author: REYNOLDS, Justice.

text:
    MATRIX COMPUTING, INC., Appellant, v. H. G. DAVIS and the Lubbock National Bank, Appellees.
    No. 8784.
    Court of Civil Appeals of Texas, Amarillo.
    July 25, 1977.

      Talbert, Giessel & Stone, Inc., Fletcher F. Rhodes, Houston, for appellant.
    Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellees.
   REYNOLDS, Justice.

Granting defendants’ motion for instructed verdict, the trial court rendered a take-nothing judgment in plaintiff’s suit to recover damages resulting from its purchase of partially unpaid commercial paper sold by defendants through material misrepresentations. The court’s actions were proper because, at most, plaintiff produced no admissible evidence of probative force upon which the jury could have made a finding of damages. Affirmed.

Plaintiff Matrix Computing, Inc., sued H. G. Davis, a trust officer of the Lubbock National Bank, and the Lubbock National Bank to recover alleged damages flowing from Matrix’s purchase of commercial paper issued by Texas Consumer Finance Corporation. Matrix asserted that when its president, Kenneth R. Lokey, sought advice on investing Matrix’s stock subscription funds escrowed at the trust department of the bank in short-term securities, he was induced by Davis to buy T.C.F.C.’s commercial paper. The evidence is that on or about 1 April 1970, Lokey bought $132,500 of T.C. F.C.’s commercial paper. Afterwards, so Matrix further asserted, T.C.F.C. paid only $40,011.60 on the obligation and instituted bankruptcy proceedings, and the obligation has not been fully honored. The pleaded theories of defendants’ liability were that Davis materially misrepresented facts concerning the T.C.F.C. paper offered for sale and sold by the bank, which was not a registered dealer in securities, in violations of the Texas Securities Act (1964), Vernon’s Ann.Civ.St. art. 581-12. The pleaded damages were the unpaid $77,856.18 due on the commercial paper issued by T.C.F.C., the interest the bank charged on a loan required by Matrix when it did not receive payment on T.C.F.C.’s obligation, and the multiple damages authorized by the Texas Securities Act.

If Matrix suffered damages as a consequence of its purchase of the commercial paper through some wrongdoing of Davis and the bank, Matrix was required to prove its damages with sufficient certainty to enable a jury to compute them, Jordan v. Cartwright, 347 S.W.2d 799, 801 (Tex.Civ.App.—Fort Worth 1961, no writ), for a civil action for damages will not lie unless some damages are proven. Burris v. Wilson, 363 S.W.2d 885, 887 (Tex.Civ.App.—Amarillo 1962, no writ). To prove damages, Matrix had to first establish its present ownership of the commercial paper it purchased on or about 1 April 1970, that the obligation was due and unpaid, and the balance that was due. To this end, Matrix offered certain instruments as its business records and a summary thereof. Upon a series of objections making the point that the instruments and, resultingly, the summary were not shown to be admissible under the business records statute, V.A.C.S. art 3737e (Supp. 1976-77), the court excluded the instruments and the summary from the evidence.

Thereafter when Matrix rested, Davis and the bank moved for an instructed verdict on several grounds, one of which was that Matrix had failed to produce evidence of damages, an indispensable element of its cause of action. The court, without specifying a basis for its actions, granted the motion and rendered a take-nothing judgment.

In appealing, Matrix utilizes the first six and the eighth of its ten points of error to complain of the court’s refusal to admit in evidence the exhibits it offered to prove damages and of the granting of the motion for instructed verdict, particularly if it led to an instructed verdict on the issue of damages. In essence, the contention is that the exhibits, numbered one through five, bearing on damages were properly authenticated for admission as business records pursuant to V.A.C.S. art. 3737e.

The admissibility of business records is controlled by the statute, V.A.C.S. art. 3737e. To overcome the otherwise hearsay nature of a business record, the first section of the statute credits it as competent evidence if:

(a) the record was made in the regular course of business;
(b) it was the regular course of that business for an employee or representative of such business with personal knowledge of the act, event or condition to make the record or to transmit the information to be included in such record; and
(c) the record was made at, near or reasonably soon after the act or event.

Section 2 of the statute provides that the identity and mode of preparation of the record may be proved by the testimony of the entrant or of the custodian or other qualified witness whose lack of personal knowledge of the contents of the record affects the weight and credibility, but not the admissibility of the record.

Matrix’s only authenticating witness was Richard James Marxen, its current president. Marxen was employed by Matrix at the time of the April, 1970 transaction on which this suit is based, but he was not then either an officer or stockholder of Matrix, and he was not then the custodian of Matrix’s records. He did not participate in the transaction.

In response to questions by Matrix’s counsel, Marxen acknowledged that the business records of Matrix were under his control and in his possession, that they were routinely kept in the course of Matrix’s business, and that the entries upon such records were routinely made on or about the time shown by a person having knowledge of the facts so recorded. Thereupon, Matrix initially offered Marxen’s handwritten figures of the April, 1970 purchase, the payments received and the balance due or loss as a summary of its books and records. The summary, of course, would not be admissible until the admissibility of the underlying records was shown. Black Lake Pipe Line Company v. Union Construction Company, Inc., 538 S.W.2d 80, 92 (Tex.1976).

Next offered and excluded was exhibit no. 2, consisting of six non-negotiable promissory note forms, unsigned, but completed to show obligations of T.C.F.C. to Matrix. Two of the forms were dated April 2, 1970, for the amounts of $26,000 and $21,500; the other four bore 1970 dates subsequent to April and were completed in the amounts of $2,500, $14,000, $17,000 and $9,000. The notes carried various due dates, one of which was January 1, 1970, six months before the date of the note and three months prior to the transaction made the basis of this suit.

Marxen explained that the original instrument reflecting the $132,500 purchase was not a part of Matrix’s records and he never had seen it. Instead of the original instrument or some other internal record of the transaction, Marxen obtained the six unsigned notes on 14 July 1976, a week prior to trial, from Wallace Jay, the president of T.C.F.C., out of T.C.F.C.’s records, because, as Marxen stated, “My records were definitely inadequate, and I had to obtain, from the most learned person I could find, the resulting notes that were still outstanding after bankruptcy, with Texas Consumer Finance Corporation.” Conceding that he took the word of Jay that T.C.F.C. was in bankruptcy, Marxen further said, “Mr. Jay instructed me that those [notes] would support me without having the ability to show the original $132,500.” Marxen was of the opinion that the original purchase was shown “from the conversation I had with Mr. Jay.”

The tendered, but excluded exhibit no. 3 consisted of two letters from the bank enclosing copies of two drafts received from a bankruptcy disbursing agent in the total sum of $14,632.22 and notifying Matrix that the amounts had been applied on Matrix’s bank loan. The exhibit was offered to show payment on the $132,500 purchase, but Marxen admitted that his knowledge of these credits was derived from a conversation he had with Jay and from the records Jay had.

Also excluded on tender was exhibit no. 4, a composition of a note executed by Colonial Commercial Corp. and made payable to Matrix in the sum of $36,282.63, and a copy of a check payable to Matrix for $10,430.60 representing three payments on the original obligation. The exhibit was offered to show payment and Colonial’s assumption of T.C.F.C.’s obligation, but Marx-en granted that he took the word of Jay that the check represented a payment on T.C.F.C.’s obligation and that Colonial had assumed the obligation of T.C.F.C.

Further offered and rejected was exhibit no. 5, a copy of Matrix’s note to the bank and the bank’s record of payments thereon. The purpose of this exhibit was to show the basis for computing the interest charged Matrix by the bank for the loan.

It is at once obvious that the instruments obtained from other business entities and offered as Matrix’s business records did not meet any facet of the test for admissibility prescribed by the business records statute. There is no evidence that the records were made, or the information shown therein was transmitted for inclusion in the records, in the regular course of the businesses from whence they came by anyone with personal knowledge of the act, event or condition represented at, near or reasonably soon after the occurrence of such act, event or condition. There is no testimony that any employee of Matrix, whose “records were definitely inadequate,” transmitted the information to be included in the records of the business entities purportedly furnishing the instruments to Matrix. Thus, the exhibits, including the summary, were not admissible under the business records exception to the hearsay rule. Cooper Petroleum Company v. LaGloria Oil and Gas Company, 436 S.W.2d 889, 891 (Tex.1969).

Contrary to Matrix’s argument, the instruments obtained from other business entities did not become admissible as Matrix’s records, to be judged on their weight and credibility, simply because Marxen acknowledged that they were Matrix’s records kept in the regular course of its business with the entries thereon routinely made by a person having knowledge of the facts recorded. The test for admissibility is not the mere recitation of the words of the statutory predicate; rather, in the language of Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex.1962),

Some employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition in order for such record to be admissible under the business records exception to the hearsay rule.

Admittedly, Marxen had no personal knowledge of the entries contained in the instruments obtained from other business entities. Within the meaning and intent of the statute, Marxen was not a qualified witness to testify to the record keeping of another entity. Absent proof that the one who entered the information, or transmitted it for entry, in the records had personal knowledge of the data entered, the instruments were inadmissible, North Texas Lumber Company v. Kaspar, 415 S.W.2d 470, 474-75 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.), because “(t)he legislature has provided for their exclusion by the requirement of personal knowledge by an employee or representative of the ‘business’ Skillern & Sons, Inc. v. Rosen, supra, at 305.

Therefore, the exhibits, and particularly exhibit no. 2 on which the cause of action depended, were not admissible under the business records statute. Matrix did not contend in the trial court, nor does it contend here, that one or more of the instruments was admissible under some other theory. Thus, there being no evidence having probative force upon which the jury could have made a finding of damages in favor of Matrix, the trial court correctly granted the motion for instructed verdict and rendered the take-nothing judgment.

Matrix’s points one through six and point eight are overruled. The remaining points challenging the other grounds on which the motion for instructed verdict may have been granted are not reached.

The judgment is affirmed.

      . The Fort Worth National Bank was joined as a party defendant, but the cause of action alleged against it was transferred to Tarrant County by an agreed order.

