author: DROWOTA, Judge.

text:
    AFRICAN TRADING INTERNATIONAL, INC., Plaintiff-Appellee, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 23, 1979.
    Certiorari Denied by Supreme Court July 2, 1979.

      Patrick A. Ruth, Grace Y. Maddin, Cowan & Bird, Nashville, for defendant-appellant.
    J. Greer Cummings, Jr., Boult, Cummings, Conners & Berry, Nashville, for plaintiff-appellee.
   OPINION

DROWOTA, Judge.

Defendant-Appellant Fireman’s Fund Insurance Company brings this appeal from an adverse decision of the Chancery Court wherein the Chancellor reformed an insurance policy between defendant and plaintiff, African Trading International, and granted plaintiff recovery under the policy as reformed. The issues presented are whether the Chancellor committed error in reforming the insurance contract to cover the loss upon which plaintiff claims and whether W. R. Zanes & Co. of Louisiana, Inc., not a party to this cause, was the agent of defendant insurance company when it made certain representations regarding the coverage of the insurance policy here at issue and when it designated plaintiff as loss payee under a marine open cargo insurance policy in effect between Zanes as insured and defendant as insurer.

African Trading International, a Tennessee corporation, maintains, its principal place of business in Nashville and is engaged in the business of exporting goods to Africa. Mr. Percy Cohen is the secretary of African Trading and Mr. Maurice Amekuji is its president. In the fall of 1976 Mr. Cohen spoke with a Mr. Corcorran of the above mentioned W. R. Zanes & Co. in regard to the exporting of eight bales of used rags and three bales of used shoes from Nashville, Tennessee, to Lome, Togo. This shipment was plaintiff’s first exporting transaction, a fact of which it appears Mr. Corcorran was aware. Mr. Cohen and Mr. Corcorran agreed after several conversations that Zanes would act as freight forwarder for African Trading, effecting the export of the rags and shoes. Mr. Cohen was to arrange transportation of the goods from Nashville to New Orleans and Zanes would select a ship, arrange for the contract of affreightment and loading of the goods, and prepare all the necessary documentation. In addition Zanes issued to plaintiff a certificate of coverage on an open cargo marine insurance policy in effect between defendant and Zanes naming African Trading as the loss payee. Coverage was for 10,000 dollars. The goods were duly loaded on the ship “Delta Uruguay” of the Delta Steamship Lines, Inc., and on December 6, 1976, the ship departed for Africa. Mr. Cohen received the certificate of insurance eight days after the ship sailed.

On arrival of the “Delta Uruguay” in Lome, Mr. Amekuji discovered that certain of the bales were missing and that some items had been removed from the other bales. The record does not explain the cause of the shortage though it is assumed by both parties that pilferage was to blame. Mr. Amekuji notified Mr. Cohen of the loss and Mr. Cohen then made a claim against defendant insurance company. Defendant insurer declined liability on the basis of a provision in the policy which made coverage F.P.A.E.C., a marine industry term meaning free from particular average, English condition.

The perils clause of this policy provides in relevant part:

Manufactured Commodities are insured against all risks of physical loss or damage from any external cause, irrespective of percentage, including theft, pilferage and/or non-delivery but . . . subject to the exclusions enumerated below.
used or reconditioned merchandise [is] warranted free from Particular Average unless the vessel be stranded, sunk, burnt, on fire or in collision, including theft or non-delivery of an entire shipping package.

In addition, the phrase “Coverage F.P.A.E. C.” is conspicuously typed on the face of the policy.

The phrase “free from Particular Average, English condition” is well defined and understood in maritime law and practice.

An average is a partial, as opposed to a total loss. A general average is that sort of partial loss which is incurred when some of the values at risk in the marine adventure are sacrificed to save the remainder from peril . . An average which is not “general” — a partial loss, that is to say, which falls on the owner of the goods alone and is not partly compensated by general average contribution — is a particular average, (emphasis in original)

Gilmore & Black, Law of Admiralty, § 2-12 at 80 (2nd ed. 1975). The general exclusion from coverage of particular average is then modified by the addition of the words “English condition” to include particular average if the vessel be stranded, sunk, or burnt, or in a collision. Gilmore & Black, supra, at 82. Thus the policy at issue, with the F.P.A.E.C. term given effect, covers any total loss from the described perils, any general average and any particular average if the vessel meets with one of the misfortunes listed above. The defendant denied coverage then because plaintiff’s loss was a partial loss, not suffered under general average circumstances and not associated with the stranding, sinking, burning or colliding of the ship. Plaintiff asks us to invalidate the F.P.A.E.C. term either by estoppel or reformation and thereby transform the policy into one which covers virtually all partial losses including the one suffered by plaintiff. It can be seen from what has been said that the plaintiff asks us to effect a tremendous expansion of the coverage of the policy. The basis for plaintiff’s request is found in the conversations between plaintiff’s Mr. Cohen and Mr. Cor-corran of Zanes, Inc.

It appears that the subject of insurance was discussed twice by Mr. Corcorran and Mr. Cohen. Mr. Corcorran recommended that plaintiff purchase insurance for the shipment, and in particular he recommended plaintiff procure “full coverage.” Mr. Corcorran testified that he explained to Mr. Cohen that partial losses would generally not be covered unless one of the perils enumerated above should befall the ship. He did not recall, however mentioning the phrase F.P.A.E.C. or particular average. Mr. Cohen testified that he was told only that he was receiving full coverage without mention of the term at issue here. In a subsequent conversation Mr. Corcorran advised Mr. Cohen that Zanes could procure insurance and that it was unnecessary for African Trading to insure the shipment through its local insurance agent.

African Trading paid the the insurance premium of $37.75 and an insurance application fee of $2.50 to Zanes who paid it on to Fireman’s Fund less a 10% commission. Zanes then issued plaintiff the insurance certificate on a printed form supplied by Fireman’s Fund with Zanes appearing as named assured and plaintiff as loss payee.

After hearing testimony from Mr. Cohen, Mr. Amekuji and Mr. Corcorran the Chancellor held that Zanes'' was acting as the agent of Fireman’s Fund when it procured insurance for plaintiff’s shipment and that because of Mr. Corcorran’s representation to Mr. Cohen that the policy provided full coverage the phrase “Coverage F.P.A.E.C.” typed on the face of the policy should not bar plaintiff’s recovery on the policy. Judgment was entered for the plaintiff in the amount of $4,082.89.

Defendant brought this appeal asserting as error the Chancellor’s finding that Zanes was the agent of defendant and the Chancellor’s refusal to enforce the F.P.A.E.C. term. Plaintiff responds that the record supports a finding of agency and that the F.P.A.E.C. term was properly voided on either a reformation or an estoppel theory. We conclude that the F.P.A.E.C. term should have been enforced and therefore we do not reach the agency question.

It is an established principle of insurance law in Tennessee that a contract of insurance cannot be created by waiver or estoppel. Nor can these principles operate to broaden the coverage of an existing contract to include risks not originally contracted for. Dallas Glass of Hendersonville, Inc. v. Bituminous Fire & Marine Ins. Co., 544 S.W.2d 351 (Tenn.1976); Bituminous Fire & Marine Ins. Co. v. Izzy Rosen’s Inc., 493 F.2d 257 (6th Cir. 1974); Hardison Seed Co. v. Continental Cas. Co., 56 Tenn.App. 644, 410 S.W.2d 729 (1966). In this Tennessee is in line with the majority of jurisdictions in the United States. See 1 A.L.R.3d 1139. The principle underlying this restriction in the use of estoppel or waiver is that the insurer should not be liable for coverage for which it has received no consideration.

Assuming without deciding that Zanes was the agent of the defendant it is evident that estoppel or waiver cannot support invalidation of the F.P.A.E.C. term in the contract before us. To eliminate the F.P.A.E.C. term would be to radically extend the coverage of this policy, in effect to write a new policy providing for greater coverage than was originally undertaken by the defendant. Support for this conclusion is found in the uncontradicted testimony of Mr. Corcorran, a man with 30 years experience in the export business, that plaintiff could not have procured for a shipment of this type a policy with the kind of coverage which plaintiff now asks us to create. Such a policy would be commercially unavailable.

We do not find a different result is required by Dallas Glass of Hendersonville, Inc. v. Bituminous Fire & Marine Ins. Co., supra. That case turned expressly on the waiver of a limitation of coverage. The Court there foünd that the insurer, through its agents, had by virtue of a course of dealing spanning several years waived a 500 mile limitation on a cargo insurance policy. Under those circumstances the Court concluded it was not creating a néw contract by invalidating the limitation but merely enforcing the contract in a manner consonant with the understanding of the parties. Moreover, in that case the coverage without the mileage limitation was commercially available, albeit at a higher premium.

