author: COULSON, Justice.

text:
    ROYAL TYPEWRITER CO., a Division of Litton Business Systems, Inc., Appellant, v. Hubert H. VESTAL and Don Middlebrook, Partners, Inc. d/b/a U. S. Land Development Co., a partnership, Appellee.
    No. 1852.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 11, 1978.

      Mark P. Blenden, Paul G. Yale, Lapin, Totz & Mayer, Houston, for appellant.
    Kenneth L. Box, Mullins, Box & Parish, Houston, for appellee.
   COULSON, Justice.

Appellant, Royal Typewriter Company, plaintiff below, appeals from a take nothing judgment following a nonjury trial in a suit on a contract against appellees Vestal, Mid-dlebrook, and U. S. Land Development Company, defendants below. Appellant conceded at argument that Middlebrook is not a party to this appeal. We affirm.

On December 5,1972, a contract was executed by Royal, purportedly with U. S. Land Development Company, for the rental of a copying machine. The agreement was signed by one “Julian Holsten” whose title, as written on the agreement, was “Sales Mgr.” The copier was installed on December 8, 1972. On February 21, 1975, Royal filed suit against Vestal, Middlebrook, and U. S. Land Development, alleging that “the Defendants did . . . make and execute” the rental agreement, and that payments totaling $1,254.20 were due and not paid. Royal thus asserted damages resulting from breach of a contract with defendants.

Defendants, in addition to a general denial, pled that they did not execute the contract in question and were not indebted to Royal. Royal filed no additional pleadings. At argument Royal conceded that the actual contract had not been proved and that ratification was the only issue upon which they rely in their appeal to bind defendants. Royal had requested additional findings of fact and conclusions of law on the issue of ratification. The trial judge refused to make any additional findings or conclusions on that issue. We conclude that Royal was not entitled to such additional findings, and cannot prevail upon the theory of ratification in this appeal because ratification was not pled.

The Supreme Court of Texas has held that ratification is a plea in avoidance and thus is an affirmative defense which, in the absence of trial by consent, is waived if not affirmatively pled under Rule 94, Texas Rules of Civil Procedure. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 835 (Tex.Sup.1967). The record before this court does not indicate that the issue of ratification was tried by consent. Rule 94 requires that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense.” The rule itself is not limited to “defendants” but applies to all parties. When a plaintiff desires to rely on an affirmative matter in avoidance of a defense pled in the defendant’s answer, he must allege it in a supplemental petition, unless it is already put in issue by the petition. Rule 94 thus imposes on the plaintiff the requirement that he plead any matter in avoidance on which he intends to rely. Sustala v. North Side Ready-Mix Concrete Co., 317 S.W.2d 64 (Tex.Civ.App.-Houston 1958, no writ); LoBue v. United Services Planning Association, 467 S.W.2d 574 (Tex.Civ.App.-Fort Worth 1971, writ dism’d); McDonald, Texas Civil Practice, Vol 2, 1970, § 8.02 p. 319.

In the case before us, under these principles, once the defendants pled that they did not execute the contract, it then became incumbent upon Royal to file a supplemental pleading asserting ratification if it intended to rely upon that as a defense to defendants’ denial of the contract. The purpose of requiring the pleading of affirmative defense is to put the other party on notice of the matters to be relied on and to enable him to ascertain what proof he may need to meet such defenses. In this case defendants asserted, and the evidence supported the conclusion, that they did not make the contract. The contract was signed by a person not a party to the suit. Royal did not establish any actual or apparent authority of Holsten to execute the contract. Thus the contract itself did not bind defendants. After the trial was concluded, and judgment handed down, Royal attempted to obtain a finding on ratification. The trial judge properly refused to make such a finding, and Royal has no basis on which to persuade this court to make a finding on the affirmative defense of ratification which it neglected to plead. The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, INC., Appellant, v. Jack W. BLACK et al., Appellees.
    No. 1847.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 11, 1978.

      Raymond T. Matthews, Tekell, Book & Matthews, Houston, for appellant.
    John M. Robinson. Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

This appeal is from a take nothing judgment rendered against appellant in its suit for unpaid rent due from appellees on a written real estate lease. We reverse and remand.

On July 29, 1973, Brookhollow Plaza, a partnership, leased certain premises to Black Printing Company, Inc. for a five-year term. Jack W. Black and Angelo Moulios signed as personal guarantors for the payment of rent. Jack W. Black and Black Printing Company are appellees herein. The suit against Angelo Moulios was dismissed without prejudice at trial. Pursuant to the lease, appellees entered and took possession of the premises. Subsequently Brookhollow Plaza sold the property and assigned the lease to Prudential Insurance Company (appellant). On January 1, 1976, appellees vacated and ceased payment of rent, causing the property to stand empty until September, 1976, when appellant obtained another tenant. Appellant, as successor in interest to Brookhollow Plaza, sued the appellees for the unpaid rent, alleging breach of the lease contract.

Appellant sought to prove its ownership of the property by the testimony of Mr. Graubert, the former partner in Brookhol-low Plaza. Over objection, Mr. Graubert testified that the partnership had conveyed the property and assigned the lease to the appellant. He further testified that he was currently employed by the appellant as leasing agent of the property, and therefore was able to testify as to the amount of unpaid rent due under the lease.

The trial court, sitting without a jury, rendered judgment for the appellees, and the appellant duly perfected appeal. Because appellees filed no brief, we accept the appellant’s brief as correctly stating the facts. Tex.R.Civ.P. 419.

Appellant assigns four points of error, but we find that consideration of the second and third points resolves this appeal. In its second point of error appellant asserts that the trial court erred in holding that, under the best evidence rule, appellant failed to introduce any evidence that title, and therefore the cause of action, was transferred to appellant.

The best evidence rule, as applied in Texas, mandates that the only competent evidence to prove the contents of a document is the document itself. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376 (1959); 2 McCormick & Ray, Texas Practice — Evidence, §§ 1561-1562 (1956). The key phrase is “to prove the contents,” because it is only when one seeks to prove the contents of a document that the best evidence rule applies. Thus, when the document and its contents are only collaterally related to the controlling issues, the best evidence rule does not apply. Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397 (1944); 2 McCormick & Ray, Texas Practice—Evidence, § 1567 (1956). Moreover, the collateral issue exception to the best evidence rule has been held applicable when the ownership of property is only collaterally related to the cause of action. Bains, supra; Fannin Bank v. Johnson, 432 S.W.2d 138 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ dism’d).

