an agreement framed in general terms will be enforced where the law will supply the details; but if any of its details are to be supplied by modes which the court cannot adopt, there is then no complete contract capable of being specifically executed. Pomeroy, Specific Performance of Contracts, Third Ed. 1926, p. 394, “The Contract Must Be Complete,” § 154, “Other material terms.” What might constitute all the material terms of contract must of course be determined by a consideration of each contract separately.

In this case we have concluded that by the circumstances it is correct to hold that the agreement upon the matter of interest amounted to a “detail” material to the contract itself, and “of the essence” or on the substance of the contract. So it would have been had the parties’ contract been reduced to writing; so it is where the agreements are by parol. Here there had never been anything other than conversations between Mr. Hopkins and Bridewell by which, according to Bridewell, there was the accomplishment of a completed contract.

The trial court’s judgment was in denial of the application of Bridewell for injunction because there had been no “meeting of the minds” on the contract sought to be specifically enforced. This, we hold, was the correct determination as a matter of law. However, were we of the opinion that a fact issue was raised we would likewise conclude propriety of the judgment because there would have been no error in making the factual conclusion that there was no “meeting of the minds.” Furthermore, because of this, the denial of the injunction was proper.

The judgment is affirmed. Our prior injunction preventing sale by trustee is dissolved.


author: JONES, Justice.

text:
    Curtis Lee MAYES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 14, 1978.
    Terrence R. Fitzgerald, Deputy Dist. Defender, Daniel T. Goyette, Asst. Director, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Curtis Lee Mayes and his cousin, Leslie Beecham, were each indicted separately for the commission of two robbery-murders that occurred in Louisville, Kentucky.

At the time the crimes were committed Mayes was two months short of being 18 years old. The Jefferson County Juvenile Court transferred jurisdiction of his case to the circuit court.

On the morning of the trial, May 25,1977, after the jury had been selected, but before the trial began, Beecham entered a plea of guilty. Upon the recommendation of the Commonwealth’s Attorney that Beecham receive a sentence of 25 years on each of the homicide charges, and a sentence of 20 years on each of the robbery charges, the trial court accepted the plea. However, sentencing was deferred pending a pre-sen-tence report. The same recommendation and offer was made to Mayes. He refused the offer and was tried and convicted on all charges. From a judgment entered in conformity with the jury's verdict imposing two life sentences on the murder charges and two sentences for robbery totaling 32½ years, Mayes prosecutes this appeal. He asserts that the Jefferson County Juvenile Court illegally transferred jurisdiction of his case to the circuit court; that the trial court erred by permitting the Commonwealth’s Attorney to impeach a portion of Beecham’s testimony; and that his confession was illegally obtained and involuntarily given.

In view of Mayes’ assertions of error, this court finds it is necessary to detail some of the relevant facts.

The first robbery-murder occurred at Duncan’s Standard Service Station on Gardiner Lane in the city of Louisville on August 1, 1976. During the course of the robbery the attendant, Charles Ferguson, was murdered. Sometime after 4:00 A.M. the night clerk at Ramada Inn, located across the street from the service station, was approached by a motorist who inquired why no one was at the station, although the lights were on. The clerk and the motorist went to the station. They found the body of Ferguson lying in a pool of blood in the station’s rest room. The police were notified and arrived at the scene shortly thereafter. Jim Duncan, owner of the station, testified at trial that $147.62 had been taken. The doctor who performed the autopsy testified that Ferguson died as a result of two gunshot wounds in the head.

The other robbery murder occurred at Hannah Jewelers, 3318 Naomi Lane, Louisville, Ky. Mrs. Grace Noble, a part-time employee, arrived at work about 1:10 P.M. Mrs. Noble went to a room at the rear of the store to do some paper work. About 1:20 P.M., William Hannah, owner of the store, went across the street to have lunch. A customer, Joyce Dewitt, entered the store sometime between 1:20 and 1:30 P.M. No one was in the front showroom. Mrs. Dewitt called for assistance, and heard someone in the back room say, “I can’t come out right now.” At 1:30 P.M., the accountant for the jewelry store arrived. He found no one in the store. However, he noticed the jewelry case where rings, watches and diamonds were kept was empty. He entered a back room where Mrs. Noble’s body was found. A pathologist testified that Mrs. Noble had been stabbed 13 times and that at least two of the wounds caused her death. Mr. Hannah testified that rings and watches valued at $5600.00 had been taken.