Similarly, we think it inappropriate to reform this insurance policy to exclude the F.P.A.E.C. term. Under Tennessee law a contract of insurance may be reformed only upon clear and cogent evidence of fraud or of a mutual mistake in the drafting of the policy which renders the terms of the policy different from those agreed upon by the parties. Bituminous Fire & Marine Ins. Co. v. Izzy Rosen’s Inc., 493 F.2d 257 (6th Cir. 1974); McMillan v. Great Southern Corp., 63 Tenn.App. 732, 480 S.W.2d 152 (1972). There is no suggestion of fraud in this case. Rather, plaintiff argues that there was a mutual mistake in that the parties intended “full coverage” but the contract fails to reflect that intention. We consider the following statement from Hardison Seed Co. v. Continental Casualty Co., supra, to be dispositive of plaintiff’s argument:

. a court of equity will not reform a policy except upon clear, cogent and convincing evidence of both the mistake and of the antecedent agreement with respect to which the mistake was made. [citations omitted] This, of course, implies there must have been an antecedent agreement that was not incorporated in the written instrument to be reformed and that a mistake was made in the integration of the formal contract, and not with respect to the treatying between the parties during which their minds were meeting on the contract’s contents.

410 S.W.2d at 732.

It is evident from the description of the conversations between Mr. Corcorran and Mr. Cohen that, assuming Zanes was the agent of defendant, the parties never agreed that the policy would cover a loss such as occurred in this case. Mr. Corcor-ran testified that he meant by full coverage precisely what this contract provides, that he could not have meant anything more because broader coverage on this shipment was unavailable. Plaintiff stated in oral argument that Mr. Cohen understood “full coverage” to signify virtually an all risks policy. Clearly there is no antecedent agreement to which the policy may be reformed.

Concluding that neither estoppel nor reformation should operate to deny force to the F.P.A.E.C. term in this policy, even if Zanes was the agent of defendant, we overrule the Chancellor’s decree and enter judgment for the defendant Fireman’s Fund Insurance Co.

Reversed and rendered.

TODD and LEWIS, JJ., concur.


source: Caselaw Access Project

author: FRANKS, Judge.

license: Public Domain

text:
    The MAGNAVOX COMPANY OF TENNESSEE, Appellee, v. BOLES & HITE CONSTRUCTION COMPANY et al., etc., Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    March 6, 1979.
    Certiorari Denied by Supreme Court June 11, 1979.
    John A. Armstrong, Jerry W. Laughlin, H. R. Silvers and of counsel, Silvers, Randall & Laughlin, P. C., Greeneville, for Boles & Hite Const. Co.
    S. J. Milligan, Greeneville and of counsel, Milligan, Coleman, Fletcher, Gaby & Kil-day, Greeneville, for appellee, The Magna-vox Co. of Tennessee.
   OPINION

FRANKS, Judge.

Appellant, Boles & Hite Construction Company, filed a motion in the trial court pursuant to T.R.C.P., Rule 60.02, to set aside a judgment which it had paid. Subsequently, appellant filed an answer and, upon consideration of the motion, the Chancellor overruled the motion and struck the answer. Appellant has appealed the denial of relief.

Following the accidental death of an employee of appellant’s sub-contractor in 1967, a wrongful death action was filed against appellee and the Johnson City Power Board whereupon Magnavox, on February 20, 1969, brought this suit against appellant and others alleging, inter alia, that appellant had contracted to indemnify Magnavox for that exposure. Appellant filed a demurrer on March 28, 1969 and, on June 22, 1971, the Chancellor, by order, continued any consideration of the case pending the disposition of the wrongful death action. Following an award of damages against Magnavox in the wrongful death action, Magnavox, on January 23, 1973, filed an amended and supplemental complaint, setting forth the circumstances and the amount claimed under its contract with appellant. On June 11, 1973, appellant filed a motion to dismiss, followed on June 15, by appellee’s motion for summary judgment. On July 28, 1973, the Chancellor, treating appellant’s motion to dismiss as a motion for summary judgment, sustained the motion, denied Magnavox’s motion for summary judgment and dismissed the suit. Mag-navox appealed the dismissal to this court and the western section, speaking through Judge Nearn, reversed the Chancellor and held, in part:

It therefore results that the decree below is reversed. We hold that under the terms of the contract between Boles & Hite Construction Company and Magna-vox, the complainant Magnavox is entitled to indemnification from the defendant Boles & Hite Construction Company and summary judgment on that issue should have been entered in the favor of Magnavox. An order to such effect may be entered in this Court and the cause will be remanded to the Chancery Court of Greene County for determination of the remaining issues not yet decided and such other necessary proceedings not inconsistent with this Opinion. The Magnavox Co. of Tennessee v. Boles & Hite Construction Co., et a 1, Ct.App., W.S., filed February 26, 1974; cert. denied May 6, 1974.

On July 30, 1974, the Chancellor, in response to that opinion, entered an order which concluded:

[I]t is my opinion, and so ordered, that the plaintiff is entitled to indemnification for all sums paid by it pursuant to the contract, as interpreted by the Court of Appeals, which includes costs, attorney fees, and interest.

Following that order, a “judgment” was entered on August 7, 1974, which decreed:

That the Magnavox Company of Tennessee have and recover of Boles & Hite Construction Company, a partnership composed of Thomas D. Boles and Paul Hite, the sum of Ninety-five Thousand Eight Hundred Thirty-One Dollars and Thirty-Three Cents ($95,831.33), together with the costs of this cause incident to the claim of the plaintiff against the defendant, Boles & Hite Construction Com.pany, for the collection of which, execution is awarded.
All matters not hereinbefore adjudicated are hereby reserved.

The form of the order was expressly approved by the attorneys for Magnavox and the attorney for Boles & Hite. The judgment was satisfied and the next action relating to the judgment was the filing of the motion, supra, on December 2, 1977.

The motion relies on grounds 60.02(3) and (5) of T.R.C.P., and, after establishing the chronological events, asserts while the court of appeals determined the contract provided for indemnification, the opinion did not dispose of other issues, i. e., set-off, counterclaim and affirmative defense, which appellant had raised in its demurrer or motion to dismiss. Having been denied a hearing on these issues, the motion asserts the judgment should be vacated and the moneys returned and a hearing on the ultimate merits be held.

The Chancellor, in a memorandum denying the motion, concluded that the entry of the judgment was mandated by the court of appeals’ opinion and all the grounds raised in the motion to set aside the judgment were either known to appellant prior to the court’s dismissal of Magnavox’s complaint or during the various stages of the proceeding prior to the entry of the judgment.

Appellant’s assignments of error are directed to the August, 1974 judgment and the procedures followed and orders made prior to the judgment.

Rule 60.02 states in pertinent part as follows:

60.02. Mistakes — Inadvertence—Excusable neglect — Fraud, etc. — On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken.

Appellant’s reliance upon sub-section (3) is misplaced. It is clear that voidness of the judgment is wholly inapplicable to this case. Wright & Miller, discussing the federal rule provision which parallels our rule, state: “A judgment is not void merely because it is erroneous. It is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” 11 Wright & Miller, Federal Practice and Procedure, § 2862; see also State ex rel. Dawson v. Bowmar, 209 Tenn. 567, 354 S.W.2d 763 (1962), cert. denied 370 U.S. 962, 82 S.Ct. 1620, 8 L.Ed.2d 829.

While the motion alleges lack of jurisdiction, no basis for that assertion is apparent on the face of the judgment, Dawson, supra, nor is a basis established in the record before us. It is beyond dispute that the chancery court did have jurisdiction over the subject matter of this suit.

Appellant asserts due process requirements were not followed in the case but the substance of its argument is the judgment entered by the Chancellor was legally erroneous. As noted, supra, this ground does not fall within the scope of 60.02(3).

The other section relied upon in the motion is 60.02(5), i. e., “any other reason justifying relief from the operation of the judgment.” The factual circumstances under consideration are more accurately described by sub-section (1), “mistake, inadvertence, surprise or excusable neglect.” The alleged defectiveness of the judgment was apparent to the appellant at the time of judgment and, as we understand the motion for relief, all grounds raised therein could have been raised in 1974. As Wright & Miller suggest:

The broad power granted by [the F.R. C.P. parallel to 60.02(5)] is not for the purpose of relieving a party from free, calculated, and deliberate choices he has made. A party remains under a duty to take legal steps to protect his own interests. 11 Wright & Miller, supra, § 2864.

Defendant is actually asserting its own failure to raise any objection to the judgment at the time of entry. On this characterization we hold appellant’s motion was not timely filed because 60.02(1) motions must be brought within one year from the entry of the assailed judgment. Assuming arguendo the propriety of the motion under sub-section (5), it is untimely because it was not brought within reasonable time from the entry of the judgment, as required by the rule. Our search of the record reveals neither excuse nor explanation for appellant’s delay of more than three years in requesting relief.

Federal cases have interpreted the “reasonable time” requirement of F.R.C.P., 60. Where no explanation was given for the delay and movant was aware of the ground for the motion during the entire interval, a motion filed 13 months after entry of judgment was held unreasonable. Friedman v. Wilson Freight Forwarding Co., 320 F.2d 244 (3rd Cir., 1963). Also see Morgan v. Southern Farm Bureau Cas. Co., 42 F.R.D. 25 (W.D.La.1967); James Blackstone Memorial Assn. v. Gulf, Mobile & U. R.R. Co., 28 F.R.D. 385 (D.C.Conn.1961), and Neagle v. Brooks, 203 Kan. 323, 454 P.2d 544 (Kan.1969).