In this case, appellant’s purpose was to show that it purchased the property and took an assignment of the lease from Brook-hollow Plaza. The contents of the documents of conveyance would be irrelevant to the issue whether the appellees breached the lease contract. On that basis, we conclude that the question of ownership of the lease premises was only collaterally related to the issues presented at trial and that the best evidence rule was incorrectly applied.

Mr. Graubert testified of his own personal knowledge that the appellant purchased the premises from Brookhollow Plaza and took an assignment of the lease. Mr. Grau-bert was competent to testify to that fact because he had been a partner in Brookhol-low Plaza at the time of conveyance. This testimony, admissible under the collateral issue exception, would show that appellant was a successor in interest to Brookhollow Plaza. Hence, we conclude that the trial court erred in holding that appellant failed to produce any admissible evidence of title in appellant. Appellant’s second point of error is sustained. Our decision on this point makes it apparent that the trial court did not consider all of the admissible evidence in making the determination that the appellant failed to carry its burden of proof. For this reason, appellant’s third point of error is also sustained. We find it unnecessary to consider appellant’s other points of error, and express no opinion thereon.

Appellant’s second and third points of error having been sustained, we reverse and remand for a new trial.

Reversed and remanded.


author: CIRE, Justice.

text:
    KNIGHT CONSTRUCTION CO., INC., et al., Appellants, v. BARNETT MORTGAGE TRUST et al., Appellees.
    No. 1763.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 11, 1978.
    Rehearing Denied Nov. 1, 1978.

      Dermot Rigg, Hoover, Cox & Miller, Houston, for appellants.
    C. Andrew Wooley, Louis B. Paine, Jr., Butler, Binion, Rice, Cook & Knapp, L. Chris Butler, Reynolds, Allen & Cook, Houston, for appellees.
   CIRE, Justice.

This is an appeal from a trial court decision denying appellant Knight Construction Company recovery against appellees Barnett Mortgage Trust and Barnett Mortgage Advisors, Inc. Appellant contends that it is a third party beneficiary of a construction loan agreement executed between appellee and developer Houston General Industries (HGI) and is therefore entitled to recover monies due for the construction of apartments from HGI and Barnett jointly. The trial court awarded judgment to appellant against HGI alone. We affirm.

In May of 1972, in order to construct an apartment project, HGI executed a construction loan agreement with Barnett, a Florida business trust. After this loan was executed HGI contracted with Knight, general contractor, to have the apartments built on land owned by HGI. Appellant was not a party to the HGI/Barnett agreement. As a condition to making the loan Barnett required Knight to subordinate its contractor’s lien.

Control Escrow Payment Company (CEP-CO) was named disbursing agent in lieu of a payment and performance bond. CEPCO received funds directly from Barnett and, after inspection of the work performed by Knight, issued checks to cover the amounts owed to the vendors, suppliers, and subcontractors. The president of Knight testified that these checks were made payable to the persons who furnished the goods and were either sent directly to such persons or to Knight to be forwarded to them. Knight was paid bi-monthly in the same percentage as the progress of the project.

Knight substantially completed the project in June of 1973 but was not paid a balance of $206,972.75 due it under the contract with HGI. At that time Barnett advised CEPCO that all the loan proceeds had been disbursed. Attempts to go against a letter of credit intended to cover such a gap in the available funds were unsuccessful due to the bogus nature of such instrument.

Knight subsequently went into Chapter XI Bankruptcy and brought this suit for the benefit of its creditors against HGI and Barnett jointly to collect the amount still due under its contract with HGI. The trial court awarded judgment against HGI but held that Knight was not entitled to judgment against Barnett because there was no express or implied contract between Knight and Barnett and because Knight was not a third party beneficiary of the transaction between HGI and Barnett. Knight appeals from this holding.

This case is controlled by that of Republic National Bank of Dallas v. National Bankers Life Insurance Co., 427 S.W.2d 76 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). In that case Interstate Life Insurance Company made a permanent loan commitment to International Mortgage Corporation. In reliance on this Republic made an interim loan to International Mortgage. Subsequently National Bankers Life acquired Interstate Life by merger and repudiated the loan commitment. Republic sued National claiming to be a third party beneficiary of the agreement between Interstate Life and International Mortgage.

The Dallas Court of Civil Appeals, in refuting this position, held that “[pjarties are presumed to contract for themselves and . . . that a contract will not be construed as having been made for the benefit of a third person unless it clearly appears that such was the intention of the contracting parties.” 427 S.W.2d at 79.

This exception to the general requirement of privity is that one who is not a party to a contract may show that the contract was actually made for his benefit and that the contracting parties intended that he benefit by it, so that he becomes a third party beneficiary of the contract. Id. The right of such a person to enforce the contract, however, “should not rest on implication,” Exchange Bank and Trust Co. v. Lone Star Life Insurance Co., 546 S.W.2d 948, 952 (Tex.Civ.App.—Dallas 1977, no writ) but should be clearly apparent, and any doubt should be resolved against such intent. Republic National Bank, 427 S.W.2d at 80.

Third party beneficiaries are of three types: donee beneficiaries, creditor beneficiaries, and incidental beneficiaries. Only the first two may enforce contracts to which they are not parties. “An incidental beneficiary, one who will be benefited only incidentally by the performance of the contract, cannot maintain an action thereon; an incidental beneficiary acquires, by virtue of the promise, no right either against the promisor or the promisee.” Republic National Bank, 427 S.W.2d at 80. The construction loan agreement was solely between Barnett and HGI; the proceeds of the loan were to be used for all facets of the project as well as the acquisition of land for future development. By its contract with Knight, HGI obligated itself to pay Knight the agreed upon price regardless of the source of the funds. Barnett did not undertake to pay the debts of HGI; rather it made available to HGI, by means of a loan, funds with which HGI could construct the apartment project. Knight did not request its draws directly from Barnett, but from HGI, who would approach Barnett in order to procure the amount requested. We hold that Knight was an incidental beneficiary of the contract between HGI and Barnett and therefore has no right of action against the latter.

The construction loan agreement expressly stated:

(D) This agreement has been executed for the purpose of governing the terms of the loan between the Lender and Borrower. No person who is not a party to this agreement may rely on the terms hereof except as expressly provided herein. . No other party dealing with Borrower may consider himself in privity with Lender because of the terms of this agreement.

