author: GEORGE HENRY, Special Judge.

text:
    STATE of Missouri, Respondent, v. Donald PIERCE, Appellant.
    No. 10123.
    Missouri Court of Appeals, Springfield District.
    Sept. 13, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Ann K. Covington, Asst. Attys. Gen., Jefferson City, for respondent.
    Charles M. Wesley, Waynesville, for appellant.
    Before TITUS, P. J., and PARRISH, CASTEEL and HENRY, Special Judges.
   GEORGE HENRY, Special Judge.

Donald Pierce appeals after jury trial and being subjected to concurrent sentences of two years by the Circuit Court of Pulaski County for burglary and stealing. § 560.-110 RSMo 1969, V.A.M.S.

Preliminary to taking the stand in his own behalf appellant, out of the presence of the jury, in the presence of his mother and on the record, acknowledged that he understood he did not have to testify and that a failure to testify would result in no unfavorable inferences. Appellant then testified and on direct examination admitted the burglary and stealing. In mitigation, he claimed to have been drunk at the time, but having sobered up the next morning he was on his way to retrieve and return the stolen property when he was stopped by one of the deputies investigating the crime.

Appellant contends that his pretrial and trial motions to suppress his statements and articles taken in the burglary were erroneously overruled because “custodial interrogation” began when he was stopped by a deputy sheriff who suspected appellant because he owned a car with wider tires on the rear than in the front and which could have made the tracks left at the scene of the burglary. The deputy sheriff asked appellant to come back to the scene of the burglary to talk to the other deputy “about a problem.” On returning to the scene, appellant was asked to drive in alongside the tire tracks left at the scene. According to the state’s evidence, when the tire tracks were found to match, appellant’s Miranda rights were read to him. Appellant and a witness for him testified that his Miranda rights were not read until later following admissions and directions which led to recovery of the stolen items. Appellant relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); and State v. Williams, 522 S.W.2d 641 (Mo.App.1975).

In Williams, relied on by appellant, the court said, “No hard and fast rule can be established as to when custodial interrogation begins . . . .” Appellant also cites State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691, 696 (1967), where the court, in commenting upon Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda, said, “To put the matter in familiar terms, the police must have both reasonable grounds to believe that a crime has been committed, and also reasonable grounds to believe that the defendant is the one who committed it. A.R.S. § 13-1403, subsec. 4. We believe that the point where the warning must be given is when the two generally coincide, for from that point forward the police can be expected to pursue the case against the defendant with vigor. The police must have focused generally upon the crime so that they would have cause for arrest without a warrant. . The time for caution is when the arrest could be made. Everything prior to that time may reasonably be considered ‘the general on the scene questioning’ which is permissible . . . .” With this we agree. The suspicion in the deputy sheriff’s mind arising from the knowledge that appellant owned a car with similar tires remained as suspicion only until a comparison showed them to match. Only then was there probable cause to arrest and charge appellant with the crime. The State’s evidence was that this was when the Miranda warning was given. The court properly overruled appellant’s motions to suppress.

Even assuming the motion to suppress was erroneously overruled, appellant’s claim must fail. He took the stand and admitted the crime. In the case of State v. Bradford, 462 S.W.2d 664, 669 (Mo.1971), the supreme court cited Motes v. United States, 178 U.S. 458, 476, 20 S.Ct. 993, 1000, 44 L.Ed. 1150 (1900) wherein the Supreme Court of the United States said, “It would be trifling with the administration of the criminal law to award * * * (the accused) a new trial because of a particular error committed by the trial court, when in effect he has stated under oath that he was guilty of the charge preferred against him.” Missouri has followed this rule in other cases. See State v. Williams, supra, 522 S.W.2d 641; State v. McGee, 447 S.W.2d 270, 275 (Mo. banc 1969); State v. Eacret, 456 S.W.2d 324 (Mo.1970).

In a point raised for the first time in appellant’s brief, appellant contends that the court abused its discretion in denying his request to invoke the rule to exclude witnesses from the courtroom. In the case of State v. Gordon, 536 S.W.2d 811, 814 (Mo.App.1976), the court said, “Appellate Courts, being courts of review, generally are precluded from affording review to trial court errors which have not in the first instance been presented to the trial court in a Motion for New Trial.” Considering the fact that appellant admitted the crime during his direct testimony, we find that no injustice or miscarriage of justice will result from refusal to invoke the plain error doctrine of Rule 27.20(c), V.A.M.R.