We note, however, when circumstances justify a long delay will not be considered unreasonable. See In re Cremidas’ Estate, 14 F.R.D. 15 (D.Alas.1953), wherein a 3-year delay in filing the motion was justified because of movant’s financial inability to obtain counsel and lack of attorneys in Nome, Alaska. Accord: Pierce Oil Co. v. U. S., 9 F.R.D. 619 (E.D.Va.1949).

We conclude appellant’s failure to give any reasonable explanation for the delay of over three years in making its motion, based upon circumstances known to appellant at the time of the entry and payment of judgment in 1974, is an unreasonable delay in proceeding under Rule 60, and the motion was properly denied by the trial judge.

The decision of the trial court is affirmed and costs incident to this appeal are assessed against appellant.

PARROTT, P. J., and GODDARD, J., concur.


author: DENTON, Justice.

text:
    William C. WELSCH, Petitioner, v. Mary Dale GERHARDT, Respondent.
    No. B-7865.
    Supreme Court of Texas.
    April 25, 1979.
    Nicholas & Barrera, Dan A. Naranjo, San Antonio, Gary Pinnell, Austin,, for petitioner.
    James R. Bass and John G. McGarr, Jr., San Antonio, for respondent.
   DENTON, Justice.

Mary Dale Gerhardt filed suit against William C. Welsch for a partition of her former husband’s military retirement benefits. The trial court sustained Welsch’s plea in bar and dismissed Gerhardt’s suit. The court of civil appeals reversed the trial court’s judgment and remanded the cause for a trial on the merits. 568 S.W.2d 873. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

On October 30,1970 Gerhardt and Welsch were divorced in the State of Washington where he was then stationed in the military service. The Washington divorce decree adopted and approved a property settlement agreement executed by the parties. Neither the property settlement agreement nor the divorce decree mentioned the military retirement benefits involved in this litigation. Welsch entered the Air Force in 1954. Two years later he and Gerhardt were married in Texas. On the date of the Washington divorce decree in 1970 Welsch had been a member of the armed service for 18 years, having served more than 14 years while married to Gerhardt. Welsch retired from the service on November 1, 1972 and received his first retirement check on November 30, 1972.

At the time of the property settlement and divorce decree in 1970, the exact nature of the military retirement benefits had not been determined by the courts of Washington. Note, Community Property — Deferred Compensation: Disposition of Military Retirement Pay upon Dissolution of Marriage, 50 Wash.L.Rev. 506 (1975). Some Washington decisions had implied that the benefits were community property. See e. g., Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966) and Edwards v. Edwards, 74 Wash.2d 286, 444 P.2d 703 (1968). Other decisions treated military retirement benefits as only being an “income resource” to be taken into account when fixing alimony and child support. Roach v. Roach, 72 Wash.2d 144, 432 P.2d 579 (1967); see also, Mose v. Mose, 4 Wash.App. 204, 480 P.2d 517 (1971); and Payne v. Payne, 7 Wash.App. 338, 498 P.2d 882 (1972). It was not until Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736 (1973) that the Supreme Court of Washington finally decided that military retirement benefits are community property subject to division upon dissolution of a marriage.

All parties agree that the Washington Court had jurisdiction to grant the divorce action and that under applicable Washington statutes it was the duty of that court to make a division of the property, both community and separate, of the parties. R.C.W. 26.09.080 (1973). It is also settled that under the full faith and credit clause of the United States Constitution (U.S.C.A. art. IV, § 1) and the statute implementing that constitutional provision, Texas courts must give to the Washington decree that faith and credit which would be accorded to it by the courts of that State. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). The question which this Court must decide is whether under Washington law Gerhardt presently has a cause of action to partition the undivided military retirement benefits now being received by Welsch. We hold that under Washington law as it now exists this question must be answered in the negative.

The court in In re Marriage of Hagy, 20 Wash.App. 642, 581 P.2d 598 (1978) is the first Washington court to consider whether the rule that retirement benefits are community property should be applied retroactively. The original divorce court in Hagy, as did the court in the divorce here in question, failed to divide the retirement benefits. The court in Hagy first noted that the property settlement’s failure to include the benefits was consistent with the law as it was understood in 1970. The court then held:

To give retroactive effect to the decisions in the post-1970 cases so as to allow the maintenance of a partition suit would work an injustice. There are undoubtedly a multitude of cases, finalized prior to the Payne decision, in which the parties failed to list contingent pension rights among community assets. These factors, coupled with the difficulty of foreseeing in 1970 the coming developments in the law, support our view that Payne and its progeny should not be utilized as a wedge to reopen prior decrees entered in good faith according to the then existing law.

At approximately the same time Hagy was decided, another Washington court reached the identical conclusion in Martin v. Martin, 20 Wash.App. 686, 581 P.2d 1085 (1978). In Martin the court held that public policy demanded that pre-Payne divorces should be final:

This policy interest would be greatly undermined if we were to create the potential for a reexamination of every military divorce prior to Payne. Such a result would be both unwise and unnecessary. Where both the existence of the pension was disclosed to the trial courts prior to Payne we feel certain it was directly or indirectly [court’s emphasis] taken into account, as in this case [citing authority]. Where the existence of the pension was not disclosed, the parties must be conclusively presumed to have relied upon the pre-Payne understanding that military pensions were not property to be disposed of by the divorce court. The parties ought to be bound to the rules as they were generally understood at the time of the divorce. We, therefore, hold that Payne v. Payne should not be given a retroactive effect.

There is nothing in the record here to indicate whether the military retirement benefits were considered. However, it is clear that the court in Martin holds that property settlements will not be reopened even if the benefits were not considered at the time of the divorce.

The most recent Washington decision follows this same rule. In Myser v. Myser, 21 Wash.App. 925, 589 P.2d 277 (1979), the court also refused to give Payne a retroactive effect. The facts in Myser are quite similar to the facts in the case at hand. The Washington Court affirmed the dismissal of Mrs. Myser’s suit to partition the undivided military benefits based upon the reasoning of Martin and Hagy. Gerhardt has not cited, nor has this Court found, any Washington decision that permits a retroactive application of the Payne decision. It is therefore apparent that the current Washington law forbids the retroactive application of Payne v. Payne, supra, and that Gerhardt has no cause of action for a partition of these retirement benefits.

We, therefore, reverse the judgment of the court of civil appeals and affirm the trial court’s judgment.

      . All emphases herein are added unless otherwise indicated.


author: PER CURIAM.

text:
    Azucena F. HENSLEY et al., Petitioners, v. Salvador SALINAS et al., Respondents.
    No. B-8372.
    Supreme Court of Texas.
    June 27, 1979.
    Pena, McDonald, Prestía & Zipp, Ronald D. Zipp, Edinburg, for petitioners.
    Kelley, Looney & Alexander, Mitchell 0. Sawyer, Edinburg, Emilio F. Gutierrez, Laredo, Pope & Pope, John A. Pope, Frank R. Nye, Jr., Rio Grande City, Ewers, Toot-haker, Ewers, Abbott, Talbot, Hamilton & Jarvis, O. C. Hamilton, Jr. and Ricardo Hi-nojosa, McAllen, for respondents.
   PER CURIAM.

This lawsuit originated as a trespass-to-try title suit to a certain 1452.6-acre tract located in Starr County. An agreed judgment was entered in the trial court which purports to represent a compromise between all of the plaintiffs of record and eight of the defendants of record. A default judgment was entered against the other eleven defendants. The agreed judgment which was entered on March 8, 1978, recites that all of the plaintiffs appeared “by and through their attorney of record” and that all approved of the settlement “as to form and substance.” The agreed judgment was signed by the attorneys of record.

Azucena Hensley was one of these plaintiffs in the trial court. As soon as she heard about the agreed judgment, she wrote and informed the trial court that she was not previously informed of the terms of the judgment, and “completely rejected” the settlement. Hensley also by this letter, filed March 15, 1978, formally requested a new trial.

On March 27,1978, Hensley, now assisted by new legal counsel, filed an Amended Motion for New Trial. Accompanying this motion was a letter requesting a hearing “as soon as possible.” Also attached to this motion was an affidavit by Hensley in which she stated under oath that she was not consulted prior to the entry of the agreed judgment, and that its terms were completely unacceptable to her.

The trial court set the matter for a hearing on at least two different occasions. On each occasion, Mrs. Hensley made the trip from her home in Cameron, Milam County, Texas, to Rio Grande City, Starr County, Texas, a distance of over three hundred and fifty miles, only to find that for some reason the hearing had been postponed.

On April 18, 1978, and then again on April 28, 1978, Hensley, by letter confirming earlier phone calls, requested the trial court to make a definite setting. On May 12, 1978, Hensley’s Motion for New Trial was overruled by operation of law before a hearing was held. The trial court severed this action, and Hensley perfected her appeal.

The Court of Civil Appeals sitting in Waco affirmed the agreed judgment of the trial court. 577 S.W.2d 383. While recognizing the general rule that a final judgment cannot be rendered on a settlement agreement if the consent of one of the parties is lacking, the Court of Civil Appeals held that Hensley had no evidence in the record to support her claim that she did not consent. We reverse the judgment of the Court of Civil Appeals and remand this case to the trial court for a hearing upon Hensley’s Motion for New Trial.