This language expressly refutes any allegation of intent to benefit anyone not a party to the HGI/Barnett agreement. In addition, the Texas Supreme Court has held that “where a contract expressly provides that it is for the benefit of the promisee and no one else, a third person may not sue thereon even though he might otherwise come within its terms as a beneficiary.” Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 24 (1945). (Emphasis added).

Appellant further urges that appel-lee Barnett was under a duty to see that appellant received full payment. The Dallas Court of Civil Appeals faced a similar contention by a materialman in a. suit against his builder and his builder’s lender in the case of Coke Lumber and Manufacturing Co. v. First National Bank in Dallas, 529 S.W.2d 612 (Tex.Civ.App.—Dallas 1975, writ ref’d). That court held that there was “no basis for imposing on the lender the duty of a trustee. . . . [Plaintiff] was not justified in relying on the bank to protect its interest.” 529 S.W.2d at 614. Accordingly, this claim has no merit.

Appellant argues that because it was named general contractor in the loan commitment letter which was later incorporated into the construction loan agreement, there was a clear intent to benefit appellant directly from the loan proceeds. In Exchange Bank and Trust Co. v. Lone Star Life Insurance Co., supra, Exchange made a short term loan to Five Forty Three Land, Inc. and then sought as a third party beneficiary to enforce a long term loan commitment made to Five Forty Three by appellee, Lone Star. Appellant urged that references in the commitment letter to Exchange as a short term lender indicated an intention to make Exchange a third party creditor. The appellate court, holding that this made no material change in the transaction, concluded that any benefit to the short term lender was incidental and applied the rule that “a contract to provide a borrower with funds to pay his debts does not give his creditors a right to enforce the contract as third-party beneficiaries,” 546 S.W.2d at 950. As a result any reference to Knight in any agreement between Barnett and HGI is ineffective to show an intention to benefit Knight.

Appellant also contends that appellee Barnett misapplied or misappropriated certain of the loan funds and that this resulted in the shortage to Knight. Because appellant as an incidental third party beneficiary is not entitled to sue on the HGI/Barnett agreement, we do not reach this point of error.

Affirmed.


author: STEPHENSON, Justice.

text:
    Dale Lee OWENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Rehearing Denied Nov. 21, 1978.
    Jack Emory Farley, Public Defender, M. Gail Robinson, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Dale Lee Owens was indicted and tried on three counts of first-degree rape, KRS 510.040, and four counts of first-degree burglary, KRS 511.020. On the trial of the case, a jury found him guilty on three counts of first-degree rape and fixed his punishment at twenty years in the penitentiary on each count. Additionally, the jury convicted on three of the four counts of first-degree burglary and fixed his punishment at fifteen years’ confinement on each count. The trial court sentenced Owens in accordance with the jury verdict, directing that the sentences be served consecutively.

The first victim testified that on May 11, 1976, in the early morning, a man entered her apartment, threatened her with a gun and raped her. Afterwards he offered the gun to the victim and told her to shoot him. The victim could not identify Owens but testified that he had been in the bathroom. The police found Owens’ fingerprints on the basin in the bathroom.

The second victim testified that on August 20, 1976, she was awakened in her apartment by a man in her bed. The man threatened her with a knife and raped her. She could not positively identify Owens as the man, but gave a general description which fitted Owens. Owens’ palm print was found on the basin in the victim’s bathroom.

The third victim testified that a man entered her apartment in the early morning of August 24, 1976, held a screwdriver to her throat and raped her. He then asked her if she would “freak out” if he committed suicide. After this, he fell asleep. The victim called the police who found Owens in the victim’s bed and placed him under arrest. The door to the apartment was broken off its hinges.

Owens’ wife testified to an alibi for the second incident, that on the night of August 19-20 he was at home watching television. Owens testified that the third victim invited him to her apartment and that he fell asleep and knew nothing until the police arrived. He denied any contact with the other two victims at the time of those incidents.

Prior to trial, Owens’ lawyer filed an affidavit in support of a motion for psychiatric examination to determine if Owens was competent to stand trial.

The affidavit stated that the lawyer was unable to impress on Owens the seriousness of the charges against him, that in his-opinion Owens had no comprehension of the seriousness of the nature of the charges, and that Owens hallucinated and was unable to afford his lawyer any effective aid in the preparation of his defense. The trial court ordered the examination.

Owens’ first assignment of error is he was unfairly prejudiced by the refusal of the trial court to grant a severance and order three separate trials. RCr 9.16.

The trial court determined prior to trial that the offenses charged were of the same or similar character and declined to grant a severance. We are of the opinion the trial court did not abuse discretion in this ruling. The acts referred to in the charge on which Owens was tried were the same in character — forcible entry, followed by forcible rape. All three incidents occurred in the early morning hours and within a relatively short span of time from May 11 to August 24. Coincidentally or otherwise, all three victims had the same first name. We are of the opinion that it was not error for the trial court to refuse a motion for severance. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973).

Owens argues that he was confounded in his defense for the reason he wished to testify as to one charge, but not the others. As observed by the trial court, in this set of circumstances on a trial of one of the charges, testimony of the other charges would be admissible to show a pattern of conduct. This argument in the absence of other compelling factors ordinarily is not sufficient to warrant a severance. Otherwise, it would have the effect of nullifying the provisions of RCr 9.12, consolidation of offenses for trial. RCr 9.16 requires a defendant who desires a severance of charges to make a showing of unfair prejudice. We see no unfair prejudice here in the joinder of offenses.

Owens’ reliance on Romans v. Commonwealth, Ky., 547 S.W.2d 128 (1977), is misplaced. The unusual circumstances present in Romans are not present here, and we do not regard Romans as applicable to the circumstances of this case.

The second issue argued by Owens is that the trial court should have on its own motion conducted a hearing to determine Owens’ competency to stand trial.

The results of the psychiatric examination are not in the record. However, Owens was returned from the examination and his lawyer did not raise any further question regarding Owens’ competency. There was no motion for a competency hearing. There is no further indication from Owens’ lawyer that Owens did not comprehend the charges against him or was unable to assist in his defense. From our review of the record and the testimony, there is not present any factor that would even tend to alert a trial court that the defendant may be incompetent to stand trial, Via v. Commonwealth, 522 S.W.2d 848 (1975), certainly no obvious conduct which could not fail to alert the trial court. Owens’ testimony reveals that he did the best he could under the circumstances. The jury did not choose to believe him.

We infer from the record that Owens’ lawyer, after his return from the examination, no longer had any complaint as to Owens’ competency to stand trial and acted accordingly.