      . Matrix’s counsel proffered the hearsay representation that the original of the commercial paper had been filed with the bankruptcy court and it is not available; but, if Texas Consumer Finance Corporation were a bankrupt, no explanation was tendered why either the record was not withdrawn or a certified copy obtained for this trial.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Glenna Jo BROOKS, as the Personal Representative of the Estate of Jimmy L. Brooks, Deceased, Appellant, v. Herbert MAHFOUZ, Appellee.
    No. 5718.
    Court of Civil Appeals of Texas, Waco.
    July 28, 1977.

      Donald Y. Yarborough, Yarborough, Hinds & Shahan, Dallas, for appellant.
    Laurence E. Bergman, Bergman & Crowl, Garland, for appellee.
   HALL, Justice.

Appellant, Glenna Jo Brooks, as personal representative of the estate of Jimmy L. Brooks, deceased, brought this appeal by petition for writ of error to set aside a judgment rendered in favor of appellee, Herbert Mahfouz, against “The Estate of Jimmy Brooks.”

Appellee initiated this suit in December, 1974, against “Jimmy Brooks dba Colonial Motors” for money damages allegedly stemming from transactions between them in the used car business. Brooks answered the suit with a general denial. In January, 1975, appellee filed his first amended petition “against Jimmy Brooks dba Colonial Motors and The Estate of Jimmy Brooks” reciting the fact of the filing of his original petition and Brooks’s answer to it; suggesting that after the filing of the answer Brooks died; and alleging “that the Estate of Jimmy Brooks is now made a party to this cause of action and may be served with citation by serving the personal representative of the Estate, the widow of Jimmy Brooks, Mrs. Jimmy L. Brooks, and she may be served with citation at 6168 E. Lovers Lane, Dallas, Texas.” Appellee then restated the count for damages which was set forth in his original petition, and prayed for citation against the “Defendants” and for judgment “against the Defendants and each of them, jointly and/or severally.” Thereafter, citation was issued and directed to Mrs. Brooks (appellant on this appeal) simply as “defendant,” and served on her, commanding her to appear and answer plaintiff’s first amended petition. She did not answer the suit.

Thereafter, judgment was rendered in favor of appellee against both “Jimmy Brooks dba Colonial Motors” and “The Estate of Jimmy Brooks.”' The judgment recites that those defendants “did not appear either by written answer or in person and wholly made default.” Later, the judgment against “Jimmy Brooks dba Colonial Motors” was set aside and the cause of action against him was dismissed because he was dead, but the judgment against “The Estate of Jimmy Brooks” was left in force.

The “estate” of a decedent is not a legal entity and may not properly sue or be sued as such. A suit to establish the liability of a decedent and collect the claim out of property belonging to his estate should be brought against the personal representative of the estate or, under appropriate circumstances, against the heirs or beneficiaries of the estate. Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.Sup., 1975).

Appellant was not joined or served with citation either as representative of the estate or an heir or beneficiary, and the judgment was not rendered against her in any capacity. Her contentions in these respects are sustained, requiring reversal of the judgment. However, because this is a direct appeal, we need not decide whether the judgment is void (as appellant asserts) or merely voidable.

The judgment is reversed and this cause is remanded to the trial court.


author: JAMES, Justice.

text:
    DEAL DEVELOPMENT COMPANY et al., Appellants, v. AMARILLO CONCRETE CONTRACTORS, INC., Appellee.
    No. 5728.
    Court of Civil Appeals of Texas, Waco.
    July 28, 1977.

      Thomas L. Case, Bickel & Case, Dallas, for appellants.
    Gayle E. Oler, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a suit for breach of a construction contract. Pursuant to a jury verdict the trial court entered judgment for Plaintiff-Appellee, after allowing a counterclaim in favor of Defendant-Appellants. We reform and affirm.

Plaintiff-Appellee Amarillo Concrete Contractors, Inc. (hereinafter called “Amarillo”) sued Defendant-Appellants Deal Development Co., a partnership (hereinafter called “Deal”), Equity Builders, Inc., and Kaiser Aetna, a partnership, for damages for breach of a written contract under which Amarillo agreed to complete certain construction work for Deal on an apartment project known as the Brookstone Apartments in Clearwater, Florida. The contract defined the work as “furnish all labor, materials, and equipment necessary to complete all foundations and flatwork.” The contract price of $280,981.21 was increased by a change order for $16,965.00 which added about 10,000 linear feet of interior beams to the foundation, making a total contract price of $297,946.21. Defendant-Appellants asserted a counterclaim to the effect that Amarillo converted $16,965.00 worth of steel belonging to Deal.

The original contract was dated May 25, 1973, and was amended by a change order dated July 20, 1973; however, for purposes of this opinion the total agreement will be hereinafter referred to as the “contract.”

Trial was to a jury which found:

(1)The ending date of “a reasonable period of time” in which Amarillo was to have commenced the actual construction of the foundations on the Brookstone project under its contract with Deal was December 1973.

(2) Before and up to December 1973, Amarillo was ready, willing, and able to commence the actual construction of the foundations on the Brookstone project under its contract with Deal.

(3) At some time during the summer of 1974 before August 29, 1974, Deal instructed Amarillo not to proceed further with its work under the contract.

(4) Under all the circumstances which existed on or before the occasion wherein Deal instructed Amarillo not to proceed, Amarillo had proceeded with due diligence under the contract.

(5) Deal paid Amarillo $22,410.93 pursuant to the contract.

(There was no Special Issue No. 6).

(7) In July 1974, Deal informed Amarillo that Deal had decided to postpone for the indefinite future the commencement of actual construction of the foundations of the Brookstone project.

(8) Up until July 1974 when Deal informed Amarillo that Deal was postponing indefinitely the construction under the contract, Amarillo had proceeded with due diligence under the contract with Deal.

(9) In July 1974, Deal informed Amarillo that Deal would probably not build the Brookstone project.

(10) Under all the circumstances which existed on or before July 1974 wherein Deal informed Amarillo that Deal would probably not build the Brookstone project, Amarillo had proceeded with due diligence under the contract.

(11) As of July 31, 1974, the cost to Amarillo to complete its obligations under the contract with Deal was $248,126.96.

(12) Amarillo actually spent $22,410.93 in performance of its obligations under the contract with Deal.

(13) From October 1973 up through the summer of 1974, Amarillo possessed the capability of performing its construction obligations under the contract.

(14) In November 1974 Deal made demand upon Amarillo to commence work on the Brookstone project.

(15) The jury failed to find that Amarillo’s failure to commence work after the November 1974 demand by Deal constituted a repudiation or abandonment of the contract.

(16) In July 1974 Deal was the owner of the steel in question for the Brookstone foundations.

(17) Amarillo in July 1974 converted such steel to its own use on another project.

(18) The reasonable cash market value of the steel in question in July 1974 at its location in Clearwater, Florida, was $16,-965.00.

(19) The jury failed to find that Amarillo’s converting such steel to its own use constituted notice by Amarillo that it was renouncing or abandoning the Brookstone project.

(20) The jury failed to find that Amarillo by its acts or conduct in 1974 waived its rights to any benefits from the Brookstone project contract.

Pursuant to and in harmony with the jury verdict, the trial court entered judgment in favor of Plaintiff Amarillo against Defendants for $32,854.25 and costs, from which Defendants appeal.

Appellants assert ten points of error challenging the jury’s answer to Special Issue No. 11, saying there is no evidence to support such finding, and that said finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. As hereinbefore stated, in answer to Special Issue No. 11 the jury found that Amarillo’s cost as of July 31, 1974, to complete its obligations under its contract with Deal, was $248,126.96. Appellants contend that since this jury finding cannot stand, there is no basis upon which Plaintiff Amarillo can establish damages. We are of the opinion that there is ample evidence to support this jury finding in answer to Special Issue No. 11.

This case was tried, and properly so, upon the theory that the Plaintiff’s measure of damages as contractor is the contract price less what it would cost Plaintiff to perform the contract to completion. Carras v. Birge (Dallas 1948) 211 S.W.2d 998, NRE; Wynnewood Development Co. v. Belmares (Eastland 1956) 295 S.W.2d 441, no writ.

Bearing in mind the above rule for Plaintiff’s measure of damages, let us examine the mathematical consequences as the rule applies to the jury’s answers to the applicable special issues: The contract price was undisputedly $280,981.21 plus a change order increasing it by $16,965.00, making a total contract price of $297,946.21. The payments made by Defendant-Appellants to Plaintiff Amarillo on the contract were found by the jury (Special Issue No. 5) to amount to $22,410.93. The contract price less the payments results in a net contract balance of $275,535.28.

The jury found in answer to Special Issue No. 11 that the cost to Amarillo to complete its obligations under the contract and change order was $248,126.96. From this the trial court subtracted the jury’s finding of expenditures made by Amarillo of $22,-410.93 (Special Issue No. 12) to arrive at Amarillo’s unexpended cost of $225,716.03. Then, subtracting the unexpended cost of $225,716.03 from the net contract price of $275,535.28, the court arrived at Plaintiff Amarillo’s gross damages of $49,819.25. From this amount, the trial court subtracted $16,965.00 (same being the value of the steel which the jury found Amarillo converted in answer to Special Issues Nos. 16, 17, and 18), to arrive at Plaintiff Amarillo’s net damage of $32,854.25, which is the amount of the judgment Amarillo was awarded against Defendants.

We now revert to Defendant-Appellant’s ten points of error wherein they challenge the legal and factual sufficiency of the evidence to support the jury’s finding of $248,-126.96 in answer to Special Issue No. 11. We are mindful of the rules laid down by our Supreme Court in weighing legal insufficiency and factual insufficiency points of error, and will not repeat them here. Suffice it to say that the evidence in the case at bar is both legally and factually sufficient to support this jury finding, and all of Appellants’ points of error in this connection are overruled.

