text:
    Eulyse E. BLAIR, Plaintiff-Appellant, v. Edward JACKSON and Roxann Jackson, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Oct. 1, 1973.
    Certiorari Denied by Supreme Court Jan. 7, 1974.
    Earl Pat Davis and H. C. Tanner Davis, Memphis, for plaintiff-appellant Eulyse E. Blair.
    John J. Thomason, Joseph C. McCarty, III, Memphis, for defendants-appellees Edward Jackson and Roxann Jackson; Thom-ason, Crawford & Hendrix, Memphis, of counsel.
   CARNEY, Presiding Judge.

Plaintiff below, Eulyse E. Blair, has appealed and assigned error to the action of the lower Court in directing a verdict in favor of the defendants at the conclusion of all the proof. The plaintiff brought suit for personal injuries sustained on June 11,1970, when a white German Shepherd dog named Casper kept in the defendants’ back yard jumped to the top of a four-foot chain link fence and bit or tore a major portion of the plaintiff’s left ear from his head. The plaintiff was not in the back yard with the dog but was in the front yard of the defendants’ home looking over the fence for plaintiff’s ten-year-old son. Plaintiff was standing near the chain link fence when the dog suddenly jumped and bit him as above set out. Plaintiff did not see the dog until after he had been bitten. The defendants contended that the plaintiff Blair actually leaned over the fence and was bitten but the plaintiff testified affirmatively that he was not leaning over the fence. Whether he was or was not leaning over the fence became a question for the jury.

The home of the appellees, Mr. and Mrs. Jackson, faces east on University Street. Immediately to the north of their residence is the residence of Mr. and Mrs. Joe Havens. The Havens residence also faces east on University Street. The distance between the Jackson house and the Havens house is approximately ten feet with a four-foot high chain link fence connecting the two houses at the rear corner of each. There is a gate to the Havens’ back yard. A similar fence running from the connecting fence back westward separated the property lines of the two lots.

The plaintiff, Eulyse Blair, resided on University Street about 200 feet south of Mr. and Mrs. Jackson. On the afternoon in question, Mr. Blair had gone up to the home of Mr. and Mrs. Havens looking for his ten-year-old son being of the impression that the son was playing in the Havens’ back yard. Plaintiff walked from University Street up the driveway of the Havens’ home and then walked between the Havens’ home and the Jacksons’ home on a well-worn path used, without objection on the part of Mr. and Mrs. Jackson, by people using the gate to enter the Havens’ back yard. Neighborhood children often played in the Havens’ back yard. Mr. Blair reached the gate entering the back yard of the Havens’ property. He did not enter the Havens’ back yard but stepped to his left and across the property line a couple of feet over on the property of Mr. and Mrs. Jackson for the twofold purpose of getting a better look into the back yard of the Havens’ property for his son and also to avoid a small dog owned by the Havens.

Plaintiff testified that he did not see the dog before he was bitten but only heard a growl at or about the time he was struck from the left rear. There were no signs on the Jackson property to beware of the dog and no signs to keep off the property of the Jacksons, either front or back yard. In 1969, the dog, Casper, had tried to bite the garbage collector, Mr. Bowman, while he was picking up the garbage at the Jacksons’ home and oftentimes the dog would lunge at the fence when Mr. Bowman was picking up garbage at the house next door. On at least one occasion, Mr. Bowman discussed with Mrs. Jackson the fact that the dog would bite; that he was afraid of him. Mrs. Jackson insisted to Mr. Bowman that the dog would not bite. On one occasion prior to the time Casper bit the plaintiff, young Eddie Havens was bitten or scratched by the dog, Casper. Mr. Jackson learned about it and discussed the matter with Eddie Havens’ parents and was assured that Eddie was not harmed by the incident.

The residence of Mr. and Mrs. Bobby Joe Key backed up to the Jackson and Havens lots. His Honor the Trial Judge excluded testimony by the neighbor, Mrs. Key, that she had seen the dog, Casper, attacking a young girl named Marie Stone through the wire fence while Marie Stone was playing in Havens’ back yard very much frightening the child. The Court also excluded the testimony of Mr. Key that the dog, Casper, had been seen to jump a four-foot chain link fence into the back yard of the Keys. Mrs. Key also testified that sometimes when Casper was barking and lunging at Mrs. Key through the fence, Mr. Jackson would come back and tie the dog up. Mr. and Mrs. Jackson denied this testimony. Mr. Key testified that the dog was “sneaky” and would crouch and creep along the fence and then suddenly spring forward toward the fence and bark.

At the conclusion of all the proof His Honor the Trial Judge held that the plaintiff was an inadvertent trespasser and under the authority of Bramble v. Thompson, 264 Md. 518, 287 A.2d 265, and Missio v. Williams, 129 Tenn. 504, 167 S.W. 473, the defendants’ motion for a directed verdict should be granted.

It was and is the contention of the defendant landowners, Jackson and wife, that they are not liable for injury done by their dog to a trespasser, even though the trespass was inadvertent, so long as their dog was confined on their property. It is the contention of the plaintiff Blair that Mr. and Mrs. Jackson are liable if they harbored or kept an animal which they knew to be vicious, notwithstanding the fact that the dog was kept confined and notwithstanding the fact that the plaintiff was a trespasser. Defendants insist that the law of Tennessee does not recognize the right of a trespasser to recover from the owner of the property if the trespasser is injured by a confined domestic animal, even though the domestic animal may be known to have vicious propensities.

In the case of McAbee v. Daniel, 60 Tenn.App. 239, 445 S.W.2d 917, this Court held a 15-year-old defendant liable in damages when the dog which she had on a leash while attending a soap box derby in Jackson, Tennessee, bit the plaintiff. The minor defendant had been warned by the Chief of Police not to let the dog bite anybody and to be careful because of the large crowd and the extremely hot weather. In that case, there was no proof that the dog had ever tried to bite anyone, though there was some evidence that the dog had barked at one of the neighbors. However, there was no proof that the owners of the dog had ever known of the barking and this Court held that the owners did not know the dog was vicious or possessed propensities to bite or injure other people. In McAbee we commented upon the observations of the late and much lamented Judge Winfield B. Hale in Henry v. Roach (1956), 41 Tenn.App. 289, 293 S.W.2d 480, that under T.C.A. Sections 44-101 and 44R-102 the liability of the owner of the dog is absolute when the dog injures other livestock but not absolute when the dog bites people. In view of the legislative enactment, we felt that the rule of Missio v. Williams requiring scienter should not be extended. Certiorari was denied by the Supreme Court in McAbee v. Daniel on September 3,1968. It is interesting to note that McAbee v. Daniel was decided by the Western Section on March 25, 1968, and on March 29,1968, the Middle Section rendered the opinion of Hood v. Waldrum, 58 Tenn.App. 512, 434 S.W.2d 94. Certiorari was denied by the Supreme Court in the Hood case on November 4, 1968. The Middle Section had no knowledge of our opinion in McAbee v. Daniel nor did the Western Section know of the very fine opinion by Judge Todd in Hood v. Waldrum until several weeks after it was announced. Hence, neither opinion refers to the other case.

In Hood v. Waldrum, Judge Todd reviewed in detail many of the cases in Tennessee relating to dog bites. He announced that the following principles do apply to the common law of liability of dog owners in Tennessee:

“(1) A dog owner who has no reason whatever to expect any mischief from his dog ordinarily is not negligent and not liable for the first mischief which occurs.
(2) The occurrence of mischief, or any other pertinent circumstance, creates a duty upon the owner to exercise ordinary care in keeping with the events or circumstances which have occurred. His failure to exercise ordinary care in this situation is ordinary negligence, for which he may be held liable, unless
(3) The injured party failed to exercise ordinary care under the circumstances, in which event the injured party is guilty of ordinary negligence and cannot recover for ordinary negligence of the dog owner, but
(4) If the dog has exhibited such a fixed or customary or characteristic disposition as to be classified as a dangerous or ferocious dog, then the owner may be guilty of gross or wilful negligence by the mere act of harboring such a dangerous animal upon his premises without adequate safeguards. In such event the owner could be held liable for injury notwithstanding the ordinary negligence of the injured party, however,
(5) Ordinary negligence of the injured party will mitigate damages for the owner’s gross negligence, and
(6) If the injured party’s negligence was gross or wilful, such as voluntary assumption of a known risk, then the dog owner may not be liable even for gross negligence.”

The plaintiff Blair and his witnesses testified that people in the neighborhood regularly used the pathway used by the plaintiff to go across the defendants’ yard in reaching the gate into the Havens’ back yard with the knowledge of the defendant Jack-sons and with no complaint from them for such use. It was for the jury to determine under proper instructions from the Court as to whether the plaintiff was an implied invitee, a licensee or a trespasser.

If the jury believed the testimony of the garbage collector, Mr. Bowman, and the neighbor, Mrs. Maggie Key, the jury could reasonably find that the dog, Casper, was, in fact, a vicious dog and accustomed to biting people and that Mr. and Mrs. Jackson had some knowledge of his vicious propensities. Mr. Key testified that the dog was sneaky and would creep along the side of the fence, then suddenly lunge forward at some person at or near the fence.

On the authority of Sherfey v. Bartley, 36 Tenn. 58, we hold that in the present case the jury might reasonably have found in favor of the plaintiff Blair even though he was a trespasser if the jury should find from a preponderance of the evidence that the dog, Casper, was in fact a vicious dog accustomed to bite or attack people and that the defendants, Jackson and/or wife, had knowledge of such viciousness.

It was for the jury to determine whether plaintiff had carried the burden of proof in proving that defendants had knowledge of the vicious propensities of the dog, Casper; whether defendants were negligent in failing to give warning to plaintiff and others that they had a vicious dog in their back yard; and whether defendants were negligent in failing to erect a higher fence to keep said dog and whether plaintiff was guilty of proximate or remote contributory negligence. His Honor the Trial Judge was in error in directing a verdict and assignment of error No. I is sustained. The judgment for defendants will be set aside and plaintiff granted a new trial.