We are of the opinion, in the circumstances of the case, there was no duty on the part of the trial court to conduct a hearing on Owens’ competency to stand trial.

The judgment is affirmed.

All concur, except LUKOWSKY, J., who dissents for the reason that he believes that the affidavit of counsel for Owens was sufficiently detailed and specific to place Owens’ competency to stand trial in issue and, consequently, require the trial judge to hold a hearing in order to determine this issue without further request.


author: STERNBERG, Justice.

text:
    William Dale VEACH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Aug. 22, 1978.
    Rehearing Denied Nov. 21, 1978.

      Jack E. Farley, Public Defender, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

This is an appeal from a judgment of the Whitley Circuit Court finding the appellant guilty of robbery in the first degree (KRS 515.020) and fixing his punishment at 20 years in the penitentiary.

Robert Byrd, his wife Fannie, and their two children, Bob, age 13 years, and Tim, age 10 years, resided at and operated the Dixie Drive-In Theater and concession stand in Williamsburg, Kentucky. On June 9, 1977, Robert was operating the concession stand and Fannie was selling tickets. The two children were in the office with her. Late in the night near closing time, at about 10:00 p. m., the appellant knocked on the office door. When Mrs. Byrd opened the door, she was faced by the appellant wearing a stocking mask and flourishing a handgun. He demanded her money, and after receiving it in a blue bank-deposit bag, he closed the door and left in the dark. Mrs. Byrd, by using the intercom system, notified her husband, who immediately gave chase and fired five shots at the appellant from his 38-caliber revolver. Shortly thereafter, he was joined by a neighbor, who was alerted by the pistol shots, and by Trooper Campbell of the Kentucky State Police. The search was continued in a tall weed field. Trooper Campbell overtook and captured the appellant lying down and hid- - ing in some pressed-down honeysuckle vines. The appellant did not have a gun, the stolen money, or the stocking mask. A search, however, disclosed the mask about three feet from where the appellant was captured, and a further search revealed the presence of Tony Sullivan lying on his back, the money bag in his left hand, a nickel-plated 38-caliber Smith & Wesson revolver in his right hand, and wearing a stocking mask. The following morning Mr. Byrd made an additional search of the area where the appellant was captured, and there under the honeysuckle vines and leaves he found a high-ribbed 22-caliber revolver about ten inches long. It was identified as the weapon used in the robbery.

Mrs. Byrd described the robber as being about five feet seven inches tall, weighing about 170 pounds, having red hair, and wearing blue jeans, a blue flannel shirt, glasses and a stocking over his head for a mask. After the appellant’s arrest, he was taken to the scene of the robbery, where Mrs. Byrd and her son Tim made a positive identification.

On this appeal the appellant presents five alleged errors. First, he argues that the trial judge erred in permitting the Commonwealth to amend the indictment. The case was called for trial, and before either the Commonwealth or the appellant had announced ready for trial, the Commonwealth’s Attorney sought permission to amend the indictment by inserting the title “Mrs.” immediately preceding the name “Robert Byrd” in the descriptive part. The indictment then read “Mrs. Robert Byrd.” Counsel for the appellant objected, but did not seek a continuance. No prejudice is claimed by this action of the court. As a matter of fact, counsel for appellant announced ready for. trial after the indictment had been amended.

RCr 6.16 provides:

“The court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”

The amendment related to a matter of form and not of substance. Both this court and the United States’ courts have approved the correction of the name appearing in the descriptive part of the indictment. Watkins v. Commonwealth, Ky., 565 S.W.2d 630 (1978); Grigsby v. Commonwealth, Ky., 299 Ky. 32, 184 S.W.2d 77 (1945); Amburgy v. Commonwealth, 300 Ky. 261, 188 S.W.2d 437 (1945); Dye v. Sacks, 279 F.2d 834 (6 Cir. 1960); Del Piano v. United States of America, 240 F.Supp. 687 (D.C.1965). The trial judge did not err in permitting the indictment to be so amended.

After the trial judge had instructed the jury on the law of the case and prior to counsel’s summation, one of the jurors sought to have Mrs. Byrd answer the following questions:

“1. When the person who held the gun on you and took the money — spoke to you, was there any evidence of drunkenness that you could observe?
2. Was his speech slurred?
3. Did he appear to be unsteady on his feet?”

Over objection of counsel for appellant, the trial judge permitted Mrs. Byrd to be recalled. The Commonwealth’s Attorney asked her the proffered questions. No interrogation was made by counsel for appellant. Without further ado, counsel for the Commonwealth and counsel for the appellant made their respective closing arguments to the jury. Thereupon, the jury retired to consider its verdict. After a relatively short time, the jury returned into court and announced that it had found the appellant guilty of robbery and fixed his punishment at confinement in the penitentiary for a period of 20 years.

It is argued that KRS 29.304 is applicable to the present state of facts and prohibits the reopening of this case. KRS 29.304 provides:

“Manner of giving information on law or evidence after submission. — After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their counsel.”

This statute applies to the reopening of a case “After the jury have retired for deliberation, * * In the case at bar the jury had not retired to consider its verdict prior to the recalling of Mrs. Byrd to testify; consequently, the statute is not applicable. The trial court has a wide discretion in the conduct of a trial, and the action of the court, unless clearly erroneous, will not be disturbed by this court. Shaw v. Commonwealth, Ky., 497 S.W.2d 706 (1973). The appellant, in any event, was not prejudiced in his plea of drunkenness by the testimony thus given by Mrs. Byrd. In fact, he was supported by her testimony in that she stated his speech was a little slurred. Appellant’s counsel suggests that rather than reopening the case so that Mrs. Byrd could testify, the court should have instructed the jury that it was to consider only the testimony that had been presented. Suffice it is to say that such an instruction was not sought by counsel for appellant, and the court was under no obligation to so instruct the jury.

The appellant next argues that at the conclusion of the Commonwealth’s case his motion for a directed verdict of acquittal was erroneously denied. Appellant thereupon introduced his evidence and the Commonwealth concluded with its rebuttal testimony. Trial counsel for appellant did not, either at the conclusion of the introduction of his evidence or at the conclusion of the evidence given when the case was reopened, request a directed verdict of acquittal. Not having requested such action, he waived any right he may have had to a dismissal. Scruggs v. Commonwealth, Ky., 566 S.W.2d 405 (1978). The evidence, as delineated by the transcript of testimony, is so clear and convincing that the appellant is guilty of robbery that to entertain a doubt is pure folly. In Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977), we said:

“If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. * * * ”

Even if the appellant had not waived his right to a directed verdict of acquittal, he would not have been entitled to a dismissal.