It is not disputed that a final judgment based upon a settlement agreement can only be rendered if all parties consent. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). However, in the present case Hensley was prevented from offering evidence to support her rejection of the settlement by the failure of the trial judge to hold a hearing.

This Court stated in The University of Texas v. Morris, 163 Tex. 130, 352 S.W.2d 947 (1962):

“In our opinion the proper meaning of the word ‘present’ as used in Rule 329b is no more than the movant must call the motion to the court’s attention and ask for a ruling upon the same or face the possibility that the court will not act and allow the motion to be overruled by operation of law. As to whether the court will hear the movant or his motion is a matter within the discretion of the trial court when it presents solely a question of law.” (Emphasis added.)

Necessarily, when a motion presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence when the Motion for New Trial alleges facts, which if true, would entitle the movant to a new trial and when a hearing for such purpose is properly requested.

As stated above, on at least three different occasions Hensley requested a hearing to present her evidence; yet the trial court failed to afford her that opportunity. We further approved in The University of Texas v. Morris, supra, the following statement:

“ . . . ‘When an attorney for the party appealing files his motion or amended motion for new trial and calls it to the attention of the trial court, and informs him that he is ready to present it for the court’s action, he has done about all that he can do. . . .

It therefore follows that Hensley should not be denied her right to have her case considered upon appeal simply because she was denied her chance to introduce evidence in her own behalf.

We regard this decision to be in conflict with The University of Texas v. Morris, supra. Accordingly, the writ of error is granted; and without hearing oral argument, we reverse the judgment of the Court of Civil Appeals and remand the case to the trial court with instructions to conduct a hearing on Hensley’s Motion for New Trial. Tex.R.Civ.P. 483.


text:
    BONDED REALTY, INC., Petitioner, v. The ST. PAUL INSURANCE COMPANY, Respondent.
    No. B-8392.
    Supreme Court of Texas.
    June 27, 1979.
    Collins, Langford & Pine, Robert S. Pine, El Paso, for petitioner.
    Peticolas, Luscombe, Stephens & Windle, W. C. Peticolas and Colbert N. Coldwell, El Paso, for respondent.
   PER CURIAM.

The question on appeal is whether deceptive trade practices are covered under a liability insurance policy which excluded coverage for “dishonesty, intentional fraud, criminal or malicious acts.” The trial court granted summary judgment for the insured. The Court of Civil Appeals has reversed the judgment of the trial court and rendered judgment for St. Paul Insurance Company. It held that deceptive trade practices are “unlawful” and are excluded from coverage under the policy. 578 S.W.2d 191.

We agree with the result reached by the Court of Civil Appeals, but do not agree that all “unlawful” acts are necessarily excluded from coverage under this policy.

Petitioner urges that only those deceptive trade practices found by the jury at the former trial to be knowing or intentional misrepresentations should be excluded from coverage. Though petitioner’s knowledge of the falsity of one of the acts was not established, that act was inseparable from the other acts where knowledge of the falsity was established and was a concurrent cause of the damage sustained. Accordingly, we refuse the writ no reversible error.


author: CLINTON, Judge. TOM G. DAVIS, Judge. CLINTON, Judge,

text:
    Clifton Jerry LANDRY, Appellant, v. The STATE of Texas, Appellee.
    No. 57533.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 11, 1979.
    On Rehearing July 18, 1979.
    Roy Ahrens, Houston, for appellant.
    Carol S. Vance, Dist. Atty. Douglas M. O’Brien, and Donald H. Dawson, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appeal is brought from a conviction of forgery by passing. The jury found that appellant had been twice previously convicted of felonies, and punishment was assessed at life.

The single ground of error presented in appellant’s original brief contends that the trial court erred by admitting evidence of an extraneous offense. Appellant was charged with an act of passing a forged check at a bank drive-through window on September 28, 1976. The State introduced testimony from two bank employees concerning an attempt by appellant to pass a check at the same bank on September 24, 1976.

Susanne Christensen testified that she was working in the bank on September 24th when appellant attempted to cash a check made out to “Santokh Sohal.” She noticed the check because the Sohal account was “being closed” at that time. The instrument was a payroll check from a landscape company. Christensen asked for identification, and appellant produced a social security card in the name of “Melvin Edwards.” She took the check to a bank officer who refused to cash it.

Debbie Kneisel stated that she was also employed at the bank on September 24th. She saw appellant enter the bank that day and pass a check to Susanne Christensen made out to “Mr. Sohal.” Kneisel had received a notice that Sohal’s account was being closed that day. She advised Christensen of that fact, and further advised her to ask for appellant’s identification. Kneis-el saw appellant again on September 28, 1976, when he again attempted to pass a check at the bank.

The State’s evidence showed that on September 28, 1976, appellant presented a check at the bank drive-through window. The instrument was a payroll check from the Sunshine Landscape Co. made payable to Santokh Singh Sohal. Upon request for identification appellant produced a driver’s license issued to “Melvin Edwards.” The tellers called the security officer who attempted to make an arrest, but appellant fled the scene. Appellant was later arrested.

The contention is that the testimony regarding the incident on September 24th was not relevant to any contested issue in the case and its admission violated this Court’s decision in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App. 1972). Albrecht specified six non-exclusive exceptions to the general rule prohibiting the introduction of evidence of extraneous offenses. The State alleges that the evidence was admissible under one of those exceptions described in Albrecht as follows:

“To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself.” Albrecht, supra at 100.

The State argues that it was required to prove knowledge that the instrument was forged and the extraneous transaction was relevant on that issue.

Appellant counters first by saying that knowledge is not required to be proven because of the decision in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1977). That case held that failure to allege in the indictment that the defendant had knowledge that the instrument was forged can not be raised for the first time on appeal. However, we have held subsequently that knowledge must be proved at trial. In Pfleging v. State, 572 S.W.2d 517 (Tex.Cr.App. 1978), we reversed because the evidence was insufficient to show knowledge. Quoting from Baker v. State, 552 S.W.2d 818 (Tex.Cr.App. 1977), we said:

“While the requisite culpable mental state under Section 32.21(b) is ‘intent to defraud or harm,’ we fail to perceive how such culpable mental state can be shown absent proof of knowledge that the instrument is forged.” Pfleging, supra at 519.

See also Lloyd v. State, 574 S.W.2d 159 (Tex.Cr.App. 1978).

Although knowledge must be proven by the State, Albrecht admits another offense when knowledge “cannot be inferred from the act itself.” In Ware v. State, 475 S.W.2d 282 (Tex.Cr.App. 1971), we held:

“The fact that appellant offered the forged check in question, made out in a name other than his own, is sufficient to warrant the jury’s conclusion that he knew the check was a forgery.” Ware, supra at 284.

In this case appellant passed a check made payáble to a name other than his own, and the jury could infer that he had knowledge. The Albrecht case would therefore compel a finding that this extraneous transaction was not admissible on the issue of knowledge.

However, Albrecht includes other exceptions to the general rule, and among those exceptions is the following:

“To show the accused’s motive, particularly where the commission of the [extraneous] offense at bar is part of a continuing plan or scheme of which the crime on trial is also a part.” Albrecht, supra at 100.

The extraneous transaction and the charged offense both involved efforts by appellant to pass payroll checks from a landscape company at the same bank within four days of each other. Each check was made payable to the same person whose account was being closed. In each case appellant produced identification in the name of “Melvin Edwards.” We considered facts that were even less indicative of a common plan in Mendoza v. State, 459 S.W.2d 439, 440 (Tex.Cr.App. 1970), and concluded that “such evidence was admissible ... to show common plan or scheme.” We conclude that the evidence of the extraneous transaction was admissible on that basis.

Ground of error number one is overruled. Appellant has filed four pro se briefs in which • he raised numerous additional grounds of error. None of those briefs were timely filed. However, we have examined each of the grounds raised in the interest of justice. We conclude that two of those contentions raise issues which merit discussion.

The indictment in this cause alleged that appellant passed a forged instrument, and the judgment reflects that the conviction was based on that theory. Appellant correctly points out that the evidence shows that he presented the forged check, but that he received no money for it. He contends, therefore, that the evidence only proves an attempt to pass a forged check and that the proof fatally varies from the indictment.

Appellant relies on several cases decided under the old penal code. In Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App. 1975), we held that when the indictment alleges passing a forged instrument and the evidence shows only an attempt to pass in which no value was received, the proof is insufficient. That decision was based on the former penal code Article 996, Vernon’s Ann.P.C., which defined the offense as either passing or attempting to pass a forged instrument. There are no cases addressing this question under the new code, which provides in V.T.C.A. Penal Code, Sec. 32.-21(a)(1)(B) that forgery includes:

“to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged . . . .”

The question presented is whether the indictment for forgery by passing under the new code required the State to prove that appellant actually received money for the check given to the bank teller.