Judgment affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    Horace CORLEY, Plaintiff-Respondent, v. Theodore KISER and Virginia Kiser, Defendants-Appellants.
    No. 10326.
    Missouri Court of Appeals, Springfield District.
    Sept. 14, 1977.

      Dale H. Close, Richland, Arthur B. Cohn, Jr., Waynesville, for plaintiff-respondent.
    Charles M. Wesley, Waynesville, for defendants-appellants.

      . Defendants-appellants’ brief is flecked with an unexplained variety of figures said to have been the then amount of the unpaid balance on the contract, e. g., $4,025.83, $4,015.33 and $4,150.83, and plaintiffs exhibits are spotted with similar inconsistencies, e. g., $4,025.33 and $4,105.85. Counsel having accorded no significance to these relatively minor variations, neither do we.

   STONE, Judge.

This is an appeal by defendants Kiser from a judgment of the Circuit Court of Pulaski County awarding to plaintiff Horace B. Corley (plaintiff Corley) the sum of $5,650.00 damages for defendants’ breach of a “Contract of Sale of Real Estate” dated November 24, 1971 (the contract), in which plaintiff agreed to purchase certain real estate (sometimes referred to as the premises) from defendants, Theodore R. and Virginia Kiser, husband and wife. Dorothy M. Corley, plaintiff’s then wife, executed the contract with her husband; but, when the Corley marriage was dissolved on May 16, 1975, plaintiff became the sole owner of the buyers’ contractual rights and interest under that contract.

The contract obligated plaintiff Corley to pay $5,000 in equal monthly installments of $87.67 each and all taxes for 1972 and thereafter; permitted plaintiff to pay without penalty all or any part of the balance due at any time prior to maturity; required defendants Kiser, upon request by plaintiff, to furnish an abstract of title showing a merchantable fee simple title in defendants; stipulated that, upon full payment of the purchase price and all accrued interest, defendants would convey the described realty to plaintiff by “general warranty deed”; stated that, in the event of default by plaintiff continuing more than ten days after written notice by defendants, “at their option and upon written demand," they might “declare the entire balance of the sale price immediately due and payable” and, if such “entire balance” were “not forthwith paid,” they might (a) terminate all of plaintiff’s rights under the contract and retain as liquidated damages all sums theretofore paid by plaintiff or (b) pursue any other legal remedy for breach of contract; and provided that the contract was not assignable by plaintiff without the written consent of defendants.

Joe Miller, a real estate agent at Waynes-ville (Miller), negotiated a sale of the property by plaintiff Corley to third parties, Ronald W. Cochran and Ida B. Cochran (third-party buyers), who gave Miller a check in the sum of $2,914.24 to be held in escrow as a down payment on the property. On June 1,1973, Miller apprised defendants Kiser of this transaction by letter addressed to their home in North Laurel, Maryland, and on June 15, 1973, he informed them by letter similarly addressed and mailed to defendants that “[a]s soon as the abstract is ready the Corleys are ready to pay the balance of $4,025.33 ... on the contract.” (All emphasis herein is ours.)

On August 21, 1973, Miller again wrote defendants Kiser, enclosing (1) a warranty deed to be executed by defendants and (2) the Corley note with the request that it be marked “paid in full,” and promising that, upon return of the executed deed and the Corley note so branded as paid, “we’d be able to send them a check for the balance that the Corleys owed.” Having had no response from defendants Kiser in the meantime, early in September 1973 Miller contacted William C. Morgan (Morgan), manager of the Pulaski County Abstract Co., Inc. and Claude Morgan Insurance Agency, Inc., to act as an escrow agent; and on September 7, 1973, Morgan wrote defendants that they could send the executed deed and the note to the First National Bank at Waynesville, Missouri, which would “act as your agent in closing this transaction and being sure you receive the $4105.85 which is due to you.”