Next, counsel for the appellant charges that the prosecutor deliberately injected false issues in the case. The appellant directs our attention to two lines of cross-examination that he argues are improper and prejudicial. The transcript of testimony discloses that no objection was made by the appellant to this interrogation; therefore, the error, if any there was, is waived. McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).

Lastly, the appellant argues that exhibits 1 through 4 were erroneously introduced into evidence. Exhibit 1 is a nickel-plated 38-caliber Smith & Wesson revolver. Exhibit 2 is the stocking mask which was worn by Sullivan at the time of his arrest. Exhibit 3 is a 22-caliber high-ribbed breakdown pistol, about ten inches long, and was identified as the weapon used by the appellant in the robbery. This exhibit was found on the morning following the robbery between 5:30 and 6:00 a. m. Exhibit 4 is the stocking mask found about three feet from the appellant at the time he was arrested.

The appellant argues that there was no evidence to connect him with exhibits 1 and 2. Not so. The appellant and Tony Sullivan were both masked, fleeing from the scene of the robbery, chased by an officer of the law, apprehended together, and the money which had been stolen was found in the possession of appellant’s colleague, no farther than eight feet from where the appellant was apprehended. As to exhibit 3, it is argued that the gun was not identified as the one used in the robbery. Both Mrs. Byrd and her son Tim identified the weapon. What more is necessary? The appellant says that exhibit 4 is not admissible because there was no proof that this was the stocking worn by the robber. This is true; nevertheless, the stocking was found about three feet from the appellant when caught and a similar stocking mask was worn by the robber at the time of the robbery. We deem this sufficient association for the jury to conclude that this stocking mask was the one worn by the appellant at the time of the robbery. These exhibits, when considered together, one with the other, were indeed competent.

The judgment is affirmed.

All concur, except JONES and CLAYTON, JJ., who did not sit.


author: PALMORE, Chief Justice.

text:
    Alpha HAYES et al., Movants, v. L. E. COOKE CORPORATION, Respondent.
    Supreme Court of Kentucky.
    Sept. 19, 1978.
    Dan D. Ball and Grover D. Adkins, Louisa, for movants.

      William S. Kendrick, Prestonsburg, for respondent.
   OPINION AND ORDER

PALMORE, Chief Justice.

Subsequent to this Court’s granting discretionary review of the decision of the Kentucky Court of Appeals in L. E. Cooke Corporation v. Hayes et al., 549 S.W.2d 887 (Ky.App.1977), the parties filed a joint motion to dismiss wherein it was indicated that the case had been compromised and settled, and that the L. E. Cooke Corporation had agreed to pay all costs in this Court as well as in all inferior courts. The motion to dismiss having been granted, the L. E. Cooke Corporation is directed to pay all costs as agreed.

LUKOWSKY, CLAYTON, JONES and STERNBERG, JJ., sitting. All concur.


author: JONES, Justice. STEPHENSON, Justice,

text:
    DEPARTMENT OF REVENUE, Movant, v. STATE CONTRACTING AND STONE CO., INC., Respondent.
    Supreme Court of Kentucky.
    Sept. 19, 1978.
    William S. Riley, Asst. Atty. Gen., William P. Sturm, Atty., Legal Staff, Dept, of Revenue, Frankfort, for movant.
    Clarence McCarroll, Bartlett, McCarroll & Nunley, Owensboro, for respondent.
   JONES, Justice.

The question presented is whether certain pollution control equipment and hot-mix storage bins used by State Contracting and Stone Co., Inc. are exempt from sales and use tax as “machinery used in new and expanded industry” as defined in KRS 139.-170.

State Contracting and Stone is a corporation engaged in quarrying limestone at Hartford, Kentucky, and manufacturing asphalt at Owensboro, Kentucky. After the limestone is quarried it is broken into various sizes by a “crusher”. It is then transported by State Contracting and Stone to its Owensboro plant where it is manufactured into asphalt.

In conformity with federal law and regulations State Contracting and Stone added pollution control equipment to its crusher so as to regulate the emission of dust. It is conceded by the parties that the pollution control equipment was required by federal law as a prerequisite to the continued operation of the Hartford plant.

Prior to the installation of two “hot-mix storage bins” by State Contracting and Stone Company, as soon as the asphalt was manufactured it was necessary to immediately transport it by truck to designated job sites because it would harden and become unuseable. In the operation of an asphalt plant it is necessary to have a constant temperature. That is difficult if it is dumped directly into trucks. However, when the asphalt is placed in the bins it continues to be heated and blended. Thus, the asphalt is “homogenized and the temperature is stabilized”.

The Department of Revenue assessed a use tax deficiency against State Contracting and Stone in the amount of $8,688.86, excluding interest, for the audit period of January 1, 1970, through December 31, 1973, on the pollution control equipment, the hot-mix storage bins and a scoop loader. State Contracting and Stone appealed the assessment to the Kentucky Board of Tax Appeals. The board affirmed the ruling of the Department of Revenue. State Contracting and Stone appealed to the circuit court of Ohio County. The trial court held the pollution control equipment and hot-mix storage bins exempt. The Department of Revenue appealed to the Court of Appeals which affirmed the trial court. This court granted discretionary review.

This court now directs its attention to the question whether the pollution control equipment and the hot-mix storage bins are “used directly in the manufacturing process”. If so, then by the terms of KRS 139.170 the property in question is exempt from state sales and use tax for “machinery used in new and expanded industry”. KRS 139.480(8).

The Pollution Control Equipment

It is conceded by the Department of Revenue that the limestone crusher is directly used in manufacturing of asphalt. This court is of the view that the pollution control equipment is indispensible to the operation of the “crusher”, which is directly engaged in manufacturing. The pollution control equipment is mandated by federal law and regulations. Without it, State Stone and Contracting could not operate. There would of necessity be a cessation of its manufacturing of asphalt. To hold that the pollution control equipment is not an essential part of the manufacturing process of asphalt would thwart the legislative intent of KRS 139.480(8) “to enhance Kentucky’s competitive position in manufacturing”. Ross v. Greene and Webb Lumber Co., Inc., Ky., 567 S.W.2d 302 (1978).