The term “pass” is nowhere defined in the penal code. As previously noted, the old code delineated between passing and attempting to pass, which implied that passing was a completed act in which consideration was received. The new code does not make that distinction. While this Court has not directly confronted this issue before, we have examined forgery under the new code and determined that it now covers non-monetary and nonproperty injuries. Martinez v. State, 551 S.W.2d 735 (Tex.Cr.App. 1977). See also, Practice Commentary, V.T. C.A. Penal Code, Sec. 32.21. We also note that forgery is found in Chapter 32 of the Penal Code, which is the “Fraud” rather than “Theft” Chapter of the Penal Code. These two facts indicate that the gravamen of the offense of forgery under the new code is the perpetration of a fraud rather than the actual control over the property of another.

In construing the word “pass” we are guided by V.T.C.A. Penal Code, Sec. 1.05, which states that the provisions “shall be construed according to the fair import of their terms.” Determining the “fair import” of terms is frequently a difficult and unavoidably subjective exercise, but we can gain some objective insight by examining how other authorities have defined the word.

Black’s Law Dictionary (4th ed. 1968) defines “pass” as follows:

“To publish; utter; transfer; circulate; impose fraudulently. This is the meaning of the word when the offense is passing counterfeit money or a forged paper spoken of.
‘Pass,’ ‘utter,’ ‘publish,’ and ‘sell’ are in some respects convertible terms, and, in a given case, ‘pass’ may include utter, publish, and sell.”

This definition is supported by the language of Section 32.21(a)(1)(B) which lists various methods of transferring a forged instrument, including to “pass,” followed by “or otherwise utter a writing that is forged . .” (Emphasis added). The language appears to mean that passing is merely one form of uttering a writing. Black’s defines “utter” as: “To put or send (as a forged check) into circulation . To publish or put forth ... To offer To utter, as used in a statute against forgery and counterfeiting, means to offer, whether accepted or not, a forged instrument, with the representation, by words or action, that the same is genuine.” (Emphasis added).

Another useful description is found in 25 Tex.Jur.2d Forgery § 31 (1961), which states, “An instrument is not passed or uttered until it is actually delivered in such a manner as to make possible perpetration of fraud.” The definition uses “passed” and “uttered” synonymously, and seems to emphasize delivery rather than receipt of consideration. Also, 31 A Words and Phrases (1978) states, “Word ‘pass’ when used in connection with negotiable instrument means to deliver, to circulate, to hand from one person to another.” Finally, several federal cases have interpreted passing a forged instrument to mean offering that instrument. United States v. Holmes, 453 F.2d 950 (10 Cir. 1972); United States v. Jenkins, 347 F.2d 345 (4 Cir. 1965); Rader v. United States, 288 F.2d 452 (8 Cir. 1961).

We therefore conclude that “pass” in the forgery statute means to offer the forged instrument, and it does not require a showing that the defendant actually received consideration in exchange for the check. Appellant’s ground of error is overruled.

The next contention is that the indictment in this cause is fundamentally defective. The indictment in pertinent part alleged that appellant:

“did then and there with intent to defraud and harm, intentionally forge, by passing to Sharon Weiler, a writing as follows:
[a copy of the instrument is thereafter attached]
the defendant then and there knowing the writing was forged.”

Appellant argues that the indictment is fundamentally defective for failure to allege “who did not authorize that act” as stated in V.T.C.A. Penal Code, Sec. 32.-21(a)(l)(A)(i).

The starting point for discussing the sufficiency of indictments is American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). We held that a “fundamental” defect occurs only when “the indictment failed to allege the constituent elements of the offense sought to be challenged.” (Emphasis added) Id. at 603. This seemingly simple formula becomes difficult when assessing the “constituent elements” of an offense. If the matter not alleged is required only for purposes of notice or barring a subsequent prosecution, it must be requested in a motion to quash. It is only when the indictment fails to state an offense, and thereby fails to invoke the jurisdiction of the trial court, that the defect may be raised for the first time on appeal. American Plant Food, supra.

There is no precise formula for distinguishing elements from matters of notice. Some guidance is provided by V.T.C.A. Penal Code, Sec. 1.07(a)(13). There are no exceptions that need to be negated in the forgery statute, so subsection (D) is not applicable. As was discussed supra, passing a forged check does not require a completed act in which value is actually received. Therefore, there is no “required result,” and subsection (C) is also inapplicable. The “required culpability” refers to the required mental state. As was also discussed previously, that culpability is intent to defraud, and it requires proof at trial of knowledge that the instrument was forged. The question that remains is what constitutes the “forbidden conduct,” and how specifically must that conduct be alleged in the indictment in order to state an offense.

The forgery statute is constructed in a manner that makes isolating the “forbidden conduct” an exercise in multiple cross references. The offense itself is set out in V.T. C.A. Penal Code, Sec. 32.21(b). It is arguable that the forbidden conduct has been adequately stated to charge an offense by simply alleging that the defendant “forged a writing.” The question of which type of forgery defined in Sec. 32.21(a)(1) is being alleged in the indictment might well be a question of notice, subject to review ■ and upon a proper motion to quash. However, the facts of this case do not force us to reach that question because the indictment went further in its allegation.

Section 32.21(a)(1) creates three basic types of acts that constitute forgery: (1) to create a forged instrument; (2) to utter a forged instrument; and (3) to possess a forged instrument with the intent to utter it. The statute is peculiar in that Sec. 32.21(a)(1)(A) contains both a definition of the first of these three types of acts, creating a forged instrument, and a three part definition of a forged writing that is incorporated by reference in Secs. 32.21(a)(1)(B) and (C). The indictment in this case alleged that appellant did “forge” by passing a writing. That allegation brings appellant’s conduct within the forbidden category of Sec. 32.21(a)(1)(B). The indictment also sets out the writing haec verba, which this Court has consistently held is sufficient to allege that the instrument “purports to be the act of another.” Biering v. State, 159 Tex.Cr.R. 331, 263 S.W.2d 558 (1953); Watts v. State, 143 Tex.Cr.R. 303, 158 S.W.2d 510 (1942); Wisdom v. State, 122 Tex.Cr.R. 271, 54 S.W.2d 533 (1932); Huckaby v. State, 45 Tex.Cr.R. 577, 78 S.W. 942 (1904). It is appellant’s position that unless the indictment goes further to allege “who did not authorize that act,” then the indictment fails to state the forbidden conduct with sufficient specificity as is needed to allege an offense. With this contention we disagree.

It is true that under the former code an indictment had to allege “without lawful authority” or it was “fatally defective.” Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876 (1955). That case was decided prior to American Plant Food, supra.. It was also decided pursuant to the former penal code which listed the various types of forgery in separate statutes. As was previously pointed out, the new forgery statute includes all three types of forgery in one statute, and Sec. 32.21(a)(1)(A) contains both the definition of one of those types of acts as well as a three part definition of what a forged writing is. The question of whether the purported act was authorized is a notice issue relating to which type of forged writing is involved in the case. Therefore, by stating that appellant forged by passing a writing that purported to be the act of another, the indictment sufficiently stated the forbidden act which constitutes an offense. Without an exception as to form contemplated by Article 27.09, Paragraph 2, V.A.C.C.P., the matter of sufficiency of notice as to the “purport” of the forged writing is not presented and may not be raised for the first time on appeal.

Appellant’s ground of error is overruled.

We have reviewed appellant’s other contentions and find them to be without merit. For these reasons the judgment is affirmed.

DALLY, J., dissents.

Before the court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for forgery by passing. V.T.C.A. Penal Code, Sec. 32.21(a)(1)(B) and (b). Punishment, enhanced by two prior felony convictions, was assessed at life. V.T.C.A. Penal Code, Sec. 12.42(d).

On original submission the panel, with one judge dissenting, held that the indictment was not fundamentally defective for failing to allege that the person [whose act the instrument purports to be] “did not authorize that act.” See Sec. 32.-21(a)(l)(A)(i), supra. This holding is contrary to our prior decision in Minix v. State, Tex.Cr.App., 579 S.W.2d 466 (1979).

Sec. 32.21, supra proscribes three modes of committing forgery. The first mode, “making” a forged writing, is contained in Sec. 32.21(a)(1)(A), supra. The second mode, “presenting” a forged writing, is contained in Sec, 32.21(a)(1)(B), supra, and expressly incorporates the definition of a forged writing as one “made” in a manner contained in See. 32.21(a)(1)(A), supra. The third mode, possession with the intent to utter, is contained in Sec. 32.21(a)(1)(C), and expressly incorporates the first two modes as part of the definition of the offense.

In the present case the appellant was indicted for passing a forged writing, an offense included in the second mode of committing forgery. The indictment, omitting the formal parts, alleged that the appellant:

“did then and there with intent to defraud and harm intentionally forge by passing to Sharon Weiler, a writing as follows:”

The writing, a check, was set out in its entirety in the indictment. The names of both the maker and the payee were different from that of the appellant. The jury charge reflects that the applicable manner in which the writing was forged is contained in Sec. 32.21(a)(l)(A)(i), supra, in that the writing purported “to be the act of another who did not authorize that act.” This language was not alleged in the indictment.