Acting on a tip of an informant, Detective Spellman took Mayes into custody at 8:00 P.M., August 13, 1976, and took him to police headquarters for questioning. Subsequently, Mayes admitted his part in the two robbery-murders. Later, he took the officers to a sewer in the neighborhood where he lived. There they found a shopping bag containing a hunting knife and tags from watch bands taken from Hannah’s. Mayes was cooperative with the officers. He and the police had breakfast and returned to the police station. After signing a waiver of his rights, Mayes gave the police a lengthy oral statement which was recorded. He admitted participation in the crimes, but denied that he murdered Ferguson and Mrs. Noble. He admitted that he shared in the fruits of the robberies. He told the officers that his cousin Leslie Beec-ham shot Ferguson and “put Mrs. Noble to sleep.” Mayes requested that he be taken to an aunt’s house where he lived, so that he could tell members of his family about his participation in the crimes before they found out about it in the newspapers. He provided the officers with the clothing he and Beecham wore the day of the jewelry robbery. The police complied with Mayes’ request. After a short visit with members of his family, fond farewells were exchanged and he, accompanied by the police, returned to the police station.

The above is a narrative account of the two robbery-murders. Additional details will be mentioned as they appear relevant to the questions presented.

This court rejects Mayes’ claim that the juvenile court illegally transferred his case to the circuit court. The juvenile court heard evidence and arguments on the issue of whether the best interest of Mayes and the public required that he be tried under the law governing crimes. Mayes was represented by counsel at the hearing and thereafter. His rights were fully explained to him.

The juvenile court made findings of fact in strict compliance with statutory criteria for transfer as expressed in KRS 208.170(3). It found that the offenses were committed against persons rather than property; that the offenses had sufficient prosecutive merit to warrant transfer t.o circuit court; that the offenses were aggressive, premeditated, willful and committed without remorse; that the juvenile court records and testimony of witnesses demonstrated sufficient reasons to warrant transfer and that Mayes “is now 18 years of age and found to be not susceptible to treatment or rehabilitation within the juvenile facilities available to the county.’’ (Emphasis added). The juvenile court also found Mayes “is in specific need of long term treatment for unsocialized, aggressive behaviour.”

This court finds that the order of transfer afforded Mayes every constitutional protection provided by law and was a proper order of transfer.

Mayes’ second argument is based upon the admission of a prior inconsistent statement of Beecham introduced by the testimony of Officer Spellman. Mayes contends the testimony was not admissible under the exception in Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). When Beecham was called as a witness for the Commonwealth, he testified as follows:

“Q. State your name for the record please.
A. Leslie Beecham.
Q. Where do you reside?
A. What you say?
Q. Where do you live?
A. 5208 Kilmer.
Q. Mr. Beecham, I would like to direct your attention back to the early morning of August 1st of 1976: Were you present between the hours of 1:00 and 4:00 in the morning at the Duncan Standard Service Station?
A. No, I wasn’t.
Q. Did you have any conversation with Curtis Mayes afterward as to what may have transpired at that location?
A. No.”

A number of other questions were asked Beecham. He responded to none of them other than to say: “I said I am not going to testify against Curtis Mayes about anything.”

Upon request of counsel for Mayes, a conference was held in chambers. He argued that Beecham’s refusal to answer questions prevented any cross-examination, and the admission of his prior statement was a denial of the right of confrontation. Following the conference, Beecham again took the witness stand. He again refused to answer the prosecutor’s questions. At a conference at the bench Mayes’ attorney was permitted to cross-examine Beecham but declined. He explained his reasons in this fashion:

“The position that I am in, at this time, is that if I ask the question I am certainly damned; if I don’t ask the question then I create some sort of inference in the jurors’ minds and I don’t know what that inference is.
“But as the defense lawyer in this situation I prefer not to ask Mr. Beecham any further questions. First of all, I don’t know what the answer would be and secondly, if I get any response whatsoever I am tying the noose very tightly around my client’s neck and therefore I prefer not to ask any questions.”
The Court: “okay.”

Officer John Spellman was recalled as a witness for the Commonwealth. The relevant part of his testimony follows:

“Q. Did he (Beecham) give a statement to you inconsistent with the answer he just gave to this court as to him not being present at the Duncan Service Station on the morning of August 1st?
A. He did.
Q. Would you tell us what he stated to you?
A. Beecham stated: T was with him (Mayes) at the Duncan Standard Service Station but he, meaning defendant Curtis Mayes, did the killing.’ ”

This court is of the view that counsel for Mayes misconstrues the holding in Jett, supra. In Jett, this court stated:

“The result is that an out-of-court statement made by any person who appears as a witness, which statement is material and relevant to the issues of the case, may be received as substantive evidence through the testimony of another witness, and need not be limited to impeachment purposes. CR 43.07 therefore does not apply, though we are of the further opinion that the same type of foundation must be laid as required by CR 43.08 in order that the witness whose testimony is to be contradicted, supplemented, or otherwise affected by the out-of-court statement may have a proper and timely opportunity to give his version or explanation of it. The same rule shall apply regardless of whether the witness whose out-of-court statement is to be proved appears as a witness for the party who intends to prove it or as a witness for the adversary party.” Jett, supra, at page 792.

Mayes was afforded an opportunity to cross-examine Beecham, but waived the exercise of that right. Officer Spellman was also a witness and was subjected to cross-examination. Therefore, Mayes was not denied the right of confrontation. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The testimony of Officer Spellman was within the scope of the Jett rule and was properly admitted.