The Hot-Mix Storage Bins

It is the view of a majority of the members of this court that the component parts of the asphalt bituminous product as it flows into the hot-mix storage bins is an unfinished product, not sufficiently blended and not uniformly heated. There are baffles in the bin which cross blend the component parts of the asphalt bituminous material, thus producing a homogenous finished product. The manufacturing of the asphalt is not finished until it is homogenized, blended and the fine and coarse particles of the aggregate are properly and uniformly mixed, and the product is uniformly mixed and heated. Thus, the hot-mix storage bins are used “directly in the manufacturing process” of the asphalt.

The pollution control equipment and the hot-mix storage bins are exempt from the Kentucky sales and use tax as machinery for new and expanded industry and are “directly used in the manufacturing process.”

The judgment of the Court of Appeals is affirmed.

PALMORE, C. J., and CLAYTON, JONES, LUKOWSKY and REED, JJ., concurring.

STEPHENSON and STERNBERG, JJ., dissent. STEPHENSON, J., filed a dissenting opinion in which STERNBERG, J., joined.

STEPHENSON, Justice,

dissenting.

I dissent from that portion of the majority opinion which holds that the hot-mix storage bins are used “directly” in the manufacturing process.

Prior to installation of the hot-mix storage bins, the respondent carried on a presumably profitable business of manufacturing hot asphalt, loading the manufactured product immediately into trucks for delivery to customers. In my view the manufacturing process was completed and the addition of the hot-mix storage bins was merely for the convenience of the respondent. These bins permitted respondent to store the hot asphalt for a period of time and obviated the necessity for immediate transportation to the customer. The bins at most improved the product somewhat by blending and thoroughly mixing the large and small particles of stone used in the hot asphalt according to respondent and presumably enhance the profit on the completed product. In my opinion, equipment placed in use in a manufacturing plant for the convenience of the taxpayer and enhancement of profit on a manufactured product does not qualify for the exemption provided for in KRS 139.170. As set out in the opinion of the Court of Appeals, the reason for the installation of the bins was “It makes a better mix, a more workable mix.” The thrust of the argument by respondent is not that the hot-mix storage bins are an integral part of the manufacturing process, but that these bins “improve the product.”

It is not argued by respondent that the hot-mix storage bins are an integrated part of the manufacturing process, thus “directly” used in the manufacturing. We do not have here the integrated plant theory which resolved the dispute in Schenley Distillers v. Commonwealth, ex rel. Luckett, Ky., 467 S.W.2d 598 (1971), and approved in Ross v. Greene & Webb Lumber Co., Inc., Ky., 567 S.W.2d 302 (1978).

The majority opinion takes the view that the product is unfinished before being placed in the hot-mix storage bin, concluding that the manufacturing process had not been completed. This is an untenable conclusion in view of the fact that the manufacturing process was carried on and the product sold with apparent satisfactory results before the installation of the bins.

I find no case where installation of machinery or equipment for the convenience of the taxpayer and an improvement of an already saleable product has been held tax exempt as being used “directly” in the manufacturing process. The practical effect of the majority opinion is that it effectively abolishes the limiting effect of “directly used in the manufacturing process” and gives tax exemption status to the installation of any equipment or machinery however casually related to the manufacturing process.

STERNBERG, J., joins in this dissent.

      . “That machinery used directly in the manufacturing process, which is incorporated for the first time into plant facilities established in this state, and which does not replace [new] machinery in such plants”.

      . The scoop loader is not involved in this appeal.


author: FINCH, Judge.

text:
    INDEPENDENT STAVE COMPANY, INC., a corporation, Respondent, v. Ernest D. HIGDON et al., Appellants.
    No. 60410.
    Supreme Court of Missouri, En Banc.
    Oct. 10, 1978.
    Rehearing Denied Nov. 6, 1978.
    J. F. Souders, Gruenberg, Souders & Levine, St. Louis, for appellants.
    Donald W. Jones, Prewitt, Jones & Kar-chmer, Springfield, for respondent.
    Gordon D. Gee, Kansas City, Leslie W. Bailey, Jr., National Right to Work Legal Defense Foundation, Fairfax, Va., amicus curiae.
   FINCH, Judge.

This is an appeal from a judgment permanently enjoining appellants from enforcing a “union security” provision of a collective bargaining agreement. The trial court held that said contract provision violates Mo.Const. art. I, § 2 which provides “that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry . . ..” (Emphasis added.) Resolution of this question requires construction of said constitutional provision which vests jurisdiction in this court. Mo. Const, art. V, § 3. We reverse.

Independent Stave Company, Inc. (hereinafter the company) manufactures barrels. It admittedly is engaged in commerce within the meaning of §§ 2(6) and 2(7) of the National Labor Relations Act, as amended and is within the jurisdiction of the National Labor Relations Board.

Certain of the company’s employees were in a bargaining unit represented by the Coopers International Union of North America, AFL-CIO and its Local 42 (hereinafter jointly referred to as the union). A contract between the company and the union expired in August of 1976 and a strike commenced a month later. During the three months long strike, some of the employees continued to work. They submitted resignations from the union in order to avoid union fines for crossing the picket lines. When the strike ended, other employees returned to work.

Another union then sought to represent the employees and in January 1977 the National Labor Relations Board conducted a secret ballot election. The Coopers Union won and was certified as the bargaining agent. After certification, its representatives sought to sign up all employees in the bargaining unit. Meanwhile, the union bargained with the company on a new contract. An agreement effective April 9, 1977, was reached and executed. It included the “union security” clause involved in this ease.

On April 28,1977, the employees who had submitted resignations during the strike wrote to the union seeking to withdraw those resignations. They were advised that under union rules the resignations were not effective during the strike, but had taken effect when the strike ceased on November 24, 1976. As a result, they were told, they would be required to reapply for membership and to pay the initiation fee as well as dues. At that time the initiation fee was $50 but shortly thereafter the initiation fee was raised to $100 by vote of the membership of the local union.

On June 2, 1977, acting pursuant to the “union security” provision, the union advised the company in writing that forty-five employees in the bargaining unit had not joined the union. Their dismissal was requested. Thereafter, seven of those persons joined the union and their names were stricken from the list of requested dismissals. The company did not dismiss the other listed employees as requested by the union. Instead, it instituted this suit against the international union, the local union and their officers to have the “union security” clause declared to be unconstitutional as violative of art. I, § 2 of the Missouri Constitution and to enjoin its enforcement.