In Minix v. State, supra, the defendant was indicted for possession of a forged writing with the intent to utter it, the third mode of committing forgery. The writing that formed the basis of the prosecution, a check, was set out in the indictment. Minix was named as the payee of the check, but a Charles H. Weinbaum was shown as the maker. In Minix, as in the present case, no allegation was made regarding the manner in which the writing was forged as contained in Sec. 32.21(a)(1)(A), supra. Again the record reflects that the applicable provision was that contained in Sec. 32.-21(a)(l)(A)(i), supra.

The State is not required to allege that the forged writing purports to be the act of another if that writing is set out haec verba in the indictment and both the name of the maker and payee are different from the defendant’s name. Ames v. State, Tex.Cr.App., 499 S.W.2d 110. Thus, in the present case we are not concerned with the absence of the language “purports to be the act of another.” Instead we are concerned only with the absence of the remainder of the language contained in Sec. 32.-21(a)(l)(A)(i), supra, “who did not authorize that act.”

In Minix v. State, supra (Opinion on State’s Motion for Rehearing), this Court addressed the identical issue. The Court first observed that the language, “who did not authorize that act,” was the prodigy of the language contained in the prior forgery by “making” statute, Art. 979, V.A.P.C. (1925). Art. 979, supra, required that the act be “without lawful authority.” The Court noted that in Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876, an indictment for forgery by making was rendered fundamentally defective by omission of the language “without lawful authority.” Holding that Smith was “on point,” the Court in Minix held that the indictment was fundamentally defective because of the absence of the allegation “who did not authorize that act.”

The panel decision in the present case concluded that “the question of whether the purported act was authorized is a notice issue relating to which type of forged writing is involved in the case.” We cannot agree.

In order to prove that appellant committed the offense of forgery by passing, the State must show that the appellant with intent to defraud or harm another:

(1) passed
(2) a check
(3) that purported to be the act of another;
(4) and that other person did not authorize that act.

See Sec. 32.21(a)(1)(B), supra. If the State failed to prove the essential element that the other person did not authorize the act, the conviction could not stand. Young v. State, Tex.Cr.App., 529 S.W.2d 542.

The indictment in the present case alleged that appellant passed a check. The check, as set out in the indictment, is sufficient to supply the allegation that the check purported to be the act of another. These acts alone are not sufficient to allege the forgery offense involved here. Unless the appellant was not authorized to act for the person whose act the check purported to be, he committed no forgery offense.'

It is fundamental that an indictment must allege all essential elements of the offense sought to be charged. Holcomb v. State, Tex.Cr.App., 573 S.W.2d 814. This is and has been an elementary rule of law under new and old code cases alike. Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751; Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590; Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266; Selvidge v. State, 126 Tex.Cr.R. 489, 72 S.W.2d 1079. Thus, our holding herein does not, as the dissent suggests, mark a return to old code factual pleading.

The State argues that reliance on Smith is misplaced as Smith is a “making” case with no application in either “presenting” or “possession” cases. The State relies on Brown v. State, 60 Tex.Cr.R. 505, 132 S.W. 789, in support of this position. Brown furnishes no reasoning in support of such a distinction under the current statutory scheme, nor do we perceive any.

We hold the indictment in the present case is fundamentally defective.

The Appellant’s Motion for Rehearing is granted, the judgment is reversed and the prosecution under the present indictment is ordered dismissed.

ONION, P. J., dissents without written opinion.

CLINTON, Judge,

dissenting.

Just as I recanted in my dissenting opinion on appellant’s motion for rehearing in Minix, so here, as the author of the original panel opinion, I do likewise and respectfully dissent.

With deference, may I point out, without reiterating the content of my dissenting opinion in Minix, that what is truly the essential element of the offense is “intent to defraud or harm another.” That culpable mental state is the sine qua non of forgery — whether making, presenting or possessing the false writing. Indeed, the author of the opinion for the Court, writing as a commissioner in Stuebgen v. State, 547 S.W.2d 29, 32 (Tex.Cr.App.1977), succinctly stated the proposition that “the intent to defraud is the gist of the offense” of forgery. If we would but recognize that “intent to defraud” is the essence of every forgery offense and then interpret and construe the phrase according to its obvious intendment, the judgment of conviction in this, as well as what must be scores of other similar cases, would be quite legitimately upheld. See, again, my dissenting opinion in Minix. Simply stated, one who holds the intent to defraud or harm another necessarily knows or has reason to believe that the writing he makes, presents or possesses with that intent purports to be the act of another who did not authorize that act.

Today’s opinion marks a return to old code fact pleading that the new penal code does not sanction. Neither can I. Accordingly, I would overrule the motion for rehearing and affirm the judgment of conviction.

Onion, P. J., dissents without written opinion.

DOUGLAS and W. C. DAVIS, JJ., join.

      . V.T.C.A. Penal Code, Sec. 1.07(a)(13) provides:
      “ ‘Element of offense’ means:
      (A) the forbidden conduct;
      (B) the required culpability;
      (C) any required result; and
      (D) the negation of any exception to the offense.”

      . It provides: “A person commits an offense if he forges a writing with intent to defraud or harm another.”

      . It should be remembered that the standard for review of fundamental error in an indictment is much different from that of reviewing questions of adequate notice. In absence of any request by a defendant, we presume there was no problem of notice, and we are concerned only that the indictment allege the bare essentials needed to state an offense. If the State chooses to indict on such a bare-boned indictment, and a proper motion to quash is filed raising a notice issue, then the standard for review becomes much stricter. The question becomes one of constitutional due process and fundamental fairness. See Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App. 1977).

      . V.T.C.A. Penal Code, Sec. 32.21(a) and (b) provide:
      “(a) For purposes of this section:
      “(1) ‘Forge’ means:
      “(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
      “(i) to be the act of another who did not authorize that act;
      “(ii) to have been executed at a time or place in a numbered sequence other than was in fact the case; or
      “(iii) to be a copy of an original when no such original existed;
      “(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
      “(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.
      “(2) ‘Writing’ includes:
      “(A) printing or any other method of recording information;
      “(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and “(C) symbols of value, right, privilege, or identification.
      “(b) A person commits an offense if he forges a writing with intent to defraud or harm another.”

      . In the interest of brevity and for the purposes of this opinion the first mode of committing forgery as defined in Sec. 32.21(a)(1)(A), supra, will be referred to as making, the second mode, as defined in Sec. 32.21(a)(1)(B), supra, will be referred to as presenting, and the third mode as defined in Sec. 32.21(a)(1)(C), supra, will be referred to as possessing.

      . Repealed, Effective Jan. 1, 1974.

      . Presiding Judge Onion, writing for a unanimous court in Baker v. State, 552 S.W.2d 818 (Tex.Cr.App.1977) quoted the statement approvingly.


author: ONION, Presiding Judge. PHILLIPS, Judge.

text:
    Larry Edwin SCHAFFER, Appellant, v. The STATE of Texas, Appellee.
    No. 57574.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 23, 1979.
    On Rehearing July 18, 1979.

      Jack W. Beech, Fort Worth, for appellant.
    Charles F. Campbell, Jr., Dist. Atty., Hillsboro, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for attempted aggravated sexual abuse of a child, where the punishment was assessed by the court at fifty (50) years following a guilty verdict and in light of the allegation and proof of a prior felony conviction.

The sufficiency of the evidence is not challenged except as to a question of venue which is without merit, but we are confronted at the outset with appellant’s contention that the trial court erred in allowing him to stand trial without a judicial determination that he was competent to stand trial after he had earlier been found incompetent to stand trial by a jury and subsequently committed to Rusk State Hospital.

The record reflects that appellant was originally indicted for the primary offense on April 22, 1976 in Cause No. 26,628 and was later found by the verdict of a jury to be incompetent to stand trial. On May 28, 1976, the trial court ordered the appellant confined in the Rusk State Hospital. On February 1, 1977, Dr. Robert B. Sheldon, Superintendent of said hospital, apparently certified in a letter and final report to the trial court that appellant was then mentally competent to stand trial. No action appears to have been taken on such certification or notification. On March 31, 1977, however, the appellant was reindicted for the same primary offense with an allegation of a prior felony conviction for the enhancement of punishment in Cause No. 26,752. On April 1,1976 the original indictment in Cause No. 26,628 was dismissed. On April 28, 1977, a trial was had upon the second indictment which resulted in a mistrial. The case was again set for May 16, 1977, at which time the trial resulted in the present conviction from which this appeal is taken.

Appellant argues that the notification by the superintendent of a state hospital that a person is competent to stand trial is not a judicial determination. He contends that once a jury determines that a defendant is incompetent to stand trial and the defendant is committed to a state hospital that there should be a judicial determination that he is competent before being forced to trial even though there may be a certification of competency from the superintendent of the state hospital where he may have been confined. He urges that there should be some form of judicial restoration before the trial on the merits.