Mayes’ final argument pertains to the admission of his taped confession. He alleges that the statement admitting his participation in the crimes was involuntary and obtained by physical coercion. Prior to trial a suppression hearing was held in chambers at which Officer Spellman and Mayes testified. Spellman testified that he advised Mayes of his rights under Miranda, supra, but that at no time did Mayes request an attorney. He testified also that Mayes was cooperative and voluntarily signed a waiver of rights before his statement was recorded.

Mayes’ version of the interrogation painted a picture of relentless brutality. He asserts that he made the statement because the officers beat him. However, the confession is stated in clear, concise and in uninterrupted terms. The statement refutes Mayes’ claims of brutality. His actions before and after the statement was made are inconsistent with his conduct in assisting the officers in their search for the truth. The trial court found Mayes’ confession to be voluntary on the basis of the entire proceedings at trial. This court cannot call his findings clearly erroneous. Allee v. Commonwealth, Ky., 454 S.W.2d 336 (1970); Hayden v. Commonwealth, Ky., 563 S.W.2d 720 (Decided this date).

The judgment is affirmed.

All concur.

      . Miranda v. Arizona, 384 U.S. 346, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Commonwealth presented in evidence a frame from a sequence of film taken by a hidden surveillance camera at the jewelry store. This frame showed two black males standing at the “showcase.” They were dressed in clothes similar to the clothes found at the home of Mayes. Mayes identified the “blown-up” photograph as being that of him and his cousin Beecham.

      . Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Sharp v. Commonwealth, Ky., 559 S.W.2d 727 (1977).


text:
    KENTUCKY FRIED CHICKEN OF BOWLING GREEN, INC., Appellant, v. Harland SANDERS, Courier-Journal & Louisville Times, Inc., Dan Kauffman and KFC Corporation, Appellees.
    Supreme Court of Kentucky.
    March 14, 1978.
    F. Thomas Conway, Louisville, for appellant.
    Marshall P. Eldred, Stephen R. Schmidt, Brown, Todd & Heyburn, Louisville, for appellee, Harland Sanders.
    Edgar A. Zingman, Jon L. Fleischaker, Wyatt, Grafton & Sloss, Louisville, for ap-pellees, Courier-Journal and Louisville Times, Inc. and Dan Kauffman.
    William O. Guethlein, William P. Swain, Louisville, for appellee, KFC Corp.
   PER CURIAM.

Appellant sought damages from appellees for libel and defamation growing out of statements made by Colonel Harland Sanders and published in the Courier-Journal. The complaint was dismissed for failure to state a claim upon which relief could be granted.

Colonel Sanders was interviewed by Courier-Journal staff writer Dan Kauffman on the subject, “Is a chicken wing white meat?” The portion of the article on which appellant based its suit was as follows:

“And while he was on the subject of something Kentucky Fried Chicken should do differently, the Colonel thought of a few other things.
“The stuff on the mashed potatoes, for instance.
“ ‘My God, that gravy is horrible. They buy tap water for 15 to 20 cents a thousand gallons and then they mix it with flour and starch and end up with pure wallpaper paste. And I know wallpaper paste, by God, because I’ve seen my mother make it.’
“To the ‘wallpaper paste’ they add some ‘sludge and sell it for 65 or 75 cents a pint. There’s no nutrition in it and they ought not to be allowed to sell it.’
“And another thing. That new ‘crispy recipe is nothing in the world but a damn fried doughball stuck on some chicken.’ ”

This statement, in the context of the whole article, makes it plain that the Colonel did not have the Kentucky Fried Chicken of Bowling Green, Inc. or any other particular restaurant in mind. He was discussing Kentucky Fried Chicken generally. To defame a class, the statement must be applicable to every member of the class, and if the words used contain no reflection upon any particular individual, no averment can make them defamatory. See Louisville Times Co. v. Emrich, 252 Ky. 210, 66 S.W.2d 73 (1933). And as the size of the class increases it becomes more and more difficult for one to show that he was the one at whom the statement was directed. See Louisville Times v. Stivers, 252 Ky. 843, 68 S.W.2d 411 (1934). There are more than 5,000 outlets selling Kentucky Fried Chicken products around the world, and there was nothing in the present article which identified the Bowling Green restaurant as the object of the remarks.

Appellant also contends it was error to dismiss the complaint because Colonel Sanders made a statement published in a local Bowling Green newspaper, the pertinent part of which was: “Sanders claims the new operators of Kentucky Fried Chicken Corp., a wholly-owned subsidiary of Heublin, Inc., are serving chicken which is not prepared exactly according to his original recipe.” Again there was no direct reference to Kentucky Fried Chicken of Bowling Green, Inc. Moreover, the assertion that the chicken served by Kentucky Fried Chicken Corp. was not prepared exactly according to Sanders’ original recipe was not defamatory. It is almost inevitable that at least slight deviations would occur. Indeed, prospective customers would expect that.

The judgment is .affirmed.

All concur.