The following is a synopsis of the evidence bearing upon the jury finding in question:

The Brookstone construction contract was only one of three contracts entered into between Amarillo and Deal on the same date of May 25, 1973, each contract being for the construction of one phase of a large apartment project in Clearwater, Florida. Phase one was called Brookgreen; the second phase was called Brookwood, while the third phase was called Brookstone, and was covered by the contract in question. Brookgreen and Brookwood were contiguous, and were separated from Brookstone only by a single street running between them. The combined total of all three projects was over six hundred apartment units. As stated, all three contracts bore the same date of May 25, 1973, and each of the three had a change order bearing date of July 20, 1973 for the adding of interior beams to the foundation. The same architect prepared the plans for all three projects (Edward T. Stefoniak); and the foundation designer, Victor Lissiak, testified that the revised plans for the foundations were identical on all three projects. Johnny Airhart, Defendants’ construction coordinator, referred to all three projects as “the project in Clearwater,” and testified that at the pre-construction conference in Florida, the sequencing of building the Brookstone, Brookwood, and Brookgreen Apartments was arranged and the three were basically treated as a unit. It is undisputed that Amarillo commenced the foundations on Brookwood and Brookgreen in October, 1973, the flatwork (sidewalks, etc.) in the spring of 1974, and both of these contracts were fully performed and completed by Amarillo to Deal’s satisfaction. At the pre-construction conference herein-above referred to, Mr. Airhart, Deal’s construction coordinator, directed Amarillo to the effect that the Brookwood and Brook-green work would be completed before Brookstone work would be commenced.

Mrs. Karen Cobb, secretary-bookkeeper for Amarillo, was a witness for Plaintiff. She brought into the courtroom two packing boxes full of records and five books of records belonging to Amarillo, of which she was the custodian at all times material to this suit. This data included all the business records pertaining to the Brookwood and Brookgreen jobs. She testified that all of these records brought into court were made and kept in the regular course of business; that it was in the regular course of business of Amarillo for an employee or representative with personal knowledge of the act, event, or condition recorded to make the records or to transmit information to be included in the records; and that the records were made at or near the time of the act, event, or condition recorded or reasonably soon thereafter. Mrs. Cobb’s records included those of all material costs, labor costs, subcontract costs and direct job costs on Brookwood and Brookgreen. Amarillo’s home office was in Dallas, Texas. The project supervisor in Florida transmitted to her the information from the field as to the costs of materials, labor and subcontracts used in the project, and Mrs. Cobb wrote checks in payment of same. At the time she issued each check she made a check stub and a record of the check on a transmittal form to the computer used by the company. She had personal knowledge of every check which went to the computer. The information which she sent to the computer came back to Mrs. Cobb on a computer form, which she personally verified from her own records.

Mrs. Cobb produced and identified the monthly accounting envelopes, which included the bank statements, check stubs, cancelled checks and transmittal forms (to the computer) for each month during the periods of 1973 and 1974 in which the Brookwood and Brookgreen jobs were going on. She had personally written all the said checks and check stubs and transmittal forms. She testified that it was possible to ascertain what costs had been paid by Amarillo on the Brookwood and Brookgreen projects by examining the monthly accounting envelopes, and that all the envelopes before the court contained records as to the costs or expenditures incurred by Amarillo on the Brookwood and Brookgreen jobs.

Mrs. Cobb testified that while she did not have personal knowledge that the labor in Florida was actually done or that the materials were actually furnished, as stated in the information sent to her by M. A. Boyce, the field superintendent in Florida, she did know that it was in the regular course of business of Amarillo for someone with personal knowledge, an employee or representative of the company, to send her that information, which is the information in the exhibits which she received from Florida and had identified in court, and the records before the court were prepared from such information in that regular course of business.

All of these records were brought into court, identified, and made available to Defendant-Appellants for purposes of audit, cross-examination or whatever use Appellants had for them. They were marked as exhibits, but were not offered in evidence.

Mrs. Cobb testified that she had prepared a summary which she took from the computer records, which she had personally verified and checked against her own records. This summary was a list of all costs on the Brookwood and Brookgreen projects and showed costs for labor, concrete, steel, lumber, other materials, subcontracts and other expenses, and was broken down between foundations and flatwork. The summary was identified as Plaintiff’s Exhibit 24 and showed the total costs to Amarillo of building Brookwood and Brookgreen. Mrs. Cobb testified, and the summary showed, that the total cost to Amarillo to do the Brookwood and Brookgreen jobs was $249,562.17. This summary was offered and admitted in evidence.

From this testimony concerning Brook-wood and Brookgreen, Amarillo proved: (1) The total contract price on both these contracts plus both change orders totalled $320,475.47; (2) Amarillo’s total combined costs on these two jobs was $249,562.17 plus labor overhead of $6423.97; (3) Amarillo’s actual profit on Brookwood and Brookgreen combined was $64,489.33 or 20.12%. By applying this same percentage of profit (20.12%) actually realized on Brookwood and Brookgreen, to the Brookstone contract totalling $297,946.21, Mr. Guy Wells, president of Amarillo, testified that Amarillo’s anticipated profit on the Brookstone contract would be $59,946.78.

In our opinion, the books and records of Amarillo as produced in court and identified by Mrs. Cobb as custodian thereof, would have been properly admissible into evidence as business records under Article 3737e, Vernon’s Texas Civil Statutes, the Business Records Act. See University Savings and Loan Assn. v. Security Lumber Co. (Tex.1967) 423 S.W.2d 287; Eubanks v. Winn (Houston Tex.Civ.App.1971) 469 S.W.2d 292, NRE. In other words, the admissibility of these underlying records was established. Since these records were voluminous, were admissible, and were made available in court to Defendants for inspection and cross-examination, we believe a proper predicate was laid by Plaintiff-Appellee for the introduction of the summary (Plaintiff’s Exhibit 24) into evidence, under the test laid down by our Supreme Court in Black Lake Pipe Line Co. v. Union Construction Co. (Tex.1976) 538 S.W.2d 80.

A summary of voluminous records may, in the discretion of the trial court, be admitted into evidence to expedite the trial and aid the trier of fact. This rule assumes that the underlying records, upon which the summary is based, are themselves admissible. Black Lake, supra; Cooper Petroleum Co. v. La Gloria Oil and Gas Co. (Tex.1969) 436 S.W.2d 889; Texas Warehouse Co. of Dallas, Inc. v. Springs Mills, Inc. (Waco, Tex.Civ.App. CA 1974) 511 S.W.2d 735, NRE; Wigmore on Evidence, 3rd Edition, 1940, sec. 1230.

Plaintiff-Appellee also introduced evidence as to costs of constructing the Brook-stone project from the expert opinion testimony of Guy Wells, Amarillo’s president. Mr. Wells was shown to have had considerable experience in the concrete construction business, and testified to a substantial record of Amarillo under his leadership in building several large, commercial projects for a profit. He testified that Amarillo could have performed the Brookstone contract in addition to performing all its other work, and that Amarillo had built numerous projects in Florida before it ever undertook the Deal contracts. Wells testified that he was personally familiar with all costs for labor, material, and other items in Clear-water, Florida during 1973 and 1974. He testified to the manner in which he makes proposals or bids on contracts. He made the initial cost estimate in 1973 for the Brookstone. project, and then revised his estimate when the change order took effect for inserting the beams in the foundations. He testified that Amarillo’s cost to do Brookstone in July of 1973 would have been $225,996.00; in December 1973 it would have been $236,002.00; in February 1974, the cost would not have increased; there would have been no increase in May 1974; but in July 1974 the cost would have been $237,502.00; in August 1974 there would have been no increase; but in September 1974, the cost would have been $239,002.00.

Mr. Wells then testified that had Amarillo been allowed to begin the Brookstone project in December of 1973, its profit would have been $61,944.16; whereas had Amarillo been able to begin Brookstone in July of 1974, the company would have earned a profit of $60,444.16. Then, as stated hereinabove, Mr. Wells testified that by applying the 20.12% profit formula as actually realized from Brookwood and Brook-green, to the Brookstone job, .that Amarillo would have realized a profit of $59,-946.78 from the Brookstone contract. Mr. Wells was shown to be a qualified expert witness familiar with Amarillo’s operations and familiar with costs to complete Amarillo’s obligations under Brookstone’s contract and change order.

In our opinion, the evidence to support the jury’s finding of $248,126.96 in answer to Special Issue No. 11 as Amarillo’s cost to complete Brookstone as of July 31, 1974, is ample, and both legally and factually sufficient.

Plaintiff-Appellee Amarillo by cross-point contends the trial court erred in overruling Plaintiff-Appellee’s motion for prejudgment interest on its amount of damages from August 1, 1974 to the date of judgment, to wit, July 22,1976. We sustain this contention, and hold that Plaintiff-Appellee is entitled to pre-judgment interest at 6% per annum on $32,854.25, the amount of the judgment, from August 1, 1974 until July 22, 1976, the date of judgment. Article 5069-1.03, Vernon’s Texas Civil Statutes. Plaintiff-Appellee pleaded for prejudgment interest.

Where damages are established as of a definite time and the amount thereof is definitely determinable, as in the case at bar, interest is recoverable as a matter of right from the date of injury or loss. Watkins v. Junker (1897) 90 Tex. 584, 40 S.W. 11; Texas Co. v. State (1955) 154 Tex. 494, 281 S.W.2d 83; Comet Aluminum Co. v. Dibrell (Tex.1970) 450 S.W.2d 56; Black Lake Pipe Line Co. v. Union Construction Co. (Tex.1976) 538 S.W.2d 80.

Here, the amount of damages to which Plaintiff-Appellee was entitled was definitely established as of July 31,1974; therefore, Plaintiff-Appellee was entitled to prejudgment interest from August 1, 1974, to the date of judgment.

Plaintiff-Appellee asserts seventeen cross-points complaining of the $16,965.00 counterclaim allowed by the trial court against Plaintiff-Appellee in the judgment, based upon the jury’s findings in answer to Special Issue Numbers 16, 17, and 18. In answer to these issues, the jury found: (16) in July 1974, Defendant Deal was the owner of certain steel in the possession of Amarillo, for use in the Brookstone foundations; (17) in July 1974, Amarillo converted such steel to its own use on another project; and (18) the reasonable cash market value of said steel at the time and place in question was $16,965.00. We have carefully considered Plaintiff-Appellee’s cross-points, and without discussing same in detail, overrule them as being without merit. Suffice it to say that the evidence is legally and factually sufficient to support the jury’s findings in answer to Special Issues Nos. 16, 17, and 18.