In resolving this question, we look first to the provisions of the Labor Management Relations Act, 29 U.S.C. §§ 141 — 187. That law was enacted by Congress in 1947 pursuant to its power to regulate commerce among the states. U.S.Const. art. I, § 8. Where Congress enacts legislation to govern such commerce, it preempts the field to the exclusion of state constitutional or statutory provisions. Erie Railroad v. New York, 233 U.S. 671, 34 S.Ct. 756, 58 L.Ed. 1149 (1914). In this instance, however, the legislation indicates that it is not intended to preempt the field.

29 U.S.C. § 157 provides:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.” (Emphasis added.)

29 U.S.C. § 158(a)(3), referred to in § 157, makes it an unfair labor practice for an employer to discriminate “in regard to hire or tenure of employment or any term or condition of employment” for the purpose of encouraging or discouraging membership in a labor organization. However, added thereto is a proviso to the effect that nothing in this or any other statute “shall preclude an employer from making an agreement with a labor organization to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later . ..”

Finally, the foregoing provisions are qualified by 29 U.S.C. § 164(b) which provides:

“Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

It is clear that by the foregoing sections Congress has provided that a “union security” provision which conforms to the type of agreement described in 29 U.S.C. § 158(a)(3) (as does the one in the contract between the company and the union herein) is permissible and that employees are bound thereby unless the state in which the contract is to be applicable has a law which prohibits such agreements. Retail Clerks International Association, Local 1625 v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963). To that extent Congress has not preempted the field. The question for resolution, therefore, is whether Mo.Const. art. I, § 2, prohibits “union security” agreements in Missouri. If it does, then it governs and the “union security” provision in the contract between the company and the union is invalid. Otherwise, §§ 157 and 158(a)(3) are applicable and the “union security” agreement is valid and enforceable.

In arguing for affirmance of the trial court’s holding that the “union security” provision in the contract between the company and the union violates art. I, § 2 of the Missouri Constitution, the company relies primarily on five decisions of this court. The first of these is Cheek v. Prudential Ins. Co., 192 S.W. 387 (Mo.1917). In that case plaintiff brought suit to recover damages for refusal of defendant to issue him a letter pursuant to Missouri’s service letter statute. A second count sought damages for conspiracy with another company to prevent reemployment of plaintiff and others. The court upheld the constitutionality of the service letter statute and held that plaintiff was entitled to maintain a suit for damages based thereon. In discussing that question the opinion refers to that portion of the constitution which is now art. I, § 2, including the language about the right of persons to “the enjoyment of the gains of their own industry.” Under that provision, said the court, it is axiomatic that no one has the right to deprive persons by any means of the right to work for anyone who consents for them to work and that one so interfering is liable in damages. However, the court in so stating was not considering the validity of a “union security” provision negotiated as a part of a collective bargaining agreement. It dealt with and settled only the constitutionality of the service letter statute and plaintiffs right to maintain a suit for damages for refusal of his employer to give him a letter as required by that statute.

The next case relied on by the company is City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539 (banc 1947), in which the city sought by a declaratory action to obtain a determination of its power to make collective bargaining contracts with labor unions concerning wages, hours, collection of dues and working conditions of city employees. The court held that art. I, § 29 of the Missouri Constitution which provides “[t]hat employees shall have the right to organize and to bargain collectively through representatives of their own choosing” does not apply to any public employees or officers. In so holding the opinion states that art. I, § 29 applies only to employees in the private sector. However, the case did not involve a controversy concerning such employees and did not consider the validity of a “union security” provision in a collective bargaining contract.

The third and fourth cases relied upon by the company are Bellerive Country Club v. McVey, 365 Mo. 477, 284 S.W.2d 492 (banc 1955) and Tallman Company v. Latal, 365 Mo. 552, 284 S.W.2d 547 (banc 1955). Both were suits to enjoin picketing by a union and to recover damages. In Bellerive the court held that where picketing of a not-for-profit country club was not in fact either organizational picketing or advertising picketing but was intended to adversely affect the club’s normal operation so as to cause it to intervene and coerce its employees into union membership, such picketing was for an unlawful purpose and should be enjoined. In Tallman an injunction was denied because picketing had ceased but the court held that plaintiff’s suit for damages resulting from the prior unlawful picketing should be permitted to proceed. Neither of these cases involved a “union security” clause nor whether art. I, § 2 prohibits such a provision.

Finally, the company cites and relies on Quinn v. Buchanan, 298 S.W.2d 413 (Mo. banc 1957). In that case defendant was a processor and seller of meat and meat products. He had five driver-salesmen, three of whom, along with union officers and trustees, brought suit for injunctive relief and damages. The petition alleged that the driver-salesmen organized and then chose the Teamsters Union as their bargaining representative, after which defendant said that he would not allow a union and that those who signed cards for such representation would be fired. The petition stated that the employer refused to meet and bargain, that he discharged three driver-salesmen and induced another to cancel and withdraw his union authorization. The court held that injunctive relief was proper to prevent the employer from coercing employees into withdrawing from the union and rescinding their authorization to the union to act as their collective bargaining representative and from otherwise interfering by coercion with such employees’ rights to freely choose the union as their bargaining representative. However, it held that plaintiffs were not entitled to mandatory relief which would require defendant to recognize and bargain with the union. The action of the trial court in dismissing plaintiffs’ petition was reversed and the cause was remanded.

None of the foregoing cases involved the inclusion of a “union security” clause in a contract negotiated by an employer and a union representing employees of that union. None of them held that such a provision is prohibited by Mo.Const. art. I, § 2. As a matter of fact, there is language in Quinn which would indicate that the court did not consider that art. I, § 2 has that effect. In considering a motion for rehearing in that case the court noted that plaintiffs had cited the case of Local Union No. 324, International Brotherhood of Electrical Workers, A.F.L. v. Upshur-Rural Electric Cooperative Corp., 261 S.W.2d 484 (Tex.Civ.App.1953), and the fact that it was based on a Texas statute, Tex. [civil] Code Ann. tit. 83, § 5207a(2) which provided “[n]o person shall be denied employment on account of membership or nonmembership in a labor union.” The court then went on to say at 420: “Of course, if we had such a statute we would have a different case.” Such statement would indicate that the court considered that Missouri had no statute or constitutional provision which had the effect of the quoted Texas statute.

That this court did not consider that its earlier decisions in Cheek; City of Springfield; Bellerive Country Club; Tallman and Quinn established that art. I, § 2 prohibited “union security” clauses in a labor contract also may be deduced from the court’s statement in Pfitzinger Mortuary, Inc. v. Dill, 319 S.W.2d 575 (Mo.1958), in which the court said at 577: “Missouri does not have a so-called right-to-work law . . . .”