Since this case must be remanded for a new trial, we think it proper that we also rule upon assignments of error II, III, and IY relating to the testimony of the witnesses, Bobby Key and Maggie Key, neighbors of Mr. and Mrs. Jackson. They testified that the dog, Casper, jumped to the top of the four-foot chain link fence on the line between their property and bit Bobby Key on his arm or shoulder while Bobby Key was standing on his own property. Maggie Key testified that she saw the dog, Casper, charge at a young girl named Marie Stone through a fence in such a way as to frighten the child very much and Maggie Key also testified that she saw the dog, Casper, jump a fence in her yard. This proof was all competent for the purpose of showing the viciousness of the dog, Casper. Assignments of error II, III, and IV are sustained.

It results that all of the assignments of error are sustained, the judgment of the lower Court is reversed, and the cause is remanded for a new trial in accordance with this opinion. The costs in the Court below and in this Court are taxed to the appellees, Mr. and Mrs. Jackson. The costs in the Court below upon the second trial will abide the action of the Trial Judge.

MATHERNE and NEARN, JJ., concur.


source: Caselaw Access Project

author: DWYER, Judge.

license: Public Domain

text:
    Rex Carroll McBEE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 10, 1974.
    Certiorari Denied by Supreme Court June 2, 1975.
    Walker Gwinn, Memphis, for plaintiff-in-error.

      Milton P. Rice, Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, Don A. Dino, Asst. Dist. Atty. Gen., Memphis, for defendant-in-error.
   OPINION

DWYER, Judge.

Rex Carroll McBee, plaintiff-in-error, referred to herein as the defendant, appeals in the nature of a writ of error his convictions at consolidated trial for committing the offenses of robbery with a deadly weapon, see T.C.A. § 39-3901, with resulting punishment of confinement for 18 years, assault to commit murder in the first degree, see T.C.A. § 39-604, with punishment of confinement for not more than 5 years, and confinement for 8 years on a kidnapping conviction, see T.C.A. § 39-2601. The trial court ordered the sentences to be served consecutively. The public defender’s office of Shelby County has seasonably perfected this appeal.

In order to evaluate the usual assignment of error relating to the sufficiency of the evidence, we will narrate the facts as found from our review of this record.

A corporal in the Marine Corps, Glen A. Ashcraft, was security guard for the Marine Corps Reserve facilities located in Memphis on the evening hours of February 19, 1973. He was armed with a .45 caliber automatic pistol in keeping with his duties. On making his security rounds he was startled to come upon the defendant in the gymnasium of the complex. The defendant was armed with a .30-06 rifle which he pointed at the corporal and commanded him to drop his pistol. The corporal grabbed the barrel of the rifle, it discharged, and the bullet struck him in the right shoulder. The defendant then disarmed the corporal and commanded him to turn over his keys and to turn the alarm system off in the building. The defendant then tried to make entry into the armory, where many weapons were stored, but was unable to do so.

As these events were transpiring, several people entered the complex in order to use the gym facilities for basketball practice. The defendant threatened one of these people and commanded him to tell the others that the game had been called off and transferred elsewhere. This person was allowed to leave the gym, and after a lapse of time he and the coach of the team called the commanding officer who informed the police of the shooting of Corporal Ashcraft.

Meanwhile, the corporal was ordered at gunpoint to leave the complex and commanded to enter his car. The defendant then drove him to an isolated area where he was ordered from the car. When he noticed the defendant leveling the pistol at him, he began to run. He tripped and fell and the defendant fired a shot at him. The pistol jammed and the defendant then ordered the corporal into the trunk of his car. The defendant drove off and later abandoned the car. The corporal managed to kick the back seat out of the car and escape from the trunk. He knocked at an apartment house door seeking help, as a result of which the police were notified. The defendant was arrested some time later in Detroit.

At the trial the defendant acknowledged being in the complex stating that he climbed the fence and entered the complex by a back door. He denied any intent to rob the facility or to take the pistol for any purpose other than to disarm the corporal. He further testified that he had no intent to shoot the corporal, but that when the corporal grabbed the rifle this act caused it to discharge.

There is further proof, offered by the state in rebuttal, through the girl friend of the defendant, that he told her he wanted to get some rifles from the Marine Reserve to sell.

We think the facts as narrated sustain the verdict of armed robbery and the verdict of assault to commit murder in the first degree. We disagree with the defendant’s contention, in both instances, that there is not found the necessary intent to sustain these convictions. The proof is clear that the defendant, armed, and by force, took the pistol from the corporal. This act consummated the offense of robbery, which is but an aggravated larceny. See Watson v. State, 207 Tenn. 581, 584, 341 S.W.2d 728. We see no reason to disturb the jury’s finding that in furtherance of the defendant’s intent to steal weapons for sale he took and converted to his own use the .45 caliber pistol from the corporal.

Further, we find that the proof is sufficient to sustain the conviction of assault with intent to commit murder in the first degree. The victim testified that he was taken to an isolated area and ordered to walk in front of the defendant, that when he saw the defendant leveling the pistol at him he started to run and tripped and as he fell the defendant fired a shot at him. We think this deliberate attempt to shoot the victim supports the jury’s finding that it was the intent of the defendant to shoot the victim. We think the act of leveling and firing the pistol at the victim is a fact from which the jury inferred premeditation.

Under the rule concerning an attack on the evidence at the appellate level, defendant is before this court under a presumption of guilt and carries the burden of showing that the evidence preponderates against his guilt and in favor of his innocence, see McBee v. State, 213 Tenn. 15, 19, 20, 372 S.W.2d 173. This he has not done. The assignments attacking the sufficiency of the evidence are overruled.

The defendant next advances the theory that the assault to commit murder in the first degree and the robbery convictions are one since they are the result of a single episode, one intent, and one transaction. The argument is that when the essential elements for both are predicated on violence, then only one conviction can be had, see Wilcox v. State, 74 Tenn. 571, 574. We do not disagree with the Wilcox holding. However, where, as here, the assault to murder shooting of the corporal took place at an isolated area totally different in locale from that of the robbery, they are separate offenses, see State v. Cook, Tenn.Cr.App., 479 S.W.2d 823, 827, 828. The same transaction rule as argued here is not the law in Tennessee, see Duchac v. State, Tenn., 505 S.W.2d 237, 239. We accordingly hold that, under these facts, there were two separate offenses for which two convictions and two punishments may be had. Further, the elements necessary for the offense of kidnapping have been made out; that is, that he was secretly confined, and carried away against his will when he was taken to the isolated area. See T.C.A. § 39-2601; McCracken v. State, Tenn.Cr.App., 489 S.W.2d 48, 52. The assignments are accordingly overruled.

Under our treatment of the foregoing assignment, that there were separate convictions with permissible separate punishments, we find no abuse of the trial court’s discretion in ordering the sentences to be served consecutively, see T.C.A. § 40-2711; Wooten v. State, Tenn.Cr.App., 477 S.W.2d 767, 768. The assignment is overruled.

He next contends that the judgments should be modified to reflect a minimum punishment in the assault to commit murder in the first degree conviction and the kidnapping conviction. It is clear, under the provisions of the indeterminate sentence law, see T.C.A. § 40-2707, that the minimum punishment for the offense becomes part of the judgment whether the judgment recites it or not, see T.C.A. § 40-2708; Leek v. State, 216 Tenn. 337, 345, 392 S.W.2d 456. However, “on appeal,” the judgment is corrected to show the minimum and maximum, see Davis v. State, 1 Tenn.Cr.App. 479, 498, 445 S.W.2d 933. The judgment is modified to reflect the punishment for the conviction of assault to commit murder in the first degree at not less than three years nor more than five years. The judgment for committing the offense of kidnapping is modified to reflect confinement for not less than two years nor more than eight years.

The judgments as to assault with the intent to commit murder in the first degree and kidnapping, as modified, are affirmed. The judgment on the robbery with a deadly weapon conviction is affirmed.

MITCHELL and RUSSELL, JJ., concur.


author: WALKER, Presiding Judge.

text:
    Claude R. TRAIL, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 31, 1974.
    Certiorari Denied by Supreme Court June 16, 1975.

      Michael E. Vaughn, Manchester, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, H. J. Garrett, Asst. Dist. Atty. Gen., Manchester, B. G. Marks, Asst. Dist. Atty. Gen., McMinnville, for defendant in error.
   WALKER, Presiding Judge.

OPINION

On his trial for driving while intoxicated, the jury found guilty the defendant, Claude R. Trail, and fixed his punishment at a fine of $10 and 90 days in the Coffee County workhouse. The trial judge also revoked his driver’s license for five months and 29 days. He appeals in error to this court. At about 4:00 P.M., June 2,1973, sheriffs deputies Terry Watson and Franklin Qualls were on routine patrol in the 9th Model community in Coffee County. They had received complaints of reckless driving in that area. The officers’ attention was attracted to two automobiles approaching them on a gravel road at a speed of 50 to 60 miles per hour. The second car was following the other closely although each car was proceeding in its proper lane of traffic. Watson stopped the defendant who was driving the first car and Qualls stopped the second car.

Watson asked the defendant to show his driver’s license and to step out of the car. When the officer had him walk, the defendant staggered. His speech was slurred, his eyes were bloodshot, his face was flushed, and he smelled of alcohol. Both officers were of the opinion that he was intoxicated and they arrested him for driving while intoxicated.

Testifying in his own defense, the defendant denied that he was driving while intoxicated. He said he had had two beers that morning but nothing else alcoholic the rest of the day. He said that smoking made his eyes red and because of previous injuries rendering him disabled he was sometimes unable to walk properly; he does not talk clearly because of a broken jaw that did not heal properly. He said he asked both officers for a blood-alcohol test. The officers did not recall such a request. The defendant contends that from the testimony of Watson as to the length of time it took for him to reach Watson’s location he could not have been traveling at an excessive speed. The jury resolved any conflicts in the testimony in the case and the defendant has not overcome his burden on appeal. See State v. Grace, Tenn., 493 S.W.2d 474. The assignments on the weight of the evidence are overruled.