Defendant-Appellants have other points and contentions, all of which we have carefully considered. We overrule all of same as being without merit.

Judgment of the trial court is reformed by awarding Plaintiff-Appellee pre-judgment interest from August 1, 1974, to July 22, 1976, the date of judgment, and as reformed, said judgment is affirmed.

REFORMED AND AFFIRMED.


author: MOORE, Justice.

text:
    J. W. BURROWS, Appellant, v. TEXAS KENWORTH COMPANY et al., Appellees.
    No. 1043.
    Court of Civil Appeals of Texas, Tyler.
    July 28, 1977.
    Rehearing Denied Aug. 18, 1977.

      Blake H. Bailey, Wellborn & Houston, Henderson, for appellant.
    Dick P. Wood, Wood & Wood, Dallas, Joe Michael Russell, Sleeper, Williams, Johnston, Helm & Estes, Waco, for appellees.
   MOORE, Justice.

This is an appeal from an order sustaining defendants’ pleas of privilege. Plaintiff, J. W. Burrows, a resident of Rusk County, Texas, instituted suit against Texas Kenworth Company (Kenworth), a Texas Corporation domiciled in Dallas County, Texas, and Paccar Financial Corporation (Paccar), a Washington corporation with a permit to do business in Texas and having its principal offices and place of business in Dallas County, Texas. As grounds for a cause of action, plaintiff alleged that he had purchased five truck tractors from Kenworth which were financed by Paccar. He alleged that both before and after the warranty period, the 1969 and the 1971 model truck tractors purchased from Ken-worth had repeatedly broken down due to the unsatisfactory condition of the units at the time they were purchased; that Ken-worth, in accordance with its contract, had attempted to make repairs on numerous occasions and had billed him approximately $23,000.00 for repairs; and that the repairs were wholly inadequate and caused further breakdowns resulting in a loss of business both because of late runs and because of down time causing loss of freight charges of $4,250.00 on at least two occasions. Plaintiff further alleged that the repairs made after the expiration of the warranty were far inferior to the representations made by Kenworth’s employees and representatives and, as a result, Kenworth breached its contract and was guilty of false, misleading or deceptive trade practices in violation of the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code sec. 17.46(b) 5, 7, 12, 14, and 19. Plaintiff also alleged that he had been damaged in the amount of $75,000.00 by reason of the inadequate repairs and sought an accounting on the amount due and owing therefor.

Each of the corporate defendants filed a plea of privilege seeking to have the case transferred to Dallas County, Texas. In reply, plaintiff filed a controverting affidavit asserting that the suit was lawfully maintainable in Rusk County against both defendants under subdivisions 23, 27, 29a, 30 and 31 of art. 1995, Tex.Rev.Civ.Stat. Ann. The trial court sustained the plea of privilege of each defendant and ordered the cause transferred to the District Court of Dallas County.

We affirm.

At the hearing on the plea of privilege which was held before the trial court without a jury, plaintiff established that he was a resident of Rusk County, where he operated his trucking business. It was also established that Kenworth’s offices and principal place of business were situated in Dallas County and that Kenworth also maintained a place of business in the eastern part of the city of Longview, which was situated in Harrison County, Texas. Plaintiff purchased the five tractors in question in Longview and it was there that he signed all the papers consummating each of the five transactions. It is undisputed that Paccar’s only connection with the five transactions was the financing of the vehicles upon its receipt of Kenworth’s assignment of the notes and chattel mortgages. Plaintiff made payments to Paccar by mailing the same to Paccar’s Washington offices. Contrary to the allegations in plaintiff’s petition, there is no evidence that Paccar was the alter ego of Kenworth or that Paccar had any connection whatsoever with plaintiff or with Kenworth other than financing the vehicles. It is undisputed that neither Kenworth nor Paccar had an office, a place of business, an agent or a representative in Rusk County.

The evidence shows that the plaintiff purchased the 1969 model tractor at Ken-worth’s place of business in Longview on November 20, 1972. At that time the tractor had been in use for over two years. The contract of sale recited that “the seller makes no warranty of merchantability or fitness for particular purpose. Used vehicles are sold as is with no warranties unless such warranties are in writing and signed by the seller.” Under the contract of sale Kenworth warranted only the parts comprising the engine, transmission and rear axles. While the plaintiff testified that he took this vehicle back to Longview for repairs, there is no evidence that he took it back within the warranty period or that any of the warranted parts failed within the thirty-day warranty period. In substance, plaintiff testified that he took the tractor to Longview for repairs on several undisclosed dates and in each instance the tractor eventually broke down again.

In regard to the 1971 model tractor, the evidence shows that it was purchased by the plaintiff as a used tractor on February 5, 1973. The contract for the 1971 model tractor contained the same warranty provisions as did the contract for the 1969 model tractor except there was no thirty-day warranty on any of the parts. Plaintiff testified that the 1969 model tractor had also been repaired by Kenworth at its Longview location and that such repairs likewise failed to last. He testified that as a result of the defective repairs both tractors were out of operation for what he considered to be an excessive amount of time and consequently caused him to lose profits from his business. He further testified that at the time he purchased each of the tractors, Kenworth represented to him that they were in good condition. He also testified that Kenworth represented to him that it could handle all repair work and have the trucks in operation again in a timely manner.

We find nothing in the record showing that any part of these transactions occurred in Rusk County. The only evidence tending to prove that anything at all occurred in Rusk County was plaintiff’s testimony that a representative of Kenworth made the aforementioned representations concerning repair work during a telephone conversation with him in Rusk County.

By a single point of error plaintiff contends that the trial court erred in sustaining the pleas of privilege filed by each of defendants. We find no merit in plaintiff’s contention.

It is the general rule in Texas that a defendant is entitled to be sued in his own county unless it clearly appears that one of the exceptions set forth in art. 1995, Tex.Rev.Civ.Stat.Ann., will apply. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951). To sustain venue in a given case it is the plaintiff’s burden to allege and prove the venue facts appropriate to the character of suit alleged. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945).

By the order sustaining the pleas of privilege the trial judge has, by implication, resolved all questions of fact against the plaintiff. To obtain a reversal under these circumstances, plaintiff is required to show that his right to maintain the suit in Rusk County was conclusively established under one or more of the exceptions mentioned in art. 1995, supra.

In order to bring himself within the provisions of subdivision 23 of art. 1995, which permits “a private corporation” to be sued in “[any] county in which the cause of action or a part thereof arose,” the plaintiff had the burden of establishing a cause of action and showing that either some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, occurred in the county where the suit is brought. Stone Fort Nat’l Bank v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676 (1936); Bengriffin Tractor Co. v. Garza, 497 S.W.2d 69 (Tex.Civ.App.—Fort Worth 1973, no writ). For venue purposes damages are not ordinarily considered a part of the cause of action and usually it is not sufficient to show merely that the plaintiff sustained damages in the county of suit, when the genesis and the breach of the right occurred elsewhere. Graves v. McCollum & Lewis, 193 S.W. 217 (Tex.Civ. App.—Fort Worth 1917, no writ); 1 McDonald, Texas Civil Practice, sec. 4.30.2, p. 521 (1965).

As we view the record, venue may not be maintained in Rusk County under subdivision 23, because no part of the transaction between the plaintiff and defendants occurred in Rusk County. It is undisputed that all contracts for the purchase of the tractors were made and executed in Harrison County and all repairs were made in that county. We cannot agree with the contention that the above described telephone conservation between a representative of Kenworth and the plaintiff in Rusk County constituted an express contract. As we view it, the statements made by Ken-worth’s representatives constituted nothing more than an expression of the opinion that Kenworth was capable of making the repairs in an expeditious manner. In any event, the record fails to show the date on which the statements were made, and the evidence fails to show that the plaintiff accepted or acted thereon after such representations were made. Rather than being a suit for the breach of an express promise, the cause of action asserted by the plaintiff is in the nature of a suit for breach of an implied promise to perform the work in a workmanlike manner. Since all transactions relating to repairs occurred or arose exclusively in Harrison County and not in whole or in part in Rusk County where the suit was filed, plaintiff is in no position to claim the benefits of subdivision 23 in relation to his claim against Kenworth. Insofar as Paccar is concerned, the record is devoid of any proof that it had any connection with the repair transactions.

The suit is not maintainable against the defendants in Rusk County under subdivision 27 which provides for venue in cases involving foreign corporations. It is undisputed that Kenworth is a domestic corporation and for that reason would not ' be subject to this exception. It is likewise undisputed that although Paccar is a foreign corporation it has obtained a permit to do business in this state. For this reason Paccar is considered to be a resident of this state under the venue statute. J. I. Case Co. v. Darcy, 424 S.W.2d 501, 502 (Tex.Civ.App.—Amarillo 1968, no writ); O. M. Franklin Serum Co. v. C. A. Hoover & Son, 410 S.W.2d 272, 273 (Tex.Civ.App.—Amarillo 1966, writ ref’d n.r.e.). Since Paccar was shown to have been authorized to do business in this state, for venue purposes it must be treated as a domestic corporation and, therefore, that portion of subdivision 27 authorizing suit against foreign corporations in the county where plaintiff resides is inapplicable.

Next, plaintiff contends that venue was lawfully maintainable in Rusk County under the provision of See. 17.56 of the Deceptive Trade Practices Act, supra, which provides that suits arising under the Act may be commenced in the county in which the defendant resides, has his principal place of business or is doing business. We do not agree. Plaintiff’s contention is based on the assumption that the alleged false representation amounted to a violation of the Act. In the absence of proof showing that the alleged false representation was made after May 21, 1973, the effective date of the Act, plaintiff failed to show that the applicability of the Act, and hence, failed to establish a cause of action. Cape Conroe, Ltd. v. Specht, 525 S.W.2d 215 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ.). The contention is overruled.

Plaintiff’s contention that venue was established in Rusk County under subdivision'31 of art. 1995 is likewise overruled. This exception provides, among other things, that in “Suits for breach of warranty by a manufacturer of consumer goods may be brought ... in the county where plaintiff or plaintiffs reside.” The plaintiff offered no evidence that either of the defendants was a manufacturer. For this reason, subdivision 31 cannot be invoked against either defendant. White Stores, Inc. v. Fielding, 533 S.W.2d 431, 433 (Tex.Civ.App.—Corpus Christi 1976, no writ).