While not decisive of the question of whether Missouri had such a law in 1947 when 29 U.S.C. § 164(b) was adopted by the Congress, it is of some significance that in Retail Clerks the Supreme Court noted that when said section became law in 1947, twelve states had statutes or constitutional provisions outlawing or restricting the closed shop and related devices which would include “union security” provisions. 345 U.S. at 100, 84 S.Ct. 219. The Court referred to State Laws Regulating Union-Security Contracts, 21 L.R.R.M. 66, which listed those twelve states as Arizona, Arkansas, Georgia, Iowa, Nebraska, Nevada, North Carolina, North Dakota, South Dakota, Tennessee, Texas and Virginia. The Court also referred to H.R.Rep.No.245, 80th Cong., 1st Sess., p. 34 which lists the same twelve states as having laws forbidding “union security” agreements. 345 U.S. at 100, nn. 4 & 5, 84 S.Ct. 219. It also lists fourteen additional states, including Missouri, that “have under consideration laws forbidding compulsory unionism.” Obviously, neither Congress nor the U.S. Supreme Court considered that Cheek; City of Springfield; Bellerive Country Club; Tall-man or Quinn held that Mo.Const. art. I, § 2 prohibited “union security” provisions.

We conclude that prior cases cannot be interpreted as having held that Mo.Const. art. I, § 2 prohibits the inclusion of “union security” provisions in labor contracts between an employer and the bargaining agent of its employees.

Having so concluded, the question we must decide is whether it should be so construed. We are persuaded that it should not. The language of art. I, § 2 is very general. It says only “that all persons [shall] have . . . the enjoyment of the gains of their own industry . . . .” In this respect it differs substantially from the constitutional provisions and statutes in other states which undertake to prohibit or limit such things as “union security” provisions. For example, Ariz.Rev.Stat. § 23-1302 provides:

“No person shall be denied the opportunity to obtain or retain employment because of nonmembership in a labor organization, nor shall the state or any subdivision thereof, or any corporation, individual, or association of any kind enter into an agreement, written or oral, which excludes a person from employment or continuation of employment because of non-membership in a labor organization.”

Georgia has several provisions dealing with this question. Ga.Code Ann. § 54 — 902 provides:

“No individual shall be required as a condition of employment, or of continuance of employment, to be or remain a member or an affiliate of a labor organization, or to resign from or to refrain from membership in or affiliation with a labor organization.”

Section 54-903 provides:

“No individual shall be required as a condition of employment, or of continuance of employment, to pay any fee, assessment, or other sum of money whatsoever, to a labor organization.”

Section 54-904 provides:

“Any provision in a contract between an employer and a labor organization which requires as a condition of employment, or of continuance of employment, that any individual be or remain a member or an affiliate of a labor organization, or that any individual pay any fee, assessment, or other sum of money whatsoever, to a labor organization, is hereby declared to be contrary to the public policy of this State, and any such provision in any such contract heretofore or hereafter made shall be absolutely void.”

Section 54-905 provides:

“It shall be unlawful for any employer to contract with any labor organization, and for any labor organization to contract with any employer, so as to make it a condition of employment of any individual, or of continuance of such employment, that such individual be or remain a member of a labor organization, or that such individual pay any fee, assessment, or other sum of money whatsoever, to a labor organization.”

Nebraska has a constitutional provision, art. XV, § 13, which provides:

“No person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organization or because of refusal to join or affiliate with a labor organization; nor shall any individual or corporation or association of any kind enter into any contract, written or oral, to exclude persons from employment because of membership in or nonmembership in a labor organization.”

This provision is implemented by Neb.Rev. Stat. § 48-217.

North Carolina has a statute, N.C.Gen. Stat. § 95-78, which provides:

“The right to live includes the right to work. The exercise of the right to work must be protected and maintained free from undue restraints and coercion. It is hereby declared to be the public policy of North Carolina that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization or association.”

Statutes and constitutional provisions of the other states which have undertaken to prohibit or restrict “union security” provisions have been equally specific. We are cited to no instance in which courts of other states have held that general constitutional or statutory language comparable to art. I, § 2 of the Missouri Constitution prohibits “union security” provisions in labor contracts.

In the arguments made to the court herein, it was urged that the very general nature of the language about persons being entitled to the gains of their own industry means literally that persons are entitled to all they earn and that they cannot be made to surrender any portion thereof to anyone except, presumably, the government itself. We cannot accept that construction. Carried to the logical conclusion, it would mean that an individual is free to work for anyone who will hire him for whatever they agree upon and at whatever times they fix. That would mean that insofar as Missouri law is concerned there could be no minimum wage law or statutory limitations on hours. Under such construction there could be no collective bargaining agreements which would establish wage rates or hours of work or provide for contributory pension or insurance plans for members of the bargaining unit unless the individual personally ratified such provisions. Such construction of art. I, § 2 would limit substantially the provisions of Mo.Const. art. I, § 29 which provides that employees may organize and bargain collectively through their chosen collective bargaining representatives. In our judgment art. I, § 2 is not susceptible to such construction.

We hold that art. I, § 2 of the Missouri Constitution does not prohibit the inclusion of a “union security” provision in a collective bargaining agreement. That being true, the “union security” provision in the contract between the company and the union is not prohibited by Missouri law and is valid and enforceable under the provisions of 29 U.S.C. §§ 157 and 158(a)(3).

Respondent did not file a motion to dismiss the appeal herein but does make the point in its brief that appellants’ original brief does not comply with Rule 84.04(d), V.A.M.R. in that its points relied on are abstract statements of law and do not state the actions or rulings of the trial court of which complaint is made or wherein and why they are erroneous. The brief is deficient in this respect. See our opinion in Thummel v. King, No. 60340, 570 S.W.2d 679 (Mo. banc 1978). However, some of those deficiencies are supplied in appellants’ reply brief and we have concluded that the appeal should not be dismissed.

The judgment of the trial court is reversed.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ., and WELBORN, Special Judge, concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      .This “union security” provision requires employees to become and remain members of the union on and after the 31st day following their employment or effective date of the agreement, whichever is later. If an employee fails to do so, this union may, in writing to the employer, demand the discharge of the employee. The employer, after investigating and determining the employee is not a member, and does not agree to become a member, shall discharge the delinquent employee.

      . Ch. 372, § 2, 49 Stat. 450 (1935) (Current version at 29 U.S.C. § 152 (1970).)

      . There had been a “union security” clause in contracts between the employer and the union dating back to 1955.