The defendant contends there was no probable cause to stop him and that his subsequent arrest was therefore unlawful. Under the circumstances here, the officers had reasonable grounds to stop and detain the defendant. State v. McLennan, Tenn., 503 S.W.2d 909 (1973). His contention that the evidence of his sobriety was inadmissible for that reason is without merit. See Satterfield v. State, 196 Tenn. 573, 269 S.W.2d 607.

The defendant urges that the trial court erred by admitting evidence of his acts when stopped without warning him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. He contends that these acts were designed to elicit from him his condition with regard to sobriety and that the acts amounted to a communication.

The privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. That compulsion which makes an accused the source of real or physical evidence does not violate the privilege. Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826.

Schmerber holds that both federal and state courts agree the privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to assume a stance, to walk or to make a particular gesture. The field sobriety tests given here could not be considered anything but real or physical evidence under the principles of Schmerber. See Heichelbech v. State, Supreme Court of Indiana, 258 Ind. 334, 281 N.E.2d 102 (1972); Rowe v. State, Court of Appeals of Indiana, 299 N.E.2d 852; City of Mercer Island v. Walker, Supreme Court of Washington, 458 P.2d 274 (1969). This assignment is overruled.

The defendant says he was denied an impartial trial because some of the jurors in his case had heard an earlier, similar and related case. This question was not presented to the trial court in the motion for a new trial. Although such questions are waived by Rule 14(5) of the Tennessee Supreme Court and of this court, we have nevertheless considered it and found it to be meritless under the rules laid down in Warden v. State, 214 Tenn. 398, 381 S.W.2d 247:

“Since the record in the case before the Court does not show that any of the members of the jury in this case had formed or expressed any opinion as to the guilt or innocence of the defendants of the offense being tried, or of any other offense on the part of either of them, the mere fact that they had heard testimony given in the trial of these defendants on another offense would not of itself disqualify the jurors.”

The record before us does not show that any juror was biased or prejudiced.

All assignments of error have been considered and are found to be without merit.

In addition to the fine and sentence fixed, the' judgment further is that defendant’s “driver’s license be revoked for a period of 5 months and 29 days.”

In Wilson v. State, 197 Tenn. 17, 270 S.W.2d 340, our Supreme Court pointed out that while a trial judge is authorized to prohibit a person convicted of driving while drunk on our public roads from driving at all upon the roads of the state for a “period of time less than six months”, it does not authorize him to revoke the defendant’s license. T.C.A. § 59-1035. That power is vested in the Department of Safety. This may be a distinction without a difference in the case at bar as the court indicated in Wilson, since the judgment may properly be modified.

The judgment will be modified so as to strike therefrom the provision that the defendant’s driver’s license is revoked for a period of five months and 29 days and insert in lieu thereof that he be prohibited from driving an automobile on the public roads in this state for a period of five months and 29 days. As so modified, the judgment will be affirmed.

OLIVER and O’BRIEN, JJ., concur.


author: OLIVER, Judge.

text:
    Steven Lamar JONES and Jay B. Burford, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 18, 1975.
    Certiorari Denied by Supreme Court June 16, 1975.
    Carlton H. Petway, Nashville, for Jones.
    Monte D. Curry, Asst. Public Defender, Nashville, for Burford.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Robert H. Schwartz, Asst. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

OLIVER, Judge.

In a joint indictment returned April 30, 1973, Steven Lamar Jones and Jay B. Bur-ford were charged with the first degree murder of Deward Aines on an unspecified day in January 1973. In a joint trial, in which Burford was represented by the Public Defender and Jones by retained counsel, both defendants were found guilty of first degree murder. Following the trial court’s charge that the punishment for first degree murder under TCA §§ 39-2405 and 39-2406 “is death by electrocution, or if the jury are of the opinion that there were mitigating circumstances, the jury may fix the punishment at imprisonment in the penitentiary of the state for life, or to not more than a definite period of time over twenty (20) years,” the jury assessed Jones’ punishment at imprisonment in the penitentiary for 21 years and Burford’s at 30 years and one day in the penitentiary. Both defendants prayed and were granted an appeal in the nature of a writ of error to this Court.

It is appropriate to mention at the outset that the trial judge charged the punishment for first degree murder prescribed by the mentioned statutes before TCA § 39-2405 was changed by Chapter 462 of the Acts of 1974 and before TCA § 39-2406 was changed by Chapter 192 of the Acts of 1973 and Chapter 462 of the Acts of 1974.

Burford’s first Assignment of Error advances the insistence urged in his motion for a new trial that the evidence preponderated against the verdict of the jury. Both defendants elected not to testify and presented no evidence.

In summary, the evidence shows that some time after dark on January 25, 1973, while the defendants were engaged in the armed robbery of the Red-E-Stop Market in Nashville, the deceased, Deward Aines — a man 46 years old, entered the store and Burford told him to stop and then told Jones to get his wallet and during the process of robbing the deceased Burford shot him between the eyes with a .25 caliber automatic pistol, killing him instantly.

The investigating officer found a spent .25 caliber cartridge case in the store, and it was stipulated that the county medical examiner removed a .25 caliber slug from the back of the deceased’s head.

Jones voluntarily surrendered to the police three days later. Burford fled to Providence, Rhode Island, waived extradition and was returned to Nashville. When Jones went to the police station, accompanied by his grandmother and his brother, he told the investigating officer he wanted to tell him what happened and proceeded to give a detailed account of the robbery of the store by him and Burford and the latter’s shooting the deceased while they robbed him when he entered the store. He also said that he decided to give himself up and tell the truth about it after talking with his grandmother and other members of his family. His Bruton-expurgated statement was read to the jury without defense objection.

In his statement Jones said that he went into the store and picked up a package of cookies and went to the check-out counter and told the Negro man present to lie down on the floor and he did so, and told the lady cashier to sit down on a stool and she took the bills out of the register and put them on the counter, and “I picked the bills up and put them into a paper sack”; that a white man entered and asked ‘What’s going on?’ as he neared the cashier; that “I took the white man’s billfold out of his back pocket. It had about seven dollars in it. I threw the billfold away somewhere in the Edgehill Projects. I was getting ready to leave and the white man kept mouthing. I couldn’t understand what he said . . . what he was saying. I heard the shot. I saw the fire come out of the end of the gun and the white man put his hands up to his face. I saw the blood on the white man’s face as he fell to the floor. I still had the paper sack with the money in it and I ran out of the door and went up to Edgehill Village. George Compton took me to 1112 Stainback Avenue. I stayed there all night.”

Burford also gave a custodial statement after his return to Nashville and after being fully advised of his constitutional rights which he acknowledged he understood and waived his right to the presence of counsel. In that statement, also read to the jury without defense objection after it was abridged to eliminate all reference to the defendant Jones, Burford made a full confession. He said he put a cartridge in the chamber of the .25 automatic pistol and pulled the safety off before entering the store “because I thought I would have to use the gun when I went inside to rob it”; that he pulled the gun and ordered the Negro man behind the counter to lie down on the floor and told the lady at the cash register to put the money (about $92) in a paper bag and that “I took a key and opened a case and took a watch”; and that when a “real tall and heavy” white man entered the store, “I came out from behind the counter, pointed the gun on the white man and, when I got almost up to him, I said, ‘Give me your car keys.’ He never answered me. The white man kept saying, ‘What’s going on here?’ I kept telling him to shut up. He wouldn’t, so I shot him.” He said his mother lived at 1112 Stainback Avenue and George Compton took- him there later that night.

The Negro “sack boy” testified he was lying on the floor (as Jones said he told him to do and as Burford said he ordered him to do at gunpoint) and that he did not actually see the robbery or anything else that occurred but heard one shot, and that he could not identify either of the defendants and did not know if either of them was in the store at that time.

The cashier testified two Negroes came in and looked around the store; that one of them came to the counter with a box of cookies, and while she was looking for the price on the cookie box the other one came behind the counter where she was and put a gun to her side and told her this was a holdup and to remain on the stool where she was sitting, and told the sack boy to lie down on the floor; that two teen-age Negro boys came in and the robber with the gun ordered them to keep walking toward the back of the store and not to turn around, and they did so; that when the deceased entered the store, the robber with the gun told her to get next to the cash register and pretend to be making change and told the deceased to stop and told the other robber to get the man’s wallet; that this other robber, the one wo had put the cookies on the counter, went over to the deceased and then the robber with the gun also approached him; that she heard a shot and the deceased fell to the floor; and that she did not see which of the robbers shot the man, and that she could not identify either of them.

Dewayne Leroy Jones, 15 years old and no relation to the defendant Jones, testified that when he arrived home a few minutes after the robbery and homicide his older brother James and the defendants were there; that Burford told him, in the presence of others, that he had gotten nervous and shot a man at the Bed-E-Stop Market and asked him to keep the gun, which he refused to do; that he saw some money in a paper sack on the kitchen table and also a billfold; that the defendant Jones told him the billfold came from the man who was shot and asked him to dispose of it and the black trench coat Jones was wearing, and he threw both items into a Dempster Dumpster, which had been emptied by the time he took a police detective to that garbage receptacle.

Bobby Gordon, age 20, testified that after this occurrence he sat in a parked automobile at his home with the defendants and the car owner and Willie Jones; that the defendants were carrying a paper sack with money in it and were talking about the incident; that Burford said they went to the Red-E-Stop Market and told the woman behind the cash register “to stick em up” and that they were going to get all of her money, and after she put the money in the paper sack the man come in the store, and that he (Burford) said he turned around and dropped the gun and it went off and hit the man; that both defendants said it was an accident; and that they left with George Compton in his car.

William Jones, 20-year-old brother of 16-year-old defendant Jones, testified he saw the defendants in a car parked at Gordon’s house the night of this tragedy; that Bur-ford told them he had robbed the store, and that his gun had gone off and he had shot a man; that the defendant Jones had a sack of change which he took out of his pocket and showed to the people in the car but said nothing about it, and that Burford showed them some bills; and that George Compton, cousin of the Jones boys, drove up and his brother asked Compton to take them “out on Stainback” and both the defendants left with Compton; that Burford lived on Stain-back; and that on the following Sunday night he and his grandmother and the defendant went to the police station where the defendant voluntarily turned himself in and gave a statement to the investigating officer.