Article 46.02, V.A.C.C.P., deals with the procedure used when the issue of competency to stand trial is raised. § 5 thereof (Acts 1975, 64th Leg., ch. 415, p. 1095) in effect at the time of appellant’s certification and subsequent trial on the second indictment reads in part as follows:

“Sec. 5. (a) When a defendant has been determined incompetent to stand trial, and unless it is determined there is no substantial probability that the defendant will attain competency to stand trial in the foreseeable future, the court shall enter an order committing the defendant to the maximum security unit of Rusk State Hospital, to the maximum security unit of any other facility designated by the Texas Department of Mental Health and Mental Retardation, to an agency of the United States operating a mental hospital, or to a Veterans Administration hospital for a period not to exceed 12 months and placing him in the custody of the sheriff for transportation to the facility to be confined therein for further examination and treatment toward the specific objective of attaining competency to stand trial. A transcript of all medical testimony received by the jury shall be forthwith prepared by the court reporter and shall accompany the patient to the facility.
“(b) No person shall be committed to a mental health or mental retardation facility under this section except on competent medical or psychiatric testimony.
“(c) * * *
“(d) * * *
“(e) The head of a facility to which a person has been committed pursuant to Subsection (a) of this section shall promptly notify the committing court:
“(1) when he is of the opinion that the defendant has attained competency to stand trial; or
“(2) when he is of the opinion that there is no substantial probability that the defendant will attain the competency to stand trial in the foreseeable future; or
“(3) 14 days prior to the expiration of 12 months following the date of the commitment order.
“(f) On notification to the committing court under Subsection (e) of this section, the sheriff of the county in which the committing court is located shall forthwith transport the defendant to the committing court.
“(g) When the head of a facility to which the defendant is committed discharges the defendant and the defendant is returned to court, a final report shall be filed with the court documenting the applicable reason therefor under Subsection (e) of this section, and the court shall furnish copies to the defense counsel and the prosecuting attorney. If the defendant has no counsel and the court determines that the defendant is indigent, the court shall appoint counsel to represent him. When the report is filed with the court, the court is authorized to make a determination based solely on the report with regard to the defendant’s competency to stand trial, unless the prosecuting attorney or the defense counsel objects in writing or in open court to the findings of the report within 15 days from the time the report is served on the parties. In the event of objection, the issue shall be set for a hearing before the court or, on motion by the defendant, his counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury. The hearing shall be held within 30 days following the date of objection unless continued for good cause.
“(h) If the defendant is found competent to stand trial, criminal proceedings against him may be resumed. If the defendant is found incompetent to stand trial, the court shall proceed under Section 6 of this article or shall release the defendant. No defendant who has been committed to a facility under Subsection (a) of this section may be recommitted to a facility under that subsection in connection with the same offense.
“(i) If the charges pending against a defendant are dismissed, the committing court shall send a copy of the order of dismissal to the head of the facility in which the defendant is held and the defendant shall then be discharged.”

The statute is clear as to the procedure to be used. When a defendant is returned to the committing court after notification by the head of the facility where he has been confined, a final report shall be filed with the court by the head of the facility documenting the applicable reason for such action under Subsection (e), supra. Copies of such report must be furnished to the defense counsel and the prosecuting attorney. When the report is filed, the trial court is authorized to make a finding of a defendant’s competency to stand trial based solely on the report unless the parties object in writing or in open court to the findings of the report within fifteen days from the time the report is served on the parties. If there is an objection, the issue is set for a hearing before the court unless on motion by either party or the court the hearing shall be heard before a jury.

After an examination of the appellate record, we have found a copy of the notification and final report of Dr. Sheldon, Superintendent of Rusk State Hospital, dated February 1, 1977, but bearing no file mark to show if or when it was filed with the court. We find nothing in the record to show that copies of the report were furnished the defense counsel or the prosecuting attorney, and further, we find nothing in either cause number to reflect that the court made a determination that the appellant was competent to stand trial either based solely on the report or after a hearing, nor is there any evidence of a hearing before a jury on the issue.

The general rule would seem to be that a person is presumed competent to stand trial until he is found incompetent to stand trial, and once found to be so incompetent, he is presumed to be incompetent to stand trial until such time as it has been determined in accordance with the law that he is competent to stand trial. Cf. Hefley v. State, 480 S.W.2d 810, 814 (Tex.Civ.App.1972).

Appellant argues that the procedure prescribed by law was not followed and a finding by a doctor or psychiatrist does not constitute a judicial determination as required by statute. Cf. Nichols v. State, 501 S.W.2d 333 (Tex.Cr.App.1973).

The State argues that the trial court need not have entered a judgment finding the appellant competent to stand trial after receiving the final report of the Superintendent of the Rusk State Hospital but could make a determination of competency based solely on the final report, and that when the appellant did not object to the findings of the report' within fifteen days he waived any such objection.

Our problem is the condition of the record before this court. The final report is in the appellate record but without a file mark to show that it was filed with the court as required by statute, there is nothing to reflect copies of the report were ever furnished or served on the parties and the fifteen days in which to object begins to run from the time of the service of the copies. There is no judgment, no order, no docket sheet entry or other evidence that the court ever made a determination of competency after the appellant’s return from the state hospital.

It seems passingly strange this issue was not raised until the time of appeal, but in disposing of appellant’s ground of error, we are bound by the appellate record.

Since there was no judicial determination of appellant’s competency to stand trial pri- or to the trial on the merits after he had earlier been found incompetent to stand trial by a verdict of a jury, the judgment is reversed and the cause remanded.

Before the court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

On original submission we reversed appellant’s conviction for attempted aggravated sexual abuse of a child on the ground that there was no judicial determination of appellant’s competency to stand trial prior to the trial on the merits in accordance with Article 46.02, Section 5(g) (Acts 1975, 64th Leg., ch. 415, p. 1095) in effect at the time of trial. As we stated in our original opinion:

Our problem is the condition of the record before this court. The final report is in the appellate record but without a file mark to show that it was filed with the court as required by statute, there is nothing to reflect copies of the report were ever furnished or served on the parties and the fifteen days in which to object begins to run from the time of the service of the copies. There is no judgment, no order, no docket sheet entry or other evidence that the court ever made a determination of competency after the appellant’s return from the state hospital.

The State, in its motion for rehearing, has supplied a supplemental transcript to this Court which shows that the final report of Dr. Robert Sheldon, Superintendent of Rusk State Hospital, dated February 1, 1977, was in fact in the file of the papers of this cause and did have a file mark placed upon it and was filed with the court as required by statute. The supplemental transcript further reflects that pursuant to Article 46.02, Section 5(g), supra, a copy of the report was furnished defense counsel by the trial court and that evidence of this was filed in the papers of this cause and was erroneously omitted in the original transcript.

However, the supplemental transcript has still failed to show us any judgment, order, docket sheet entry, or other evidence that the court ever made a determination of competency after the appellant’s return from the State hospital. The State argues that because the trial court is authorized to determine appellant’s competency based solely on the report filed by Dr. Sheldon, the court “obviously did make a determination that the appellant was competent to stand trial.” What may be obvious to the State is lacking in the record.

This appeal is therefore abated so that the trial court may make a judicial determination pursuant to Article 46.02, supra, regarding appellant’s competency to stand trial in the record of this cause.

ODOM, J., concurs in the result.

      . Now see Article 46.02, § 5 (Acts 1977, 65th Leg., p. 1458, ch. 596, effective Sept. 1, 1977).


author: DALLY, Judge.

text:
    Mark Douglas RIDLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 57272.
    Court of Criminal Appeals of Texas, Panel No. 2.
    July 11, 1979.
    Michael Greenberg, Irving, for appellant.
    Henry Wade, Dist. Atty. and T. Michael Sutton, Asst. Dist. Atty., Dallas, and Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of misdemeanor theft; the punishment is confinement in the county jail for thirty days and a fine of $175, probated.

Substantial questions are presented in this appeal; several questions concern a written statement purportedly made by the appellant to a security officer. The trial court held a hearing to determine whether the statement was admissible before the jury. One of the grounds of error urged by the appellant is that the court made no written findings of fact and conclusions of law as required by Art. 38.22, V.A.C.C.P. The State’s only response to this ground of error is that the trial court’s findings of fact and conclusions of law regarding the admissibility of the statement are included in a supplemental transcript.

We cannot consider the supplemental transcript since it is not properly before us. The supplemental transcript is a two page instrument entitled Findings of Fact and Conclusions of Law. This instrument bears only the trial judge’s signature and the file mark of this Court. This instrument was not filed in the papers of the trial court. See Art. 38.22, V.A.C.C.P. and Art. 40.09, V.A.C.C.P. It does not appear that the transcript was forwarded to this Court by the office of the Clerk. The provisions of Art. 40.09, V.A.C.C.P. have been wholly ignored and there is no indication that appellant’s counsel has been properly notified of the attempt to make this instrument a part of the record.

This appeal is abated for the trial court to properly supplement the record, Quinn v. State, 558 S.W.2d 10 (Tex.Cr.App.1977), and to take whatever action may properly be taken in accord with Art. 40.09, V.A.C.C.P.

It is so ordered.


author: TOM G. DAVIS, Judge.

text:
    Ex parte Danny EDEN and Mark Kaiser.
    No. 61097.
    Court of Criminal Appeals of Texas, En Banc.
    July 11, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioners were convicted of aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. The jury assessed punishment for Danny Eden at seven years and for Mark Kaiser at five years. The jury recommended probation for both men.