Finally, we find no merit in plaintiff’s contention that venue was lawfully maintainable in Rusk County against defendant Paccar under subdivision 29a of art. 1995. This subdivision provides that when the plaintiff sues two or more defendants in a county where venue is proper as to one defendant, the plaintiff may maintain venue therein against all necessary parties. In order to maintain venue against Paccar under this subdivision, plaintiff was required to establish that venue was properly laid in Rusk County for his cause of action against Kenworth. Subdivision 29a never operates alone. It is invoked only when no other exception reaches the defendant urging his plea of privilege, but there is another defendant (not residing in the county of suit) against whom venue is sustainable. 1 McDonald, Texas Civil Practice sec. 4.36.

The judgment of the trial court is affirmed.


text:
    Willie Pearl BARR, Appellant, v. James Herrin GRIFFIN, Appellee.
    No. 5682.
    Court of Civil Appeals of Texas, Waco.
    July 28, 1977.
    Rehearing Denied Aug. 18, 1977.
    Burt Berry, Dallas, for appellant.
    Timothy E. Kelley, P. C., Dallas, for ap-pellee.
   HALL, Justice.

The judgment questioned on this appeal recites that it was based upon the parties’ compromise and settlement agreement. Among other grounds for reversal, appellant contends the settlement agreement had been disavowed by her when the judgment was rendered. We sustain this contention and reverse the judgment.

Appellee, James Herrin Griffin, filed application to be appointed temporary guardian of the person and estate of appellant, Willie Pearl Barr, reciting that he was appellant’s nephew, that appellant is senile and incompetent and that by reason of undue influence of others, appellant had wasted or was going to waste her personal estate valued at $65,000. The application was granted without a declaration that appellant was incompetent and without notice to appellant. Upon notice, appellant contested the application asserting she was not incompetent, and moved the court to set aside the order of appointment. When the contest came on for hearing on January 15, 1976, the parties announced to the court that they had compromised and settled their differences and agreed to an arrangement (which we need not detail) concerning certain certificates of deposit owned by appellant; agreed that appellant is competent to handle her estate; agreed that the attorneys for both the guardian and appellant would be paid out of appellant’s estate; and that “funds belonging to [appellant] in excess of the court costs and attorneys fees be restored to her.” The court announced that it was approving the agreement and, in effect, ordered the agreement entered as the judgment of the court. However, at that time'the amounts of attorneys’ fees to be awarded were unliquidated and uncertain, were not agreed upon by the parties, and were not set by the court. The order was not reduced to writing.

The record shows these undisputed facts: Appellant is 77 years of age. She has been a widow for 20 years. She works nine hours every day six days per week. She has worked for twenty-five years. She is never ill. She lives alone and cares for herself and her home completely by herself. She was in the process of personally painting her house when she was served with citation in this case. She and her husband built the house. Another suit is pending in another court between her and some of her relatives over the ownership of the house. Certain of her relatives (including appellee) claim that other relatives are exerting undue influence toward appellant relating to her personal property which consists of cash, certificates of deposit, and savings and cheeking accounts. All this property is the result of appellant’s personal earnings.

On March 16, 1976, appellee filed a motion to require “Willie Pearl Barr, Incompetent,” her attorney, and others, to comply with “the order of January 15, 1976,” by turning over to appellee certain certificates of deposit for liquidation and payment by him “of all expenses, costs and legal fees of this temporary guardianship.” The motion was heard on April 23, 1976. At this hearing, appellant vigorously contested the payment of any attorneys’ fees or expenses of the guardianship from her estate asserting she.was not incompetent and no service had been rendered her by the temporary guardianship, and stated she did not want to relinquish ownership of her certificates of deposit. The court then determined for the first time the amount of attorneys’ fees and guardian’s expenses to be awarded under the purported agreed judgment, and set those fees and expenses in the total amount of $15,737.73. The court then signed and filed the judgment now under attack which recites that it is based upon a settlement agreement of the parties approved by the court on January 15,1976; orders appellant to turn over certain certificates of deposit to appellee; recites “that the court will not find [appellant] incompetent; and there will be no finding of incompetency”; awards attorneys’ fees of $10,386.00 and $5,147.00, and guardian’s expenses of $204.73; and orders that “after all costs, expenses and attorneys’ fees have been paid by the Temporary Guardian out of the funds of the Estate of Willie Pearl Barr, the Temporary Guardian shall turn over all remaining funds to Willie Pearl Barr . . ."

A final judgment cannot be ren-. dered on a settlement agreement if consent of one of the parties is lacking. “It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.” Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (1951). Additionally, such judgment must be in strict or literal compliance with the agreement. Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292 (Tex.Sup., 1976).

Although the judgment is dated January 15, 1976, and recites that it was signed on April 23, 1976, the record shows without question that it was not actually rendered as to the amounts of attorneys’ fees awarded in it until the latter date. It must be reversed for two reasons: First, it is clear under the record that appellant never agreed to the amounts of attorneys’ fees allowed by the court. Second, before the judgment was finally rendered the court knew that appellant had disavowed her agreement to pay attorneys’ fees and that she had expressed dissatisfaction with the agreement to give up ownership of her certificates of deposit. We notice, also, that although the judgment recites a finding that appellant is not incompetent, it does not contain the express adjudication that she is competent agreed upon by the parties as a part of their settlement.

We do not rule upon appellant’s remaining contentions.

The judgment is reversed and this cause is remanded to the trial court..


author: CLAYTON, Justice.

text:
    Harold Lawrence SPENCER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 10, 1977.

      John Tim McCall, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

The Jefferson County Grand Jury returned a six-count indictment against the appellant, Harold L. Spencer, charging him with the kidnapping, first-degree robbery and first-degree rape of Marilyn Louden occurring on February 7,1976, and with the kidnapping, first-degree rape and first-degree sodomy of Deborah Wise occurring on April 17, 1976. Following a jury trial, Spencer was acquitted of those charges involving Marilyn Louden but convicted of those involving Deborah Wise. He was sentenced to 20 years’ imprisonment on each such charge, the sentences for kidnapping and rape to run concurrently, and that for sodomy to be served consecutively to the two other charges. Five allegations of error are raised by his appeal from that conviction.

The testimony presented at trial was in agreement in showing that appellant, a part-time policeman and security guard, was wearing a police uniform and driving a car equipped with flashing blue lights when he stopped Deborah Wise for the ostensible purpose of giving her a speeding ticket. The testimony as to the subsequent events, however, was in disagreement. The victim testified that after appellant asked to see her driver’s license, he ordered her to “scoot over” and she “wouldn’t get hurt”, then took his pistol out, got behind the wheel of her car, drove it a short distance to a darker location within the parking lot in which she had stopped, removed her clothing, forced her to engage in oral sex, and raped her. Her testimony does not indicate her confinement to be of any significant length greater than that incidental to the commission of the crimes alleged. Appellant’s testimony, on the other hand, admitted his having sexual relations with the victim, but denied his using force or threats in doing so, claiming instead that she knew him from an apartment complex at which they had both once been residents and consented to the acts. Appellant therefore argues that since his testimony contradicted that of the victim as to the element of “forcible compulsion”, which must be present for convictions for first-degree rape and sodomy, he was entitled to an instruction on the lesser included offense of sexual misconduct, defined by KRS 510.140 as “. . . sexual intercourse or deviate sexual intercourse with another person without the latter’s consent.” We disagree. In Cooper v. Commonwealth, Ky., 550 S.W.2d 478 (rendered January 28, 1977), we held, after discussing the language of KRS 510.140 and its accompanying commentary, that this statute is not applicable where both parties are over 21 years of age and neither was physically or mentally incapacitated at the time of the occurrence. This being the situation presented herein, we conclude there to have been no error in the trial court’s refusal to instruct the jury on the offense of sexual misconduct as sought by the appellant.

Appellant’s next allegation of error concerns the trial court’s admitting into evidence the testimony of a Kentucky State Police Crime Laboratory technician who had earlier submitted to the Jefferson County Police Department a report of the results of scientific tests performed on various bodily samples taken from the appellant and the prosecuting witnesses. Appellant argues that since he was not furnished this report until the day of trial, although he had previously requested it through a motion to produce, inspect and copy pursuant to RCr 7.24, the admission of the technician’s testimony elaborating on the contents of the report was prejudicial error. We have studied the results of the tests as reported by the technician in his testimony and cannot find the untimely furnishing of this report to appellant’s counsel to have so prejudiced his right to a fair trial as to warrant reversal of his conviction. As we read these findings, they are inconclusive in regard to connecting appellant to the crime against Deborah Wise. Moreover, the record of the in-chambers hearing on appellant’s objection to the introduction of this testimony does not establish any intentional withholding of the report from appellant’s counsel by the attorney for the Commonwealth. Rather, that transcript establishes that although the report was received by the police department approximately two weeks earlier, it was not made available to either side prior to trial, the Commonwealth first becoming aware of its existence during a telephone conversation occurring the morning the trial began. We therefore conclude no error of reversal magnitude was committed by the trial court’s admission of the technician’s testimony into evidence.