George Compton testified he saw the defendants at Gordon’s house between 11:00 and 11:30 the night of this crime and took them to the Stainback area of east Nashville.

A fingerprint expert with the Tennessee Bureau of Criminal Identification testified that on the box of cookies heretofore mentioned and admitted in evidence, he found two latent fingerprints which he determined by comparison with the known fingerprints of Burford, were made by his right index finger and his right thumb, and by the same process he identified another fingerprint found on the cookie box as having been made by the defendant Jones’ right thumb. Enlarged photographs of all the prints were admitted in evidence and examined by the jury without defense objection.

Jones has filed no Assignments of Error or brief. However, the foregoing review of the material evidence leaves no doubt that it abundantly justified and sustained the jury’s verdict of guilt both as to him and Burford. Thus, Jones’ challenge to the sufficiency of the evidence raised in his new trial motion, and Burford’s like insistence urged in his first Assignment of Error, must be tested by the time-honored' rules governing appellate review of the evidence in criminal cases. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223. So considered, manifestly the defendants’ assault upon the sufficiency of the evidence must be rejected.

Burford’s Assignment claiming that the murder statutes under which he was indicted and tried were rendered unconstitutional by the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, is wholly untenable. In Bowen v. State (Tenn.S.Ct), 488 S.W.2d 373, the Supreme Court of this State very correctly held that Furman merely prohibited imposition of the death penalty. Plainly, the Fur-man decision outlawing capital punishment did not invalidate our statutes proscribing first degree murder. And, equally without merit, is Burford’s claim that his sentence is excessive.

Jones’ second and final insistence urged in his new trial motion that the court erred in further instructing the jury regarding the sentence it should impose after the jury first reported that they had assessed his punishment at 20 years in the penitentiary, is unfounded. When that occurred, the court properly instructed the jury: “Well, you will need to go back and arrive at a verdict for Steven Lamar Jones in keeping with the provision, you come down to some sentence over twenty years. So, go back upstairs and talk it over and see what you can come up with.” Upon further consideration, the jury again reported they found Jones guilty of first degree murder and fixed his punishment at 21 years in the penitentiary. As mentioned at the outset, the minimum punishment for first degree murder at the time of the defendants’ offense and indictment was some period “over twenty (20) years” to be fixed by the jury. TCA §§ 39-2405 and 39-2406. Of course, if the court had allowed Jones’ punishment to stand at 20 years as the jury first reported, which was less than the statutory minimum, the verdict as to him would have been void. And no valid judgment could have been pronounced against him. Daniels v. State, 176 Tenn. 181, 140 S.W.2d 148; Mayfield v. State, 101 Tenn. 673, 49 S.W. 742; Jenkins v. State (Tenn.Crim.App.), 509 S.W.2d 240.

It is the duty of the trial court to require the jury to amend an imperfect verdict, including assessment of legal punishment. Jenkins v. State, supra.

Affirmed.

WALKER, P. J., and O’BRIEN, J., concur.


author: AKIN, Justice.

text:
    In the Interest of R_ D_ P_, a child.
    No. 18550.
    Court of Civil Appeals of Texas, Dallas.
    March 13, 1975.
    Rehearing Denied April 10, 1975.
    Kurt Philipps, Morgan, Shumpert, Huff,-Philipps, Mosley & Co., Kaufman, for appellant.
    William Woodburn, Dallas, for appellee.
   AKIN, Justice.

This is an appeal from a judgment of a juvenile court of Dallas County terminating the parental rights of appellant, the natural mother of the child, and appointing appellee as managing conservator. Trial was had before the court without a jury. We were advised in oral argument before this court that the guardian ad litem appointed by the trial court to represent the interests of the child joins in appellee’s brief and the contentions presented here.

The child in question was born in December 1973. From the time of her birth to the day of trial, the natural father has been out of state serving in the armed forces. Although no divorce action has been filed, it was established that after February 1974, the marriage was beyond reconciliation. The rights of the natural father are not in issue since he has executed an affidavit of relinquishment.

On 15 July 1974, appellee initiated action to terminate the parent-child relationship between appellant and the child, under the provisions of Tex.Family Code Ann. § 15-02(1)(C) and (D) (Vernon 1975), which provides:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(C) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child .
(2) termination is in the best interest of the child.

The trial court found that the appellant knowingly placed the child, and allowed her to remain, in conditions and surroundings which endanger the physical and emotional well-being of the child; that the appellant engaged in conduct which endangers the physical and emotional well-being of the child; that termination of the parent-child relationship between appellant and the minor child is in the best interests of the child; that appellee is a proper person to be appointed as managing conservator of the child with the rights, powers, privileges and duties set out in Tex.Family Code Ann. § 14.02(b)(1) and (7) (Vernon 1975); and that parental access or possession of the child by appellant is not in the best interest of the child and parental possession or access would endanger the physical and emotional welfare of the child.

Appellant attacks all of the above enumerated findings of fact, except the finding that appellee is a proper person to be appointed as managing conservator of the child, on the basis of no evidence and, in the alternative, insufficient evidence to support the trial court’s findings. We do not agree with appellant’s contentions.

The rule is well settled that the decision in a child custody case is a matter primarily within the sound discretion of the trial court. This is because the trial court faces the parties and witnesses, has the opportunity to observe their demeanor and personalities, and feels the forces, powers and influences that cannot be discerned by merely reading the record. Therefore, the trial court is in a better position to analyze the facts, weigh the virtues, and determine what will be in the minor 'child’s best interests. Silva, v. Aranda, 223 S.W.2d 333, 334 (Tex.Civ.App.—San Antonio 1949, no writ; by Justice Norvell); accord, Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex.1966); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955); Gibson v. Hines, 511 S.W.2d 546, 549 (Tex.Civ.App.—Waco 1974), no writ); Pace v. Curtis, 496 S.W.2d 931, 933 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); Cravens v. Eisenbach, 487 S.W.2d 254, 255 (Tex.Civ.App.—Austin 1972, no writ); Carter v. Carter, 318 S.W.2d 471, 473 (Tex.Civ.App.—San Antonio 1958, no writ). The sole question, therefore, presented here is whether the trial court abused its discretion in terminating appellant’s parental rights. We hold that the trial court did not abuse its discretion because sufficient evidence was presented upon which to base its judgment.

The undisputed testimony of various witnesses, including appellant, established that appellant had sexual relations with a variety of men during the time prior to the filing of this suit. Many of these lovers appeared as witnesses.

The record reveals that at least five independent witnesses testified that they saw appellant frequently spank the baby when she was from two to four months of age. Appellant admits such conduct. These spankings, described by three witnesses as “hard, leaving red marks,” were usually prompted by the child’s crying. One witness, who had an affair with appellant, testified that he treated his dog better than appellant treated the baby and that he terminated the affair because of the frequent spankings.

Witnesses testified that appellant would leave wet diapers on the baby for long periods of time and failed to feed her properly. One witness stated that appellant fed her sour milk while another witness commented that the baby was seldom given food other than milk and that she was so tiny and skinny that she “was afraid to hold her.” Appellant would put the child on a bare mattress without cover when the air conditioning thermostat was set at sixty-degrees fahrenheit.

Many witnesses described the filthy conditions in which appellant and the child lived. One testified that the apartment was “extremely dirty” and that “there were coke bottles all over the floor, baby clothes were strewn all over the bedroom where dogs had slept on them . . . dog mess all over the clothes . . . the place looked like a junkyard.” This testimony is typical of numerous witnesses.

Furthermore, from February 1974, to the middle of July 1974, appellant moved in and out of various lovers’ apartments. Sometimes she took the baby with her, and sometimes she left her for long periods with various babysitters.

On 6 May 1974, appellant arranged for appellee to babysit while appellant worked. The arrangements were such that appellant would leave the child with appellee and her husband at 3 o’clock p. m. every day and was to pick her up at 11 o’clock p. m. on the same day. The record discloses, however, that appellant would rarely come for the baby, but would leave her with appellee for days. Later, appellee and appellant decided that the baby would stay with appellee from 3 o’clock p. m. until 7 o’clock a. m. when appellee was to return the baby to appellant. Although the baby was returned, appellant testified that she usually slept until 1 o’clock p. m. occasionally waking up to take care of the baby.

On 23 May 1974, appellee stopped attempting to return the baby to appellant because she was fearful for the child’s welfare and safety. Appellant was often asleep with a male companion when appel-lee delivered the baby at 7 o’clock a. m. On one occasion, appellee found appellant gone and the apartment occupied by an intoxicated man.

During the entire period from 6 May 1974 to 12 July 1974, appellant made little or no effort to even see her baby although appel-lee’s babysitter lived within a five-minute walk. In response to the question, “Did you make any effort during the month of June to get your child during the hours of 7 o’clock in the morning until 3 o’clock in the afternoon?”, appellant replied, “No, sir.” In fact, the record shows a complete lack of concern for the welfare of the child on the part of appellant. All of such conduct on the part of appellant is evidence upon which the trial court could rest its findings.

It has long been held in Texas that there is a presumption that the best interest of the child will be served by permitting the natural parent to have custody of the child. This, however, is a rebuttable presumption. Dunn v. Jackson, 231 S.W. 351, 353 (Tex.Comm’n App.1921, holding approved); Ham v. Cavette, 357 S.W.2d 438, 441 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.); Binion v. Mathis, 171 S.W.2d 512, 513 (Tex.Civ.App.—Amarillo 1943, no writ); Taylor v. Taylor, 42 S.W.2d 455, 456 (Tex.Civ.App.—Waco 1931, no writ); Smitheal v. Smitheal, 518 S.W.2d 842 (Tex.Civ.App.—Fort Worth 1975, no writ); Gibson v. Hines, 511 S.W.2d 546 (Tex.Civ.App.—Waco 1974, no writ). We agree with appellant that the burden of proof under Tex.Family Code Ann. § 15.02 (Vernon 1975) is upon the appellee. Appellee has sustained this burden as evidenced by the findings of the trial court and the record here. See Richardson v. Althoff, 415 S.W.2d 520 (Tex.Civ.App.—Dallas 1967, no writ); Huff v. Stafford, 429 S.W.2d 620 (Tex.Civ.App.—Dallas 1968, writ dism’d).