The trial court entered the following findings of fact and conclusions of law. The court found that (1) both men had been ordered to serve 60 days at the Texas Department of Corrections (TDC) under the “shock probation” provisions of Art. 42.12, Sec. 3f(b), V.A.C.C.P.; (2) Kaiser had served 12 days in jail and Eden 49 days in jail awaiting trial for the present offense; (3) Eden was indigent when awaiting trial; and (4) an affirmative finding had been made after trial that both men were convicted of a first degree felony in which a firearm was used and exhibited.

The trial court concluded as a matter of law that the petitioners were not entitled to credit against their confinement in TDC for the time spent in jail awaiting trial.

Petitioners contend that they have a statutory right to credit for the time spent in jail under Art. 42.03, Sec. 2, V.A.C.C.P., and a constitutional right to credit under our decision in Caraway v. State, Tex.Cr.App., 550 S.W.2d 699.

Article 42.12, Sec. 3f(b), supra, provides:

“If there is an affirmative finding that the defendant convicted of a felony of the second degree or higher used or exhibited a firearm during the commission or flight from commission of the offense and the defendant is granted probation, the court may order the defendant confined in the Texas Department of Corrections for not less than 60 and not more than 120 days. At any time after the defendant has served 60 days in the custody of the Department of Corrections, the sentencing judge, on his own motion or on motion of the defendant, may order the defendant released to probation. The Department of Corrections shall release the defendant to probation after he has served 120 days.”

Article 42.03, Sec. 2, V.A.C.C.P., provides:

“In all criminal cases the judge of the court in which the defendant was convicted shall given the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court.”

Article 42.02, V.A.C.C.P., provides:

“A ‘sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”

The “sentence” contemplated by Art. 42.03, Sec. 2, supra, as defined by Art. 42.02, supra, is the trial court’s formal action of committing a defendant to serve his period of punishment in jail or TDC.

The action of a trial court pursuant to Art. 42.12, Sec. 3f(b), supra, is an order for the confinement of a defendant for a period of 60 to 120 days. This order does not direct the judgment, (in this case, the grant of probation), “to be carried into execution” as does a sentence.

We hold that since no sentence is entered when the probationers were ordered confined under Art. 42.12, Sec. 3f(b), the provisions of Art. 42.03, Sec. 2 do not apply. Petitioners are not entitled to jail time credit under this statute.

Likewise, we find the petitioners’ constitutional claim without merit.

In Caraway v. State, supra, this Court observed that generally there is no federal constitutional right to credit for jail time served prior to sentencing. The exception to this rule is when the defendant is unable to post bond because of indigency and has been sentenced to the statutory maximum. 550 S.W.2d at 705.

In the present case, neither petitioner received the maximum permissible punishment for a first degree felony of life or 99 years. V.T.C.A. Penal Code, Sec. 12.32. We find that in the present case no constitutional right to the credit for jail time awaiting trial existed.

The relief sought is denied.

PHILLIPS, J., dissents.


author: DOUGLAS, Judge.

text:
    Ex parte Charles Chadwick CRANFORD.
    Nos. 61940, 61941.
    Court of Criminal Appeals of Texas, En Banc.
    July 11, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

In two causes, the applicant seeks habeas corpus relief under Article 11.07, V.A.C.C.P.

He contends that both indictments are void for failing to allege a culpable mental state. Under past decisions of this Court, he is correct.

One indictment in part alleges that Cran-ford “. . did then and there enter a building which was not open to the public, without the consent of Mrs. Agnes Shelton, the owner, and therein attempted to commit and committed theft.”

The other indictment alleges the same thing except that it alleges a different owner.

Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977), is controlling. In that case the indictment alleged that Winton “did then and there enter a building without the effective consent of Gary Minshew, the owner, and therein attempted to commit and committed theft.” The Court held that the indictment, which is the same as the two in the present causes, did not allege a culpable mental state and was fundamentally defective.

The indictments in the present causes are fundamentally defective under the Winton case.

Accordingly, the relief requested is granted and the prosecutions in both causes are ordered dismissed.


author: MURRAY, Justice.

text:
    Azalia RODRIGUEZ, Individually and as Next friend of Eric, Aaron and Leonard Rodriguez, minor children, Appellants, v. TEXAS EMPLOYER’S INSURANCE ASSOCIATION, Appellee.
    No. 16216.
    Court of Civil Appeals of Texas, San Antonio.
    May 16, 1979.
    Thomas S. Hoekstra, Chrysanthe A. Lambros, Branton & Mendelsohn, Inc., San Antonio, for appellants.
    John G. Lewis, Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

This suit for death benefits under the Workers’ Compensation Act was brought by the widow of Santiago Rodriguez, Jr., who was an employee of the H. E. Butt Grocery Company before he lost his life in a highway accident. The trial court granted a summary judgment in favor of Texas Employer's Insurance Association, appellee, the insurance carrier, and appellants have perfected their appeal to this court.

The summary judgment evidence establishes the following facts as stated in appellant’s brief:

The Summary Judgment evidence, viewed as it must be in a light most favorable to the Plaintiff, reflects that Plaintiff’s Decedent, SANTIAGO A. RODRIGUEZ, JR., was employed as a butcher in the market department of the H.E.B. Super Market No. 12 in San Antonio, Texas, which market is owned by the H. E. Butt Grocery Company. On or about July 9, 1977, the Decedent was directed by his supervisory employers RICHARD RUIZ (store director of H.E.B. No. 12) and RICHARD ESPARZA (market manager) to work from 8:00 o’clock a. m. until 11:00 o’clock a. m. on the following Sunday, July 10, 1977. The Deceased worked a regular forty hour work week and completed such on July 9th. Hence, the three hours which he was directed to work on Sunday were not part of his regular work schedule. The Deceased, moreover, had made plans for that Sunday to work on an old car which he was engaged in refurbishing, after which he was to join with members of his family in a reunion and dinner. Notwithstanding the fact that the Deceased had made personal plans and objected to working on that Sunday, his employers persisted in their request that he come to work in order that other employees might attend a company athletic function.
The Decedent eventually agreed to work on Sunday, July 10, 1977, and arrived at work on that date as scheduled. In order to do this it was necessary for him to ride his motorcycle on a public highway, following the identical route he had always taken home. He did not deviate from that route to further personal business of his own. At approximately 11:32 o’clock a. m., the Decedent was involved in a collision with another automobile which caused his death and has given rise to the instant cause of action.

Appellants contend that the trial court erred in granting the summary judgment because a disputed fact issue existed on whether appellants’ decedent was acting within the course and scope of his employment at the time of the accident in which he was fatally injured. We disagree.

The facts here simply show that the deceased was returning home from work when he was fatally injured in a motor vehicle accident. It is well established in this state that an injury occurring in the use of a public street or highway in going to or returning from the place of employment is not compensable because it was not incurred in the course of employment. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.1963); American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957); Hackfeld v. Pacific Employers Insurance Co., 393 S.W.2d 720 (Tex.Civ.App.—San Antonio 1965, writ ref’d); Maryland Casualty Co. v. Thomas, 367 S.W.2d 407 (Tex.Civ.App.—San Antonio 1963, writ ref’d).

Appellants recognize the general rule, but contend that the deceased in this case was on a “special mission” for his employer because the work he performed on that Sunday was overtime and not part of his regular employment. Section lb of Art. 8309, Texas Revised Civil Statutes, provides in part as follows:

Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment.

This section was enacted in 1957 in an effort to codify the specific situations when an injury suffered during transportation or travel could serve as a basis for a compen-sable claim. Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776 (Tex.1963). In Jecker, the Supreme Court interprets section lb as follows:

It is to be noted that one of the exceptions to the provision in Sec. lb that ‘transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment’ is when ‘the employee is directed in his employment to proceed from one place to another.’ We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment.

369 S.W.2d at 779.

Here, we have a case of an employee being injured while returning home from his work. The fact that the employee had been working an extra day for his employer would not change the situation.

Hartford Accident & Indemnity Co. v. Bond, 199 S.W.2d 293 (Tex.Civ.App.—Eastland 1946, n. r. e.) and Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776 (Tex.1963), cited by appellants, are not in point. In Jecker the employee was a sales and service man for his employer and was killed while returning home after performing some repairs to appliances in a distant town. He was required to travel in the performance of his duty. In Bond the deceased was an oil well roughneck who had been instructed to inform his drilling boss in advance if he ever felt he could not work his assigned shift. Neither he nor his boss had a telephone. The deceased left home in his personal car and traveled to the home of his boss to inform him that he could not work his regular shift on the night in question. He was killed in an automobile accident while returning home. It is evident in Bond that the deceased was killed while performing a special mission and was “directed in his employment to proceed from one place to another place.”

The case most factually similar to the case at bar is Bales v. Liberty Mutual Insurance Co., 437 S.W.2d 575 (Tex.Civ.App.—Amarillo 1969, no writ). In Bales the employee was instructed by his superior to report to his regular place of employment some two to three hours earlier than he normally reported. The employee was injured when he was struck by a train while traveling his normal route to work. The employee contended that he was on a “special mission” for his employer since he was instructed to report for work at 4:00 a. m. instead of his normal reporting hour. The court held that the employee was not on a special mission and affirmed a summary judgment for the carrier.

The judgment of the trial court is affirmed.