The third assertion of error is that the trial court erred in trying together the charges involving the two separate prosecuting witnesses and incidents. Appellant claims there should have been granted a severance of the counts of the indictment pursuant to RCr 9.16, arguing the cumulative effect of the evidence and the manner in which it was presented operated to confuse the jury and prejudice his right to a fair trial. We cannot agree. The granting or denial of a motion for separate trials is a discretionary function of the trial court. A conviction resulting from a trial in which such a motion has been denied will be reversed on appeal only if the refusal of the trial court to grant such a severance is found to amount to a clear abuse of discretion and prejudice to the defendant is positively shown. Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972). In determining whether a joinder of offenses for trial is prejudicial, a significant factor to be considered is whether the evidence of one of the offenses would be admissible in a separate trial for the other offense. If the evidence is admissible, the joinder of offenses, in most instances, will not be prejudicial. Marcum v. Commonwealth, Ky., 390 S.W.2d 884 (1965). It is well established that evidence of the commission of crimes independent of those for which the accused is on trial is not admissible for the purpose of showing the commission of the particular crime charged unless the evidence of the other offenses has some special connection to the crime charged. Keith v. Commonwealth, Ky., 251 S.W.2d 850 (1952). To be admissible, in other words, the evidence must be relevant to the issues in some manner other than in proof of a general criminal disposition in the accused to commit the particular crime. For example, as was recognized in Ringstaff v. Commonwealth, Ky., 275 S.W.2d 946, 949-950 (1955), evidence of an independent crime “. . .is competent when it tends to establish identity, or knowledge of guilt, or intent or motive for the commission of the crime under trial, or malice, or when other offenses are so connected or interwoven with the one being tried that they cannot well be separated from it in the introduction of relevant testimony, or when the independent offense was perpetrated to conceal the crime for which the accused is on trial, or committed by novel means, or in a particular manner, or is a part of a plan or system of criminal action.” In the present case, the evidence relative to the two separate criminal occurrences showed each to have involved the same unique circumstances and modus operands Each victim was stopped by a man wearing a police uniform driving a police type of vehicle equipped with flashing blue lights, and was asked to produce her driver’s license, giving the appearance that she was about to receive a citation for speeding. A pistol was used to force the victim in each instance to submit to sexual intercourse. Each was ordered to move to the passenger seat of her vehicle to permit the officer to drive the car to a less conspicuous location, where the sexual attack ensued. It would thus appear that the evidence of either of the offenses would have been admissible in a separate trial for the other. We thus conclude no prejudice to the defen-dent resulted from the trial court’s refusal to grant separate trials. We do not feel the jury’s verdict reflects its being confused by the evidence presented in proof of the separate occurrences, since the appellant was acquitted of the charges stemming from the first incident and convicted only of those involving the second. Our recent decision in Romans v. Commonwealth, Ky., 547 S.W.2d 128 (rendered February 18, 1977), in which we held the joinder for trial of two separate rape charges occurring on separate dates and involving different victims to have been prejudicial error, is distinguishable. In that case, the evidence relative to the two charges showed no similarity in circumstances suggesting a characteristic pattern or modus operandi, so that the evidence of one would have been of no probative value in a separate trial for the other.

By appellant’s fourth assignment of error, he argues the trial court improperly admitted into evidence an illegally obtained “confession” to the offense committed against Deborah Wise, claiming the damaging statement was made after he had been continuously questioned without the benefit of counsel. We have reviewed the statement in question and because we cannot in any way classify it as a confession to the crimes charged, we cannot hold its admission into evidence merits reversal of appellant’s conviction. At most, the statement is an admission by appellant that he had in fact had sexual relations with Deborah Wise after causing her to stop her vehicle, that she was at first “nervous” and reluctant to respond to his advances, but that she ultimately acquiesced in the acts and said she did not intend to report the incident to appellant’s superiors. The statement thus parallels the theory advanced by appellant’s testimony at trial, so that no error can be found to have been committed by its introduction into evidence.

In regard to the final alleged error, the Commonwealth has conceded that in light of KRS 509.050, which provides an exemption from conviction for kidnapping where the defendant’s underlying criminal purpose is the commission of an offense defined outside KRS Chapter 509 and where his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, the conviction of appellant for kidnapping, in addition to his convictions for rape and sodomy, was in error. Pursuant to this concession, that conviction is hereby ordered reversed.

That portion of the judgment of conviction finding appellant guilty of the crimes of first-degree rape and sodomy is therefore affirmed, while that portion adjudging him guilty of kidnapping is reversed.

All concur.


author: STEPHENSON, Justice.

text:
    C. D. ADAMS et al., Appellants, v. Russell MARSHALL, Jr., et al., Appellees.
    Supreme Court of Kentucky.
    June 10, 1977.
    W. T. Ingerton, Swanger, Ingerton & Schneider, Lexington, for appellants,
    DarreU B. Hancock, Fowler, Measle & Bell, Lexington, for appellees.
   STEPHENSON, Justice.

The sole question presented on this appeal is whether “canyon stone,” a cement product, complies with the restriction in a deed that the exterior of all buildings on the property must be of masonry construction. The trial court held that “canyon stone” is within the definition of masonry. We affirm.

The restriction in the deed is as follows:

“Such premises shall be used for residential purposes and the construction of one single family residence thereon, the exterior of which shall be of masonry construction and a garage or car-port which, if attached to the residence shall also be of masonry construction.”

On the first appeal, involving the same parties and this restriction, Marshall v. Adams, Ky., 447 S.W.2d 57 (1969), we held that aluminum siding construction clearly violated the restriction.

From our review of the record and the findings of the trial court, we see that “canyon stone” is a product made of cement and a blend of aggregates cast under high pressure in molds resulting in a rough, stone-like appearance.

Appellants argue that “canyon stone” did not exist as a product in 1956 when the deed restriction was executed, and that by masonry construction the parties meant construction of brick or natural stone. We can only say that if this is what the parties intended they should have said so. We do not consider the restriction to be ambiguous. We are of the opinion that masonry construction means what it says, any construction requiring the services of a mason. See 55 C.J.S. Masonry, p. 979, where masonry is defined as follows:

“A generic and therefore an inclusive word, meaning that which is built by a mason; anything constructed by a mason of the materials used by masons, such as stone, brick, tile or the like.”

Nor do we believe the restriction contemplated only products in existence at the time the restriction was executed. There is no such limitation in the language of the restriction. We hold that “canyon stone” construction is masonry construction.

In deciding that masonry construction did not include aluminum construction, Marshall went on to define masonry as “ ‘something built by a mason or masons, of stone, brick; brickwork or stonework.’ This is likewise the commonly understood meaning.”

Appellants argue that this language is a restricted definition of masonry adopted by this court. We do not so construe it in the context in which it was used. We regard the language only as illustrative of the holding that “aluminum construction” is not masonry construction and not as an authoritative definition of masonry.

The judgment is affirmed.

CLAYTON, JONES, LUKOWSKY, PAL-MORE, STEPHENSON and STERNBERG, JJ., sitting.

All concur.

REED, C. J., not sitting.


author:
      PER CURIAM.

      STEPHENSON, Justice,

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. M. C. CLEM, Jr., Respondent.
    Supreme Court of Kentucky.
    July 1, 1977.
    Leslie G. Whitmer, Director, John T. Damron, Asst. Director, Frankfort, for complainant.
   PER CURIAM.

In this disciplinary proceeding, M. C. Clem, Jr., a member of the bar, was charged by the Kentucky Bar Association with unprofessional and unethical conduct calculated to bring the bench and bar into disrepute, RAP 3.130.

The charges involve representation of three clients in litigation and are as follows.

First, in representing a client in a workmen’s compensation case, respondent failed to appear at depositions and failed to meet appointments with his client. When the Workmen’s Compensation Board found against his client, respondent falsely told his client he would appeal to the circuit court and falsely told his client an appeal had been taken. When his client was told by another lawyer that no appeal had been taken, respondent failed to comply with a request for the file to be given to the other lawyer or give any assistance to protect the interests of his client. Further, respondent had lent money to his client, thereby taking a proprietary interest in the outcome of the case.

Second, in representing a client, the wife in a divorce action, respondent failed to make an effort to discover the assets of the husband, and after advising his client to appeal from a judgment distributing their property, failed to execute a bond on appeal and did not file a brief, resulting in dismissal of the appeal. Further, respondent did not inform his client of the dismissal of her appeal. The trial court then by order directed the parties to settle the division of household furniture and appliances or subject them to a public sale, and respondent did not inform his client of this order. His client discovered the notice of public sale in a newspaper, and respondent falsely informed his client he knew nothing of the order and stated he would appear at the sale to represent her. He did not appear.

Lastly, in another divorce proceeding, respondent advised his client, the husband, that in the distribution of property he would receive one-half the furniture and title to a camper. Respondent then drafted a property settlement agreement giving all the household furniture to the wife and providing that his client pay to the wife one-half the value of the camper. Upon discovery of the mistake, respondent failed to take any action to correct the error. Respondent further falsely informed his client that a court injunction prohibited his wife from withdrawing any funds in a savings account. The wife withdrew one-half the savings, and respondent did nothing to protect his client’s interest in the savings account.

The respondent did not answer the charges or make any appearance. Consequently, the inquiry tribunal referred this matter to the board of bar governors of the Kentucky Bar Association. The board of bar governors found respondent guilty of unprofessional and unethical conduct, recommending disbarment.

The respondent has not made any attempt to mitigate the charges by filing a response here.

We agree with the board of bar governors that respondent is guilty of unprofessional and unethical conduct. It is with respect to the recommended penalty here that we must disagree. Our recent decisions in Kentucky Bar Association v. Vincent, Ky., 538 S.W.2d 39 (1976), Kentucky Bar Association v. Dillman, Ky., 539 S.W.2d 294 (1976), and Kentucky Bar Association v. Murphy, Ky., 549 S.W.2d 295 (1977), involve situations where the lawyer failed to attend to his clients’ business and made false statements to his clients with regard to actions taken by him in the proceedings. In each of these situations, we regard a suspension from the practice of law of one year as appropriate. Here, as demonstrated by the facts outlined above, the respondent is guilty of more aggravated conduct than that portrayed in Vincent, Dillman, and Murphy.

We are of the opinion that the circumstances presented here, in light of our recent decisions supra, warrant a suspension from the practice of law for a period of two years instead of disbarment. We recognize that a considered judgment must be made on each set of facts presented in charges of this type, and having reexamined Vincent, Dillman, and Murphy, we conclude in those situations we were perhaps too lenient. Prospectively, we would say that a state of facts such as presented here portrays such reprehensible conduct as to warrant disbarment.

The public has a right to expect from a member of the bar fair dealing with his client, fidelity to his client’s interests, and a high degree of competency. We could not tolerate less without ourselves assuming responsibility for such lack of high ethical performance.

Accordingly, it is ordered that respondent be and he is hereby suspended from the practice of law for a period of two years in this Commonwealth, and he is required to pay the cost of this proceeding.