Appellant contends that appellee has the burden of proving that the natural parent at the time of filing this action was an unfit parent. We cannot agree. Tex.Family Code Ann. § 15.02 (Yernon 1975) places no such burden upon petitioner. Even pre-code decisions held that a court may terminate parental rights without finding that the parent is unfit, where it is In the best interest of the child. McBrien v. Zacha, 351 S.W.2d 101 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.); Scozzari v. Curtis, 398 S.W.2d 819 (Tex.Civ.App.—Fort Worth 1966, no writ).

Accordingly, we conclude that no abuse of discretion is shown and, therefore, we affirm the judgment of the trial court.


author:
BISSETT, Justice.
      NYE, Chief Justice BISSETT, Justice. NYE, Chief Justice

text:
    MARYLAND AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. Rotha RAMSAY, Appellee.
    No. 962.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 29, 1975.
    Rehearing Denied Aug. 29, 1975.
    Richard D. Cullen, Cullen, Carsner & Williams, Victoria, for appellant.
    William R. Pemberton, Morrill & Patton, Beeville, for appellee.
   OPINION

BISSETT, Justice.

This is a summary judgment case. Rotha Ramsay, the widow of Scott Ramsay, brought suit against Maryland American General Insurance Company to recover death benefits under a policy of insurance which named her husband as the insured. Plaintiff and defendant each filed a motion for summary judgment. After a hearing on the motions, the trial court granted plaintiff’s motion. Defendant’s motion was denied. Judgment was rendered for plaintiff. Maryland American General Insurance Company, the insurer, has appealed. The parties will henceforth be referred to as “plaintiff” and “defendant”, as they appeared in the trial court.

The facts are undisputed. On June 26, 1973, Scott Ramsay (Ramsay), while driving a utility pickup truck which was owned by the United States Navy, collided with an automobile. He sustained serious injury in the accident and died the same day. The collision occurred upon a public highway in Bee County, Texas.

Ramsay, at all times pertinent to this appeal, was a civil service employee of the United States at Chase Field Naval Air Station, in Bee County, Texas. He was classified as an air-conditioning mechanic. On the day of the accident made the basis of this suit, he, along with Rosendo Gonzales, a co-worker, left Chase Field in the pickup truck (pickup) and proceeded to Capehart, a government-owned housing project for Navy personnel stationed at Chase Field, where they installed a compressor on an air-conditioning unit in one of the houses. The housing project is located in the City of Beeville, Texas, some distance from Chase Field. They were returning to Chase Field to pick up another such compressor, which was also to be installed on an air-conditioning unit in Capehart, when the accident occurred.

The pickup was used solely for transporting crew, tools, equipment and supplies (pertaining to air-conditioning and heating installation, repairs and maintenance) from Chase Field to Capehart, and for work at Capehart. It was a one-half ton vehicle, and had a utility bed with three or four cabinets on each side which contained parts, tools, equipment and supplies used to service and work on refrigeration, air-conditioning and heating units. It was licensed by the United States Navy.

The main policy in this ease is denominated “Family Combination Automobile Policy”. It contained the usual coverages relating to damages arising out of the ownership and use of the automobiles specified therein, a 1967 Ford Thunderbird and a 1968 Ford Pickup. The policy provided for $50.00 deductible; liability was limited to $10,000 for each person and $20,000 for each occurrence for bodily injury, $1,000 for each person for medical, and $10,000 for each person and $20,000 for each accident for bodily injury under the uninsured motorist provision. The premium for the main policy and the five' endorsements thereto was $344.00 for the period commencing November 10,1972 and ending November 10,1973. The policy was in force on the day of the accident.

Attached to the policy was an endorsement (157P), entitled “Automobile Death Indemnity, Total Disability and Specific Disability Benefits”, which, among other provisions, insured Ramsay for $10,000 in the event he was killed in an accident and his death occurred “directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon, or while entering into or alighting from, or through being struck by, an automobile . . . ” The premium for the indemnity coverage to Ramsay was $4.00. However, the endorsement also contained the following exclusion, which reads as follows:

“This insurance does not apply:
(a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or commercial automobile . . . ”

Unquestionably, Ramsay died “in the course of his occupation”. The sole question presented by this appeal is whether or not a United States Navy-owned pickup truck is a “commercial automobile” within the meaning of the quoted exclusion.

Defendant, in its first point of error, contends that the trial court erred in granting plaintiff’s motion and in denying defendant’s motion because, as a matter of law, plaintiff’s husband was, while in the course of his occupation at the time of his death, driving a commercial automobile, and, therefore, was not covered by the terms of the policy since his activities at the time of his death were specifically excluded from coverage. Plaintiff’s position is that Ramsay was not engaged in duties incident to the operation of a “commercial vehicle” at the time he was killed in the accident. She argues: the pickup, a “United States Navy-owned, federally-licensed vehicle, driven by a Navy civilian employee with a federal driver’s license, was not a ‘commercial vehicle’; it was a ‘government vehicle’ or ‘military vehicle’, and the policy made the basis of this suit did not exclude government or military vehicles”.

Defendant waived its second point of error during oral argument. Consequently, we do not consider that point.

The purpose of the main policy was to protect the insured from financial loss and liability in the use of the Ford Thunderbird and the Ford Pickup. The purpose of endorsement 157P to the main policy was to provide indemnity for bodily injury or death of Ramsay resulting from accidental injury sustained in an automobile accident.

An “automobile” is defined in the endorsement as “a land motor vehicle, trailer, or semi-trailer not operated on rails or crawler-treads”. The term “commercial automobile” was not defined in either the main policy or in endorsement 157P thereto. In connection with policies of insurance, the courts of this State which have considered the question have consistently held that the term “automobile” is “a generic term which includes the motor vehicle commonly known as a ‘truck’ ”. Noland v. Allstate Insurance Company, 459 S.W.2d 702 (Tex.Civ.App.—Houston (1st Dist.) 1970, no writ); Combined American Insurance Company v. Ganzer, 350 S.W.2d 211 (Tex.Civ.App.—Waco 1961, no writ); Nichols v. State, 156 Tex.Cr.R. 364, 242 S.W.2d 396 (1951). No reason exists why a pickup truck should be considered differently. The term “automobile” also includes a motor vehicle commonly known as a “pickup truck”.

Neither plaintiff nor defendant have cited a Texas case that bears directly on the question presented by this appeal. We have not found such a case. However, Ferguson v. State Farm Mutual Automobile Insurance Company, 281 Ala. 295, 202 So.2d 81 (1967), is analogous to the case at bar. In that ease, Ferguson, while operating a caterpillar road machine in the course of his employment as an operator of such machine for Calhoun County, Alabama, was killed when the machine turned over on top of him. Ferguson was insured under a policy which contained the exact exclusion involved in this appeal. The Court said:

“ . . . We think clearly under the facts here that the county-owned caterpillar road machine being operated by the decedent in the course of his employment was a ‘commercial automobile’ within the clear meaning of the exclusion . . ”

The Tex.Ins.Code Ann. (1963) does not define the term “commercial automobile”. The term “Commercial motor vehicle” is, however, defined in Tex.Rev.Civ.Stat.Ann. art. 6701d-ll § 1, as:

“Any motor vehicle other than a motorcycle, designed or used for the transportation of property, including every vehicle used for delivery purposes”.

That definition, while not controlling, is persuasive.

The term “commercial automobile” is not an ambiguous term. It has a meaning which is readily ascertainable in the plain, ordinary, and popular sense of the words themselves. Hardee v. Southern Farm Bureau Casualty Ins. Co., 127 So.2d 220 (La.App.1961); Peterick v. Mutual of Enumclaw Ins. Co., 9 Wash.App. 721, 514 P.2d 188 (1973); Farmers Insurance Ex change v. Loesche, 17 Ariz.App. 421, 498 P.2d 495 (1972); Molzahn v. State Farm Mutual Automobile Ins. Co., 308 F.Supp. 1144 (D.C.Kan.1968); 15A C.J.S. Commercial, pp. 1-3.

In the instant case, Ramsay’s employer was not engaged in business or commerce. That fact, however, is immaterial to the question to be resolved in this appeal. The policy of insurance was a contract between defendant, the insurer, and Ramsay, the insured. It did not concern Ramsay’s employer, and the exclusion can only apply to Ramsay and his activities. Ramsay was engaged in a commercial activity for profit. It was his business to install, repair and service refrigeration, air-conditioning and heating equipment for the Navy. He was paid for his services. His occupation was commercial in nature, scope and fact. The work that he was doing was not for pleasure purposes, but was for business purposes. His services, if performed for the Navy in the capacity of a sole entrepreneur, or as an employee of a private business concern, undoubtedly would be considered commercial. Ramsay, on the date in question, was not engaged in the service of the military; instead, he was a civilian who was hired by the Civil Service Commission, and was performing services for the military (Navy).

A pickup truck, by its. very nature, is a functioning tool of commerce. It is designed primarily for the transportation and delivery of items of personal property. The fact that the pickup involved herein was also used to house and store tools, equipment and supplies and to serve as a workshop does not detract from its being in use (and used) as a commercial automobile. The pickup was not a military vehicle in the sense that it was designed or being used for military purposes in the ordinary meaning of the word “military”. Ownership of the pickup is unimportant in this case. In summary, the pickup in which Ramsay was riding at the time of his death was by intention, use, and construction, a commercial automobile, despite the fact that it was a government-owned vehicle in use by the military.