Plaintiff Corley testified that the reasonable value of his labor and the materials he had “put into the house” was $7,000. Stating that he had “spent approximately $5,000” for materials, he recalled expenditures of $3,100 for blocks, lumber and other materials purchased from a supplier in St. Robert, the major portion of which was used in building “a big porch” on the house, a $620 expenditure for air conditioning equipment in a central system, and a $430 expenditure for gas lines, duct work, and furnace repairs. Without supplying specific figures for expenditures in connection with other repairs and betterments, he stated that he had replaced “the wiring upstairs,” that he “re-did” and “re-sheetrocked” the ceilings both downstairs and upstairs, that he had “completely paneled the downstairs apartment” with panels costing $8.15 per sheet, and that he had put a new roof on the house. On the contract with defendants Kiser, plaintiff Corley had made monthly payments of $87.67 each from January, 1972 to May, 1973, inclusive.

Defendants maintain that the contract was not breached either by their failure to furnish the abstract as was requested in Miller’s letter of June 15, 1973, or by their failure to send plaintiff the warranty deed and the note marked “paid in full” as was requested in Miller’s letter of August 21, 1973. Rather, defendants assert that the contract was breached by plaintiff when he failed to make any monthly installment payment after May, 1973; and, when the installment payments due June 5, July 5, and August 5 were not received, defendants mailed Miller a typewritten letter dated August 28, 1973, which purported to be a ten-day notice letter contemplated by the contract. Although this letter declared “the contract terminated” and demanded $4,105.85 as “full payment of balance with the accrued interest,” it also assured plaintiff Corley “a bank certified check” for $4,105.85 “will be excepted (sic)” and closed with the promise that “in turn” defendants would “sign deed and sign and mark prom-missary (sic) note paid in full” and “return” those instruments to plaintiff Corley — an assurance of action by defendants Kiser obviously inconsistent with and repugnant to termination of the contract and forfeiture of plaintiff Corley’s rights thereunder. In a handwritten postscript to this letter, defendants also charged that plaintiff Cor-ley had failed to fulfill his obligation under the contract to pay all taxes.

Defendants Kiser further testified that on Saturday, October 13, 1973, they visited Morgan’s office in Waynesville and informed him that “[w]e had a deed [and] a note ready to execute” and that “[a]ll we ask is a bank certified check from the Corleys and turn it over to them.” Morgan advised defendants to contact Miller; but, instead of attempting to do so that same day, they “went back home down to Devil’s Elbow . . . [we] rented a place down there, Big Piney.” When defendants returned to Waynesville on Monday, October 15, Miller was not in his office when they called there, so they made a second visit to Morgan’s office and “asked him for the money again.” Then finding that Miller had not yet returned to his office, defendants proceeded to the office of plaintiff Corley’s attorney, Arthur B. Cohn, who informed them that Corley was in Florida and it would “take me [Cohn] about three or four days to get” Corley back to Waynes-ville. Shortly thereafter defendants’ attorney, Charles M. Wesley, by letter to Cohn notified plaintiff Corley to vacate the premises and to remove two abandoned automobiles therefrom and also informed plaintiff that he (Wesley) already had notified the Cochrans (third-party buyers), then occupying the premises, to vacate.

In due time, plaintiff Corley instituted this action for breach of contract; and, upon trial by the court sitting without a jury, plaintiff had judgment for $5,650 from which defendants have perfected this appeal. Our appellate review is “upon both the law and the evidence as in suits of an equitable nature” with “[d]ue regard . to the opportunity of the trial court to have judged the credibility of the witnesses” [Rule 73.01, subd. 3(a, b), V.A.M.R.], and we are directed to sustain and affirm the judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo. banc 1976).

As respondent here, plaintiff Corley is clothed with the presumption that the judgment nisi is correct, and the burden is on defendants Kiser, as appellants, to establish affirmatively any alleged error. Hardy v. McNary, 351 S.W.2d 17, 20(2) (Mo.1961); James v. James, 248 S.W.2d 623, 627(8) (Mo.1952); Crossgates Home Ass’n. v. Blomquist, 537 S.W.2d 429, 430(1) (Mo.App.1976); Pallardy v. Link’s Landing, Inc., 536 S.W.2d 512, 515(2) (Mo.App.1976); State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 476(8) (Mo.App.1972).

Where, as here, no specific findings of fact were requested of or made by the trial court, on appellate review all issues of fact are deemed to have been found in accordance with the result reached and the judgment entered in the trial court [Rule 73.01, subd. 1(b)]; and, absent any assigned error, the judgment will be affirmed if it can be sustained on any reasonable theory supported by the evidence. Lossing v. Shull, 351 Mo. 342, 351, 173 S.W.2d 1, 5(1) (1943); De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Co., 539 S.W.2d 542, 545(1) (Mo.App.1976); Collins v. Bowyer, 524 S.W.2d 190, 193(1, 2) (Mo.App.1975).