REED, C. J., and CLAYTON, LUKOW-SKY, and STERNBERG, JJ., concur.

STEPHENSON and JONES, JJ., dissent.

PALMORE, J., not sitting.

STEPHENSON, Justice,

dissenting.

I respectfully dissent from the majority opinion.

I regard this record as a flagrant example of unprofessional and unethical conduct. The circumstances presented here violate every concept of the fidelity owed by a lawyer to his clients’ interests. Respondent’s misrepresentation to his clients and his neglect of attention to their interests is so reprehensible as to dictate permanent disbarment.

In my opinion, the conduct here goes so far beyond Vincent, Dillman, and Murphy that it warrants the penalty recommended by the board of bar governors.

“The measure of good faith required of an attorney in dealing with his clients is far higher than that exacted in the ordinary business transaction. The relationship is one of trust and confidence, and it is the duty of the courts to preserve it on a high plane of moral responsibility for the protection of the public.” In re Gilbert, 274 Ky. 187, 118 S.W.2d 535, 537 (1938).

I would accept the recommendation of the board of bar governors and order permanent disbarment.

JONES, J., joins in this dissent.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. D. Gene DILLMAN, Respondent.
    Supreme Court of Kentucky.
    July 1, 1977.
    Leslie T. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
   PER CURIAM.

This is the second chapter of the sordid professional biography of D. Gene Dillman. The first chapter will be found in Kentucky Bar Association v. Dillman, Ky., 539 S.W.2d 294 (1976).

The Inquiry Tribunal of the Bar Association has charged:

I

In or about 1970, Respondent Dillman was employed by Wayne L. Huff whose last known address is 910 Madison Avenue, Wauconda, Illinois, for representation on a workmen’s compensation claim. Mr. Huff had been examined by at least four physicians in regard to his injuries, and Respondent had some of their reports. In or about June, 1972, a hearing in regard to the said claim was held and Respondent and Mr. Huff were present. Respondent promised to keep Mr. Huff informed but failed to do so. Mr. Huff’s telephone calls and letters to Respondent were not answered.

II

Within the same facts and circumstances as contained in Count I above, Mr. Huff contacted Illinois attorney Robert 0. Drtina to discover from Respondent the status of the claim. In September, 1974, Mr. Drtina was orally told by Respondent in words to the effect that Mr. Huff had “assigned all benefits under his claim to the Social Security Board.” Said statement by Respondent was false and deceitful. False because no such assignment exists and deceitful because the Workmen’s Compensation Board opinion and order entered January 29,1973, denying Mr. Huff’s claim was not disclosed to Mr. Huff.

Ill

Within the same facts and circumstances as related above in Count I and II, the Workmen’s Compensation Board in its opinion and order found it significant that Mr. Huff mentioned the names of some seven physicians but none were called to testify, and further that Mr. Huff failed to show probative evidence to prove his claim. Said decision is indicative of Respondent’s failure to competently represent Mr. Huff, as well as Respondent’s neglect of Mr. Huff’s interests.

Dillman received notice of these charges and has not availed himself of the opportunity to defend either before the Bar Association or this court. The Board of Governors has found him guilty as charged and recommended permanent disbarment. We dispose of the case pursuant to RAP 3.410.

We are of the opinion that Dillman is guilty of the unethical and unprofessional conduct alleged and that such conduct is calculated to bring the bench and bar into disrepute. Considering that this conduct occurred chronologically between Counts 1 and 2 of the first Dillman case and the policy which we announced in Kentucky Bar Association v. Clem, Ky., 554 S.W.2d 360 (1977), we are satisfied that the appropriate punishment is suspension from the practice of law for one year, to run consecutively to his present suspension, and payment of the costs of this proceeding.

It is so ordered.

All concur.


author: PALMORE, Justice.

text:
    Samuel JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 29, 1977.
    Jack Emory Farley, Public Defender, Gary E. Johnson, Asst. Public Defender, Frankfort, for appellant.

      Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

Samuel Jones appeals from a judgment sentencing him to life imprisonment pursuant to a verdict finding him guilty of murder. Cf. KRS 507.020, 532.060(a).

On Monday, December 23, 1974, the body of Ted Herring was found in his home at Paducah, where he lived alone and operated a loan business. He had been trussed up and shot in the head with two .22-caliber bullets which later were determined to have been fired out of the type of pistol generally called a “Saturday-night special.” From the physical evidence it appears virtually certain that more than one person participated in the crime.

Herring was last seen alive about 5:15 P.M. on Sunday, December 22, 1974, by his secretary, Joanne Moore, with whom he had attended a show that afternoon. When Mrs. Moore arrived for work on Monday morning she was unable to gain entrance to the house and eventually called the police. When she and the investigating officer got inside they found Herring dead on the floor with a pillow over his face. His safe was open and about $1,000 in cash, three pistols, a watch, several items of jewelry, and Herring’s wallet were missing. All of the property stolen belonged to Herring personally. As Mrs. Moore put it, “None of the pawn stuff was taken.”

Herring was a collector of old coins and currency, and among the items of cash stolen was an “oversize” $500 bill. The missing pistols consisted of two .38-caliber snub-nose Smith & Wessons and a .25-caliber Colt. The critical evidence linking the appellant Jones to the crime is that on January 17, 1975, 26 days after the murder of Herring, he had one of these Smith & Wesson revolvers (which for the sake of convenience we shall call “J70”) in his possession and shot one Helen Broyles with it.

Several months before his death Herring had shown Mrs. Moore a list of the serial numbers and pointed out the guns he had. He kept J70 in a shoulder-holster hanging from a hook in his bedroom. Mrs. Moore was positive that he had not disposed of any of these weapons. She said that she saw J70 hanging at its customary place on December 22, 1974, on which day they had taken a complete inventory. When asked if she was sure J70, which was introduced at the trial, was the same gun she had seen hanging from the wall on December 22, 1974, she replied, “I am certain.” It was established that Herring had purchased J70 from one Marvin Thompson, who in turn had brought it from George Noles, a dealer in guns. Thompson testified that he had seen J70 on one occasion after he had sold it to Herring, at which time “Mr. Herring had this white [wide?] trigger put on it.”

The foregoing evidence was, in our opinion, amply sufficient to justify a conclusion by the jury that J70 was in fact stolen from Herring’s place at the time of the murder. We now proceed to the evidence placing it in the hands of Sammy Jones on January 17, 1975.

Jones had a love affair going with a girl named Cheryl Matchem, who lived with her mother, Darlene Shackleford. He visited there “practically every day” before going to work at the Club 400, which was operated by his mother and father. He carried a pistol in his coat pocket, which he usually turned over to Mrs. Shackleford to keep until he left for work. Late Friday night or early Saturday morning of January 17-18, 1975, he came to Mrs. Shackleford’s home and placed the gun in the pocket of her robe. As appears from a signed statement later given by Sammy to the police, he had just shot Helen Broyles in his apartment, and after taking the gun to Mrs. Shackleford he went to the VFW Club, had a drink, returned to the Shackleford apartment, and then went home to call the police. Early on Saturday morning Mrs. Shackleford, after receiving a telephone call from the police station, put the gun in a paper bag and took it to a neighbor’s apartment. A little while afterward, however, she retrieved it and later in the day called Sammy’s mother, Ruby Jones, and said she had a package for her. Mrs. Jones then came over and got it, drove to a deserted area near Kentucky Dam, and threw the bag into the weeds without having looked to see what was in it. Some time thereafter Mrs. Jones accompanied a city detective to the scene and pointed out where she had disposed of the bag, and he recovered it. The gun found in the bag was J70.

In the second of two signed statements given to the police Sammy said, “The .38 pistol I used to shoot Helen Broyles was bought by me from a guy named Billie who came into the Club at times when he was in town, and I bought it from him before December 1,1974. I gave him $40.00 for it. I’ve had it all the time since then.” “Billie” was never further identified.

Beyond question, this evidence proves that on January 17, 1975, Jones had possession and was claiming ownership of J70, and if in fact it was taken from Herring’s place on December 22, 1974, as the jury could reasonably have believed, it follows that Jones’ statement as to when and how it came into his possession was untrue.

The only other items of evidence tending in any way to connect Jones with the crime were as follows:

(1) On November 20, 1974, he purchased a .22-caliber “Saturday-night special” at a pawn shop in Paducah.

(2) After signing the aforementioned statement pertaining to his acquisition of J70 Jones told the interrogating police officer and the Commonwealth’s Attorney that he wanted to use the telephone. According to the officer’s testimony, “He was asked by the Commonwealth’s Attorney if he was protecting someone. He nodded his head and did not make a verbal reply. He repeated his request to use the phone, and the Commonwealth [sic] Attorney advised him that he was going to leave the room, and any further statements that he wanted to make, he could make to me . . . . I asked him who he was going to call, and he said his father. I asked him what he was going to say to his father, and he said he was going to ask him how much a $500 bill was worth. There was no further discussion.”

Jones did not take the witness stand. His defense was an alibi. Mrs. Shackleford and her daughter, Cheryl Matchem, swore that he was in their apartment from Sunday afternoon, December 22, 1974, until the middle of the next morning. Cheryl said that she and Sammy had attended a dance on Saturday night and arrived at her home at about 2:30 A.M. Both she and her mother testified that Sammy stayed there the rest of that night, all of Sunday except for a short trip home during the afternoon to change clothes, and all Sunday night. Mrs. Shackleford recalled that the dance had been held at the Civic Center under the sponsorship of Tommy Massey and was a “black” dance. In rebuttal, however, the Commonwealth proved the Civic Center dance hall had been leased for the night of December 21, 1974, to the Fraternal Order of Police for a policemen’s ball, and that the Massey-sponsored dance had taken place on Christmas night, December 25, 1974.