This case is strikingly similar to Ferguson v. State Farm Mutual Automobile Insurance Company, supra. There, the vehicle (a road grading machine) was owned by Calhoun County, a political subdivision of the State of Alabama. The County was not engaged in business or in any type of a commercial enterprise. The same is true of this case. The pickup was owned by the Navy, a department of the federal government. The Navy was not engaged in business or occupied with commerce. In each instance, the respective employees were engaged in business in that each was performing services for profit; each was using a vehicle that enabled him to do work for which he was paid; and each vehicle was commercial in nature, design and use. Moreover, the exclusionary provision in each policy related solely to the employee and an accident that occurred during the course of his occupation while he was engaged in duties (among others) incident to his occupation of a commercial automobile. It did not relate to the employer or whether or not such employer (who owned the automobile) was engaged in business for profit at the time in question.

We hold that the pickup in question was a “commercial automobile” within the clear meaning of the exclusion. Since Ramsay sustained death in the course of his occupation while operating a commercial automobile, liability under the death indemnity provision is excluded by the exclusionary clause contained in endorsement 157P to the policy. The trial court erred in granting plaintiff’s motion for summary judgment and in denying defendant’s motion therefor. Defendant’s first point is sustained.

The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing by her suit against defendant.

Reversed and rendered.

NYE, Chief Justice

(dissenting).

I respectfully dissent. I disagree with the majority opinion with respect to the broad construction given the term “commercial automobile”.

The appellee’s husband, Scott Ramsay, was killed while driving a utility pickup truck which was owned by the United States Navy. Ramsay was operating the vehicle with a Federal driver’s license. Ramsay was classified as a civil service employee of the United States at Chase Field Naval Air Station, in Bee County, Texas. His specific classification was that of an air-conditioning mechanic. He did not do any private work, but worked exclusively for the Navy. On the day of the accident, Ramsay left Chase Field in a government-owned federally licensed pickup truck and proceeded to Capehart, a government-owned housing project for Navy personnel stationed at Chase Field. His purpose there was to install a compressor on an air-conditioning unit in one of the houses occupied by Navy personnel. Upon completion of the job and on his return to Chase Field, the accident occurred resulting in Ramsay’s death.

Mrs. Rotha Ramsay, the widow of Scott Ramsay, brought suit to recover death benefits against Maryland American General Insurance Company after the company had refused to pay under its policy of insurance which named her husband as the insured. The trial court granted the widow’s motion for summary judgment and rendered judgment for her. From that judgment, appellant insurance company has appealed.

There is no dispute that Ramsay was covered by the policy made the basis of this suit, unless it can be said that the Navy’s vehicle was a commercial automobile. The insurance policy’s “exclusion” states:

“This insurance does not apply:
(a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to' the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or commercial automobile, or (2) in duties incident to the repair or servicing of automobiles.” (Emphasis added).

In order for the above exclusion to apply, you must say as a matter of law that a United States, Navy-owned pickup truck is a “commercial automobile”. It is the appel-lee’s contention that although her husband was in the course of his occupation at the time of his death, he was not engaged in duties incident to the operation of a commercial automobile. The United States Government and the United States Navy, in particular, are not involved in commerce. They are involved in governmental functions and national defense. The only way to exclude appellee from recovering is to hold that Ramsay was engaged in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or commercial automobile. Ramsay’s vehicle was without question a government or military vehicle and the policy made the basis of this suit did not exclude government or military vehicles.

There is no question that the phrase “commercial automobile” in the context of the exclusionary clause of the policy has both a broad and a restricted meaning. The question before this Court is whether under Texas Law the broad or the more restrictive meaning should be given to the term “commercial automobile”. When an insurance policy is not ambiguous, it is the settled law of this State that the terms used in an insurance policy are to be given their plain, ordinary and generally accepted meaning unless the instrument itself shows that the terms have been used in a technical or different sense. Guardian Life Insurance Company of America v. Scott, 405 S.W.2d 64 (Tex.Sup.1966); Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554 (1953), cert. denied 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081 (1954). In determining the plain, ordinary and generally accepted meaning of the terms of an insurance policy, the courts universally have resorted to the aid of dictionaries. As defined in Webster’s New International Dictionary (3rd ed. Unabridged, 1968), a commercial automobile is an automobile used exclusively for commercial use (as the transportation of cargo other than passengers). The term “commercial” is defeined as 1: of, in or relating to commerce; 2a: from the point of view of profit; having profit as the primary aim. Also the term “commerce” is defined as the exchange or buying or selling of commodities, and particularly on a large scale and involving transportation from place to place.

The Navy was not engaged in commerce. If they are not so engaged, their vehicles could not be so engaged. This is particularly true in view of the fact that this vehicle was being used for Navy purposes, i. e., transporting a compressor for repair of a Navy Housing unit. This was in no sense a commercial enterprise. Although a pickup truck may be considered a “commercial” type vehicle, it also may be considered and in fact is used as a pleasure vehicle. It, therefore, follows that it is not the type of vehicle that is controlling, but the use to which the vehicle is put that controls whether or not the exclusionary provisions of the insurance policy apply. The deceased could not be considered to be a functioning tool of commerce or working in the general stream of commerce, because he worked exclusively for the Navy, a non-profit organization. He could not and did not receive a commercial call from a private person to repair a compressor nor could he nor did he use the Navy vehicle for a commercial venture.

This is a summary judgment case. There is no fact issue to be submitted to a jury where there is a dispute as to the interpretation of a provision in an insurance policy. This is so because such disputes are interpreted in favor of the insured. Under Texas law, if words and expressions used in insurance policies are susceptible of more than one construction, they must be interpreted strictly against the insurer and liberally in favor of the insured. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 879 (1951); 32 Tex.Jur.2d Insurance § 59; Snyder National Bank v. Westchester Fire Insurance Company, 425 F.2d 849 (C.A.Tex. 5th 1970); Hall v. Great National Lloyds, 154 Tex. 200, 275 S.W.2d 88 (1955); Federal Insurance Company v. Bock, 382 S.W.2d 305 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.); Commercial Standard Insurance Company v. Ford, 400 S.W.2d 934 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.); Central Surety & Insurance Corporation v. Anderson, 446 S.W.2d 897 (Tex.Civ.App.—Fort Worth 1969, no writ). It is also the law in Texas that when the contract is capable of two constructions, under one of which recovery is allowed, but under the other of which it is denied, that construction will be given which permits a recovery; and where two interpretations, equally fair, may be made, that which allows the greater indemnity must prevail. Millers Mutual Fire Insurance Company of Texas v. Hensley, 414 S.W.2d 488 (Tex.Civ.App.—Fort Worth 1967, no writ). See also State Farm Mutual Automobile Insurance Company v. Pan American Insurance Company, 437 S.W.2d 542 (Tex.Sup.1969); Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.Sup.1965). The purpose of an insurance contract being to furnish an indemnity against loss, the contract should be construed in such a way as to effectuate that purpose, rather than in a way that will defeat it. Travelers Indemnity Company v. Storecraft, Inc., 491 S.W.2d 745 (Tex.Civ.App.—Corpus Christi 1973, no writ); Commercial Standard Insurance Company v. Ford, supra at 936; National Emblem Insurance Company v. McClendon, 481 S.W.2d 186 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.). This Court in a unanimous opinion said in Storecraft that: “ ‘An insurance policy must be strictly construed against the company writing it, and particularly of provisions that tend to defeat coverage . . . ’ ” (quoting from authority).

The vehicle in question was not involved in any proprietary operations for the United States Navy at the time of the accident. In Dickerson v. State, 169 S.W.2d 1005 (Tex.Civ.App.—Austin 1943), rev’d on other grounds, 141 Tex. 475, 174 S.W.2d 244 (1943), the Austin Court held that a member of the National Guard while engaged in the performance of his duties was involved in a governmental and not an industrial or proprietary activity. The analogy to an employee of the United States Navy is compelling.

If the insurance company had intended to exclude vehicles used in the insured’s occupation, pickup trucks, or just trucks in general, it should or would have used those terms. If the insurance company had intended to exclude military vehicles or government-owned automobiles and trucks, it could have so provided. (For instance, many life insurance policies exclude coverage while riding in military aircraft). Such terms, however, do not appear and are not used in the exclusionary provisions of the policy in question.

The majority would seem to hold that since the pickup truck was not being used as a pleasure vehicle, it must follow that it was being used as a commercial automobile. I would hold that since the policy terms may be susceptible to two constructions, that construction most favorable to the ap-pellee should be adopted.

For these reasons, I would affirm the judgment of the trial court.

OPINION ON MOTION FOR REHEARING

BISSETT, Justice.

Plaintiff-appellee, in her motion for rehearing, contends that since the term “commercial automobile” has both a broad and a restricted meaning, the term should be strictly construed against defendant-appellant and liberally in her favor. We do not agree.

We are aware of the rule which requires a Court to construe the terms of a policy of insurance in a manner favorable to the insured where the policy provisions are ambiguous, or are susceptible to more than one reasonable, construction or interpretation. That rule, however, does not apply to this case.

The Texas Supreme Court, in Guardian Life Insurance Company of America v. Scott, 405 S.W.2d 64 (Tex.Sup.1966), speaking through Mr. Justice Pope, said:

“ . . . Terms used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense . . . ”

We find nothing in the policy which indicates that the words “commercial automobile” were used or meant in a technical sense. They should be given their ordinary and general meaning. Where undefined terms in an insurance contract are given their ordinary meaning and exclusion of benefits results, language contained therein will not be treated as ambiguous.

As stated in the majority opinion, we have not found a Texas case that has decided whether or not the term “commercial vehicle”, undefined in a policy of insurance, is ambiguous. Other jurisdictions have written on this topic.

In Hardee v. Southern Farm Bureau Casualty Insurance Company, 127 So.2d 220 (La.App.1961), a case involving the same exclusion as the one at bar, the court held that a “commercial automobile” is not an ambiguous term but has a meaning readily ascertainable in the plain, ordinary and popular sense of the language used. The Supreme Court of Alabama, in Ferguson v. State Farm Mutual Automobile Insurance Company, 281 Ala. 295, 202 So.2d 81 (1967), reached the same conclusion as did the several courts in Peterick v. Mutual of Enumclaw Insurance Company, 9 Wash.App. 721, 514 P.2d 188 (1973); Farmers Insurance Exchange v. Loesche, 17 Ariz.App. 421, 498 P.2d 495 (1972); Dilley v. State Farm Mutual Automobile Ins. Co., 249 Cal.App.2d 385, 57 Cal.Rptr. 195 (1967); and Molzahn v. State Farm Mutual Automobile Insurance Co., 308 F.Supp. 1144 (D.C.Kan.1968).

In Kirk v. Nationwide Mutual Insurance Company, 254 N.C. 651, 119 S.E.2d 645 (1961), it was said:

“ ‘The test is the character of the use of the vehicle taken into consideration with the form of the ear.’ Zabriskie v. Law, 1922, 118 Misc. 471, 194 N.Y.S. 626, 628. ‘An automobile truck is a vehicle for the conveyance for commercial purposes over ordinary roads, and the average type of that kind of vehicle is especially designed both in its propelling mechanism and in its body construction for that function.’ American-La France Fire Engine Co., Inc. v. Riordan, 2 Cir., 1925, 6 F.2d 964, 966. ‘The words “commercial use” connote use in a business in which one is engaged for profit.’ Lintern v. Zentz, 1950, 327 Mich. 595, 42 N.W.2d 753, 756, 18 A.L.R.2d 713. ‘In State v. D., L. & W.R. Co., 30 NJ.Law 473, it was held: “By the term ‘commerce,’ is meant not traffic only, but every species of commercial intercourse, every communication by land or by water, foreign or domestic, external and internal.” * * * transportation is as much a part of commerce as are the goods transported.’ Conecuh County v. Simmons, 1922, 19 Ala.App. 65, 95 So. 488, 489.”

It has been held that the mere fact that a vehicle is not actually used by the driver to haul for profit is not conclusive in determining whether that particular vehicle is “commercial.” Bauerle v. State Farm Mutual Automobile Insurance Company of Bloomington, Illinois, 153 N.W.2d 92 (N.D.Sup.1967); Farmers Insurance Exchange v. Loesche, supra.

In Voelker v. Travelers Indemnity Company, 260 F.2d 275 (C.C.A., 7th Cir. 1958), plaintiff Voelker, the insured and a member of the National Guard, was operating a National Guard truck and was involved in an accident while in a military convoy. Recovery for damages sustained by plaintiff in the accident was denied. The court concluded that at the time of the collision the truck was used in a business or occupation of the insured, and that “it seems reasonable to think that the truck was furnished him for his ‘regular use’ while acting in performance of his duties as a member of the National Guard.” The court further concluded that the insured, while driving the truck, was not only engaged in the business of the National Guard, “but in his own business as well.” Other eases which have held that the National Guard member (insured) was engaged in business while driving National Guard trucks (military vehicles) so as to preclude coverage are Blackwell v. United States of America and Aetna Casualty and Surety Company, 321 F.2d 96 (C.C.A. 5th Cir. 1963); Glisson v. State Farm Mutual Automobile Insurance Company, 246 S.C. 76, 142 S.E.2d 447 (1965); and Allstate Insurance Company v. Hoffman, 21 Ill.App.2d 314, 158 N.E.2d 428 (1959).

Under the undisputed facts, Ramsay, at the time of his death, was engaged in the course of his occupation in servicing and repairing an air-conditioning unit, and was driving a pickup truck that was owned by the government. When viewed in the light of the purpose for which the pickup was acquired and used by the Navy, it is obvious that its principal purpose was to serve a business need, not a military need. While the Navy was not engaged in a business for profit, it was engaged in the business of caring for its personnel and their families who lived at Capehart. Since the pickup was furnished Ramsay for his regular use while performing his duties as a civil service employee for the Navy, he was engaged not only in the business of the Navy in serving the needs of Navy families, but in his own business as well. Voelker v. Travelers Indemnity Company, supra. There can be no doubt that the pickup was a “commercial automobile” under the exclusionary terms of the policy which is involved here.

We remain convinced that the term “commercial automobile”, as used in the policy, is not an ambiguous term. The language used in the exclusion is too plain to permit judicial interpretation or construction. The two words which comprise the term should be given their ordinary and general meaning. Where words in a contract of insurance are given ordinary meaning and exclusion of benefits results, the language should not be treated so as to create an ambiguity which would result in the opposite of what was so expressed. Lawrence v. Beneficial Fire and Casualty Insurance Company, 8 Ariz.App. 155, 444 P.2d 446 (1968). The exclusionary language in the policy precludes coverage under the facts of this case.

The motion for rehearing is overruled.

NYE, Chief Justice

(dissenting).

The majority states that the term “commercial automobile” as used in the policy is not ambiguous. However, they go to great lengths to construe all of the facts (as favorable as possible), to bring the exclusionary clause into operation. The majority places great emphasis on these facts: that the deceased was servicing and repairing an air-conditioning unit; that he was doing this in the course of his occupation; that he was driving a pickup truck (a commercial type vehicle); and finally concluding that it was obvious that the principal purpose of the automobile that the deceased was driving, was to serve a “business need”, not a “military need”.

Even the appellant insurance company falls into the same construing error in its brief. It states “ . . . the pickup truck was being used in a proprietary function, that is the furnishing of off base housing not in any way directly connected with a military operation. Again, the proprietary and governmental theories of doctrines of immunity from liability are not concerned with insurance coverage.”

The majority cites the Supreme Court case of Guardian Life Insurance Company of America v. Scott cited originally in the Dissenting Opinion. This statement of the law is correct: “terms used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense.” (Emphasis supplied.)

The term commercial automobile as used in the insurance policy is limited to the “ordinary and generally accepted meaning”, i. e., a vehicle used in commerce. This same type of construction was arrived at in the Guardian Life Insurance Company of America v. Scott, supra. There, the Supreme Court was presented with the question of whether the Devereaux Foundation of Victoria, Texas, was a hospital as defined in the insurance policy. There, the Court of Civil Appeals reversed the trial court, holding that it was a hospital. The Supreme Court reversed the Court of Civil Appeals holding that a policy which provides coverage only if “it has” stated facilities does not mean that there is coverage if it “has access” to such facilities in another institution at another place. Here, the purpose of the exclusionary clause in the subject insurance policy was to exclude persons who had sustained bodily injuries or death in the course of their occupation while engaged in duties incident to the operation (of driving a) commercial automobile. The truck involved here was neither an automobile, nor was it a commercial automobile.

A businessman driving the family automobile to and from work would not be excluded under the subject policy, of course. A taxi cab driver driving his taxi automobile in the course of his occupation would be excluded. The majority would exclude coverage (for instance), if the admiral of the Naval base was driving a Navy automobile while on his route to an inspection of the same housing unit where the deceased had been. (This was the admiral’s allegedly commercial business). The solution to the interpretation of the exclusionary clause comes simply, or not at all, from the generally accepted meaning of the commercial purpose for which the vehicle is used. Only by the majority’s construction, as compared to the ordinary and generally accepted meaning, can it be said that the insured was driving a “commercial automobile” instead of a Navy truck. The Texas laws require that where there are two interpretations, although equally fair, that which allows the greater indemnity must prevail. The purpose of the insurance contract is thus preserved.

The majority cites a number of cases from out of state. Not a single one gives comfort to the construction of a Texas insurance contract. They all can be easily distinguished.

The first case cited is Hardee v. Southern Farm Bureau Casualty Insurance Company, 127 So.2d 220 (La.App.1961). It is cited for the proposition that the term “commercial automobile” is not an ambiguous term, but has a meaning readily ascertainable in the plain, ordinary and popular sense of the language used. However, the facts of the case are clearly distinguishable from the case at bar. The truck upon which the decedent in Hardee was killed was owned and used by him to transport pulpwood for the purpose of selling it for a profit. The court held that under these circumstances, the truck was clearly a commercial automobile, in the ordinary and popular meaning of the vehicle. In the case at bar, the truck was not used with a view toward profit by either its owner, the U.S. Government, nor by its driver, decedent. There was no public market.

The case of Kirk v. Nationwide Mutual Insurance Company, 254 N.C. 651, 119 S.E.2d 645 (1961) is also not in point. In that case, the truck in question (a 2½ ton Chevrolet maintenance truck) was used principally in the business of the Southern Railway Company and the court therefore held it was a “commercial automobile”. Thus, that quoted portion set out in the majority opinion, i. e., “The test is the character of the use of the vehicle taken into consideration with the form of the car,” is not at all applicable to the case at bar, in that it pertains to the business of the deceased’s employer, Southern Railway Company, and such business being commercial in nature, caused such truck to be considered a “commercial automobile”.

The majority cites the case of Bauerle v. State Farm Mutual Automobile Insurance Company of Bloomington, Illinois, 153 N.W.2d 92 (N.D.Sup.1967), for the proposition that the mere fact that a vehicle is not actually used by the driver to haul for “profit” is not conclusive in determining whether that particular vehicle is “commercial”. However, that case does not support that proposition at all. But, that court on the contrary held that: “The words ‘commercial use’ connote use in a business in which one is engaged for profit.”

In Voelker v. Travelers Indemnity Company, 260 F.2d 275 (C.C.A. 7th Cir. 1958), also cited by the majority, the plaintiff was operating a National Guard truck returning from a two-week summer encampment when the driver was involved in an accident while in a military convoy. He sought a declaratory judgment for a determination of whether he was covered by his policy with the defendant insurance company. The policy exclusion in the Voelker case made no reference to “commercial vehicles”. It provided only that the insurance agreement did not apply to any automobile while used in a business or occupation of the named insured or spouse. The court, in holding that the vehicle was used in a business or occupation of such named insured, made no reference to business in the commercial sense, or as to profit.