As may be observed from the foregoing summary, the evidence of guilt was somewhat short of spectacular. Yet we think it was sufficient to justify the verdict. The facts the jury was authorized to find were (1) J70 was stolen from Herring’s place at the time of the murder on the night of December 22, 1974; (2) Jones had possession of J70 on January 17, 1975, claiming he had bought it prior to December 1, 1974; (3) this claim that he had acquired J70 prior to Herring’s death was false, and was made in an attempt to conceal the fact that Jones had taken it on the night of the murder; and (4) Jones owned a pistol of the same type and caliber as the murder weapon. That these findings would have justified convicting Jones of stealing the gun at the time and place of the murder is an elementary proposition. Cf. Ralya v. Commonwealth, Ky., 495 S.W.2d 506, 507 (1973); Jones v. Commonwealth, Ky., 453 S.W.2d 564, 565-566 (1970). The robbery having been the obvious purpose of the murder, it follows necessarily that if the evidence was enough to identify the robber it was enough to identify the murderer.

“If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.” Trowel v. Commonwealth, Ky., 550 S.W.2d 530, 533 (1977). Though Mrs. Shackleford and Mrs. Jones gave testimony from which the jury could have believed that Sammy probably had the J70 for some time before the Herring robbery and murder, it was not bound to believe it. The sufficiency of the evidence to justify a conviction must be tested in terms of the evidence most favorable to the Commonwealth. Turner v. Commonwealth, 268 Ky. 311, 104 S.W.2d 1085 (1937). Considered in that light, we hold the evidence sufficient.

The only point raised on the appeal other than the sufficiency of the evidence to convict is that the admission of Jones’ signed statements was a prejudicial error.

The first statement was taken by officer Ronnie Tucker early in the morning of January 18, 1975. It related that following an argument with Helen Broyles in his apartment the previous evening Jones shot Helen and then went to the home of Darlene Shackleford, where “I told her that I had shot Helen and gave her the gun.”

The second statement was taken by Detective Wallace Cunningham, in the presence of the County and Commonwealth’s Attorneys, on the afternoon of January 20, 1975. It consisted only of the information we have already quoted to the effect that the “.38 pistol I used to shoot Helen with was bought by me from a guy named Billie,” etc.

Following the reception of each of these statements into evidence the trial court admonished the jury as to the limited purpose for which it was to be considered. Jones does not question the form or substance of the admonitions, but contends that his objections to the evidence should have been sustained and that it was error for the trial court to deny his motions for a mistrial after the jury had heard the statements read.

The general proposition that evidence of other crimes is not admissible is somewhat akin to the rule against hearsay evidence, in that each is said to have a good many “exceptions.” Fundamentally, evidence of criminal conduct not connected with the charge being tried is character evidence, which is relevant as indicating a defendant’s criminal disposition and is admissible under the European continental system, but has been generally excluded under the English system for more than 300 years. Wig-more on Evidence (3d ed.), § 194. This exclusion is therefore itself an exception from the basic principle that all probative evidence relative to the issues being tried is admissible, and it does not apply when the evidence is relevant to an issue other than character.

“This eligibility of evidence for one purpose, despite its ineligibility for another, is illustrated throughout the whole law of evidence . . . . In scores of these instances the principle is illustrated and established. Our law of evidence, as a workable system, would be impossible without it.

“So far, then, as this general principle is concerned, the fact that a defendant’s acts of misconduct would be inadmissible as showing his bad character does not in the slightest stand in the way of receiving the same acts in evidence if they are evidential for other purposes.” Wigmore on Evidence (3d ed.) § 215.

“Is there, then, any reason why, for this particular class of facts, an exception should be made to the general canon of multiple admissibility, and facts relevant for some other purpose be rejected because they would be inadmissible if offered to show a bad character?

“In the great majority of instances in which such an exception has been sought to be established, the facts of conduct thus objected to are crimes; for obviously such conduct presents the clearest case in which the evidence is obnoxious to the character-rule, and the case in which the fact, if offered to show character, would most tellingly violate the spirit and the reasons of that rule. The question thus in effect becomes: Is the criminality of conduct a reason for excluding that conduct (when offered against an accused person) if it would be otherwise relevant and admissible?

* * * * * *

“This much attention to the suggested exception is called for, because the effort to secure it and the inclination to ask for it seems to be so persistent and so common at the Bar; and not because its validity has ever been recognized or implied. On the contrary, no fallacy has been more frequently or more struck at by denial, by argument, by explanation, on the part of the Courts. It has been rebuffed, rebuked, repudiated, discredited, denounced, so often that it ought by this time to have been abandoned forever. That it does still crop up again from time to time is apparently due in part to the inherent difficulty of distinguishing between conduct as showing character and conduct as showing other things; but also to the failure to appreciate that the rejection of past conduct by the character-rule is never due simply to the incidental circumstance that it is misconduct, but to the fact that it is offered to show character and that herein consists its impropriety. If there is any other material or evidential proposition, for which it is relevant, and if it is offered for that purpose, it is receivable, and its quality as misconduct or crime does not stand in the way.” (Emphasis added.) Id., § 216.

We quote these passages from Wig-more mainly to emphasize the essential perspective in which the exclusionary rule against evidence of other crimes should be viewed. That evidence otherwise admissible is not made inadmissible merely because it shows an unrelated crime has been the established rule in this state from time immemorial. See, for example, Smith v. Commonwealth, Ky., 366 S.W.2d 902, 906 (1963), a capital case in which the owner of a liquor store was shot and killed with a .32-caliber pistol during an armed robbery. In addition to the defendant’s written statement identifying a .32-caliber revolver as “the one that came out of the Meadowthorpe Liquor Store when Buddy (Martin) and I held it up” two days prior to the murder, the trial court permitted one of the owners and a clerk of the Meadowthorpe store to identify the gun as the one taken in that robbery. In disposing of the appellant’s argument that the identification of the pistol as having been stolen in a previous robbery violated the rule excluding evidence of othér crimes, this court pointed out that the evidence was competent for two reasons, (1) because it tended to establish the defendant’s possession of the fatal weapon and (2) because it showed a plan or purpose. The rule of evidence was stated as follows:

“Appellant complains that such evidence is violative of the rule prohibiting evidence of the commission of other crimes by the accused. Of equal application to the rule insisted on by appellant is the rule that all evidence which is pertinent to the issue and tends to prove the crime charged against the accused is admissible, although it may also prove or tend to prove the commission of other crimes by him or to establish collateral facts. The fact that it may tend to prejudice the accused in the minds of the jurors is not a ground for its exclusion.”

To the same effect see Walker v. Commonwealth, Ky., 426 S.W.2d 467, 469 (1968); Bach v. Commonwealth, Ky., 406 S.W.2d 727, 728 (1966); Shepperd v. Commonwealth, Ky., 322 S.W.2d 115, 117 (1959); and Ringstaff v. Commonwealth, Ky., 275 S.W.2d 946, 949 (1955).

Jones cites Quarles v. Commonwealth, Ky., 245 S.W.2d 947 (1952), for the proposition that even when the evidence of an independent offense “may have some tendency to prove the commission of the crime charged,” it is inadmissible because its probative value is greatly outweighed by its prejudicial effect unless the independent offense has some close relationship to the crime charged. Though it may be conceded that when the evidence in question is relatively unimportant, or does not have much probative value, the policy reasons for excluding it may outweigh its value to the prosecution, we do not construe the expression of the rule in Quarles as meaning literally that there must be a close relationship between the two offenses as such. As a matter of fact, that opinion went on to say that there is a close relationship when the other offense “tends to establish identity, motive, intent or design or a plan to commit the offense charged,” and upheld the admission of testimony that the murder weapon had been stolen by the defendant from the witness because it “identified the defendant’s possession of the fatal weapon and showed a plan or purpose of using it to obtain money by force.” Id., at 245 S.W.2d 948, 949.

In the instant ease the two offenses were not related in the sense that they reflected a common plan or purpose, but they were related in that the gun used by Jones to shoot Helen Broyles played a role in both offenses and served to identify him as a participant in the Herring robbery and murder. This probative function was sufficient alone to legitimate the evidence. It was not necessary that it tend also to suggest a common design or purpose in the commission of the two otherwise unrelated offenses. In short, the two offenses need not always be “interwoven,” as that term is ordinarily understood. A relevant link of significant probative value is enough.

Nevertheless, Jones contends that the evidence consisting of his statements to the police was unnecessary, because even without them Darlene Shackleford’s testimony was sufficient to put the gun in his hands on the night of January 17,1975. Actually, however, the first statement already had been introduced in evidence by officer Tucker when Mrs. Shackleford testified. Moreover, though Jones refers to her testimony as “uncontroverted,” when the Commonwealth closed its case in chief it was by no means a foregone conclusion that Jones would not testify, or that Mrs. Shackle-ford’s testimony would not in some manner be controverted or avoided through the testimony of other witnesses. With regard to the second statement, introduced by Detective Cunningham, that Jones claimed ownership and possession of the gun for some length of time, even prior to the death of Herring, constituted significant information that was not embraced in the Shackleford testimony.

We are of the opinion that the trial court did not err in admitting the statements, but in so holding we do not wish to encourage the unnecessary reception of such evidence. When that portion of a statement that is admissible for a legitimate purpose can be fairly extracted from that which is not admissible, only the part so extracted should be imparted to the jury. In this particular instance, however, it will be observed that in each of his statements Jones identified the gun solely by referring to it as the gun with which he had shot Helen Broyles. Hence it was difficult to extract the identification of the gun from either statement without including the explanatory reference to the shooting of Helen Broyles. Counsel for Jones could have agreed to a stipulation that the statement or statements included an acknowledgement by Jones that the gun in question was in his possession on January 17, 1975, and that he claimed having owned it since before December 1, 1974. Indeed, the transcript indicates that the trial court made a sincere effort to find a way in which the competent portions of the statements could be introduced without mention of the Broyles shooting. Under the circumstances, we think it is incumbent on counsel either to seek some reasonable accommodation, such as a stipulation, or suffer the consequence of having the bad come in with the good.

There is one other point worth notice with regard to the Broyles shooting. It has been assumed for purposes of the argument that the information revealed by Jones’ statements was prejudicial, but under the unique circumstances of the ease it may have helped more than it hurt, because in its absence the jurors probably would have thought that the efforts to conceal J70 resulted from its connection with the robbery and murder of Herring.

The judgment is affirmed.

All concur.