The same holdings with reference to the same provision of the insurance policy as in the Voelker case are found in Blackwell v. United States, 321 F.2d 96 (C.C.A. 5th Cir. 1963); and Allstate Insurance Co. v. Hoffman, 21 Ill.App.2d 314, 158 N.E.2d 428 (1959). Because no reference is made to “commerce”, “commercial automobile” or profit in any of the policies in the above cases, the usual or customary meaning of the term “commercial” was not considered. These cases do not support the majority’s position. In fact, in Glisson v. State Farm Mutual Automobile Insurance Company, 246 S.C. 76, 142 S.E.2d 447 (1965), the court (contrary to the majority’s position) held that a “jeep” (military vehicle) was not such a vehicle in the insured’s business or occupation and held that such an exclusion was not applicable. The definition or application of the term “commercial automobile” had escaped the attention of all of the courts, including Texas.

I would grant the motion for rehearing and affirm the judgment of the trial court.


author: CORNELIUS, Justice.

text:
    John L. WALL, Appellant, v. EAST TEXAS TEACHERS CREDIT UNION, Appellee.
    No. 8291.
    Court of Civil Appeals of Texas, Texarkana.
    June 10, 1975.
    Rehearing Denied July 29, 1975.

      Tom Bankhead, Bankhead & Davis, Carthage, for appellant.
    R. L. Whitehead, Jr., Longview, for ap-pellee.
   CORNELIUS, Justice.

Appellee, East Texas Teachers Credit Union, filed this suit against appellant, John L. Wall, to collect a promissory note. In a trial to the court, judgment was rendered for appellee for the sum of $29,949.63 representing principal, interest and attorney’s fees. •

The note is as follows:

As indicated, there is a variance between the principal amount of the note as expressed in figures and as expressed in words, the figures providing for “$19,-896.01” and the words providing for “Nineteen hundred eight hundred ninety-six-and 01/100” Dollars. Appellant’s first three points of error contend that the trial court should have granted judgment for principal of only $2,796.01 (Nineteen hundred dollars plus eight hundred ninety-six dollars and one cent) rather than $19,-896.01.

Section 3.118 of the Tex.Bus. & Comm. Code Ann., V.T.C.A., provides that in com-mereial paper words shall control figures, except that if the words are ambiguous, figures shall control. Appellant contends that the words “Nineteen hundred eight hundred ninety-six-and 01/100”, although awkward and somewhat unusual, are not ambiguous and therefore they should control over the figure $19,896.01. There are several accepted definitions of the term “ambiguous.” It is sometimes said to mean words which are susceptible of more than one meaning. Piper, Stiles & Ladd v. Fidelity and Deposit Company of Maryland, 435 S.W.2d 934 (Tex.Civ.App., Houston 1st Dist.1968, writ ref’d n. r. e.). On the other hand, the term has been defined as denoting uncertainty of meaning; wanting in clearness or definiteness; or of doubtful import. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); St. Paul Mercury Insurance Company v. Price and Tri-State Wholesale Associated Grocers, Inc., 359 F.2d 74 (U.S.Ct. of App. 5th Circuit 1966); Business Men’s Assur. Ass’n v. Read, 48 S.W.2d 678 (Tex.Civ.App., Amarillo 1932, no writ). Taken literally the words “Nineteen hundred eight hundred ninety-six-and 01/100” may not be susceptible of more than one meaning, but considering that they constitute a grammatically incorrect or unorthodox use of words to express a monetary amount, and considering the additional provisions of the note calling for two payments of Seven Thousand Dollars each, both also expressed in words, we conclude that the wording of the note is uncertain of meaning and of doubtful import and ther-fore ambiguous within the meaning of the Tex.Bus. & Comm.Code Ann. Consequently, the trial court correctly ruled that the principal of the note was $19,896.01.

Appellant’s fourth point of error complains of the action of the trial court in admitting into evidence a loan application which was executed and delivered by him to appellee at about the time the loan was consummated. The application showed the principal of the loan to be $19,896.01. This point will be overruled. Section 3.119 of the Tex.Bus. & Comm.Code Ann. provides that, as between the obligor and his immediate obligee, the terms of a note may be modified or affected by any other written instrument executed as a part of the same transaction. This is but a codification of the previously established rule in Texas. Texas State Bank of Austin v. Sharp, 506 S.W.2d 761 (Tex.Civ.App., Austin 1974, writ ref’d n. r. e.). Although appellee did not seek a modification of the note by its pleadings (no doubt because it contended that the principal as expressed by the figures was correct), we believe the loan application was properly received as evidence of the true nature of the transaction. See comment to Section 3.119, Tex.Bus. & Comm. Code Ann. and Texas State Bank of Austin v. Sharp, supra. At any rate, in view of our other holding, the introduction of the loan application did not result in the rendition of an improper verdict. Rule 434, Texas Rules of Civil Procedure.

In points of error five and six, appellant urges that the trial court erred in granting appellee judgment for interest, because the note was usurious. It is contended that appellee should have been required to forfeit to appellant, as a credit against the note, the penalty provided by Article 5069, Section 1.06, Tex.Rev.Civ.Stat.Ann. Appel-lee contends that the penalty provided for by Section 1.06 is not allowable as a defensive credit but must be recovered by the obligor, if at all, in an affirmative suit or counterclaim therefor, and that since appellant did not file such a suit or counterclaim he was not entitled to the penalty. Appel-lee also contends that the issue of usury was not raised by proper pleadings.

Prior to the adoption of Article 5069, the statutes dealing with usury were Articles 5071 and 5073, Tex.Rev.Civ.Stat.Ann. Article 5071 provided that all contracts for usurious interest “. . shall be void and of no effect for the amount or value of the interest only; but the principal . may be . recovered.” Article 5073 provided that when usurious interest had been received or collected the person paying same may, by an action for debt, recover double the amount of the interest from the person receiving the same. Thus, the law provided two remedies for usury. One was defensive, prohibiting the collection of usurious interest; the other was affirmative, allowing an action to recover twice the amount of any usurious interest the obligor may have actually paid. See: Employees Loan Co. v. Templeton, 109 S.W.2d 774 (Tex.Civ.App., Fort Worth 1937, no writ); Mercer v. Bonner Loan & Investment Co., 73 S.W.2d 988 (Tex.Civ.App., Fort Worth 1934, no writ); Sugg v. Smith, 205 S.W. 363 (Tex.Civ.App., Austin 1918, writ ref’d). It was uniformly held that an action under Article 5073 must be by suit or counterclaim seeking affirmative relief. Rosetti v. Lozano, 96 Tex. 57, 70 S.W. 204 (1902). In an attempt to strengthen the laws against usury, Article 5069 was adopted in 1967 repealing Articles 5071 and 5073. Section 1.02 of the new article omitted the former provision that contracts providing for usury would be void, and provided instead that usurious contracts would be “. subject to the appropriate penalties prescribed in Article 1.06 of this subtitle.” Section 1.06 of the new article changed the penalty as formerly set out in Article 5073 from double the amount of the interest “received or collected,” to twice the amount of interest “contracted for, charged or received.” It also omitted the former provision that the penalty would be recovered by the obligor “in an action for debt,” and provided instead that the lender would “forfeit to the obliged’ the applicable penalty. An additional penalty was added, requiring the lender to also forfeit all principal as well as interest and all other charges if the interest contracted for amounted to more than twice the lawful amount. In view of these significant changes, we conclude that the legislative intent was to make the penalties provided for in Article 5069, Section 1.06 available to the borrower either as a defensive offset in an action on the note, or as an affirmative action to recover the penalty. To hold otherwise would weaken rather than strengthen the laws against usury and would accomplish the very thing condemned in Sugg v. Smith, supra, where the court said:

“. . . the unfortunate borrower, who on account of his necessitous circumstances, or for any other reason, fails to sue for the penalty prescribed for the collection of usurious interest . would be left without remedy, and the result would be that the . . . lender would be permitted to collect usurious interest as well as the principal debt, which would be the accomplishment of that which our usury law has sought to prevent.”

It is true that Subsection 3 of the new law retains some of the elements of the old statutes, and refers to “such actions” being brought at certain places and within certain times, but despite the use of such language, we do not believe the legislature intended to do away with the defensive right previously available to the borrower.

There remains the question whether appellant’s pleadings were sufficient to entitle him to a credit for the penalties provided for by Section 1.06. It is well settled that the defense of usury must be pleaded, unless the terms of the contract or note itself disclose the usury. 58 Tex. Jur.2d Usury, Section 70, p. 158. In addition, a plea of usury must be verified, unless the truth of the matter appears of record. Rule 93, Tex.R.Civ.P. In this case, appellant pleaded only that “Plaintiff’s suit is based upon an instrument which would constitute an illegal loan under the laws of the State of Texas and in violation of the statutes of the State and is accordingly unenforceable against the defendant”, and his plea was not verified. However, appel-lee sued upon the note and attached a copy of it to the petition. By simple mathematical calculation it can be seen that the note is usurious, and appellee has not disputed appellant’s assertion that it is. The principal of the note was $19,896.01. The note provides for a repayment of $20,803.48, principal and interest for the four month term of the note. The note therefore showed on its face to provide for interest in excess of that allowed by law. Article 2462, Section 5, Tex.Rev.Civ.Stat.Ann. Its usurious nature was thus shown of record, and a plea of usury was unnecessary.

For the reasons stated, we conclude that the appellant’s liability on the note should have been reduced by an amount equal to twice the amount of the interest contracted for. Appellee was entitled to judgment for the balance, plus lawful interest accruing after maturity, and attorney’s fees both as provided for by the note. The judgment will be reformed to effect such recovery, and as reformed it is affirmed. Rule 434, Tex.R.Civ.P.

      . See Emergency Clause to Article 5069, Tex. Rev.Civ.Stat.Ann.

      . The note provides for 3 “monthly” payments and the loan application states the loan is for 3 months, but the note is dated May 7 and the final payment was due September 15, a period of 4 months and 8 days.

      . The note provided for reasonable attorney’s fees which were set by the court at $2,722.00. No complaint is made of such award,