With the preceding precepts in mind, we attend defendants’ three “Points Relied On.” The first two of those points are considered together, for, when so consolidated, they constitute a single attack on the sufficiency of the evidence to support the judgment nisi. Without descending into needless detail, we record our opinion that neither the evidence offered on behalf of plaintiff nor that offered on behalf of defendants was either uncontroverted (as defendants-appellants boldly assert in their brief) or unequivocal. In this situation, we necessarily “ ‘heed the well fixed principle that in court tried cases where the evidence conflicts sharply, appellate courts resolve the conflict by according due deference to the trial court because of its superior opportunity “to observe the conduct and demean- or of the parties and their witnesses and to weigh, evaluate and assess their testimony” ’ [Pittman v. Great American Life Insurance Co., 512 S.W.2d 857, 861-862[7] (Mo.App.1974)], and because the trial judge has leave to disbelieve all the testimony of any witness [Southwestern Bell Tel. Co. v. Crown Insurance Co., 416 S.W.2d 705, 711[6] (Mo.App.1967)] or to believe part of a witness’ testimony and reject the rest. North Side Finance Co. v. Sparr, 78 S.W.2d 892, 894[4] (Mo.App.1935).” Long v. Lincoln, 528 S.W.2d 512, 513(3) (Mo.App.1975). See Mangan v. Mangan, 554 S.W.2d 418 (Mo.App.1977).

Therefore, even though defendant Theodore Kiser testified that after he received the letter of June 15, 1973, from plaintiff which requested an abstract, “June 15th[?] I called Morgan Abstract Company down here for an abstract,” and the real estate agent Joe Miller testified, “It’s my understanding that an abstract was prepared by the Pulaski County abstract office,” there was no showing that the abstract was delivered or tendered to plaintiff. Defendant Kiser stated that after he called and ordered the abstract on June 15:

“July I called again down there and the abstract was not completed. August I called Morgan over here — abstract company, still the abstract’s not completed. So about two days later I got a message from Morgan saying, ‘Well, the abstract is completed and the fee is $75.00.’ So I write — in turn wired him a — I mean, money order down here for him to send me the abstract. Then about the 28th of August, I believe it was, close there, why I got a relay message back that Mr. Miller was a-holding up my abstract and- — on account of he was in a process for a sale of property now.”

Even in this self-serving testimony, defendant did not suggest that plaintiff had been given the abstract which he had requested; and, although defendant’s reference to Miller “holding up my abstract” could be construed as indicating that Miller had the abstract, it also could be interpreted as meaning Miller was delaying, for the benefit of someone other than plaintiff, the preparation or delivery of the abstract which was then in the possession and control of another party. The trial court, obligated as it was to weigh, evaluate and assess the testimony of each witness, and empowered as it was to accept or reject part or all of the testimony of each witness, apparently either (a) discredited the testimony of defendant Theodore Kiser explaining why plaintiff was not furnished an abstract or (b) in the light of all the circumstances, regarded Kiser’s delay in obtaining and delivering the abstract as a failure to comply with the request therefor, and thus as a breach of the contract. Although from our vantage different conclusions might have been reached, we are unwilling to substitute our judgment for that of the trial court because of its superior opportunity to view the witnesses and evaluate their conduct, demeanor and testimony. Furthermore, the trial court reasonably might have reached its conclusion on the theory that, even if an abstract had been prepared, and even if Miller were shown to have been the agent of plaintiff, and even if Miller had had sufficient access to an abstract to permit a finding that an abstract was delivered to plaintiff, no abstract was offered in evidence and no proof was adduced that the abstract mentioned in evidence met the contractual requisite of “showing merchantable fee simple title to [the] premises in Sellers [defendants],” as contemplated and required by the contract. In fine, although the record is both confused and confusing, it was not error for the trial court to conclude, in the light of both what was, and what was not, said and introduced into evidence that:

First, a letter was sent to defendants on June 15, 1973, in which an abstract was requested for plaintiff Corley;

Second, Section 6 of the contract of sale provided that “When required by Buyers, the Sellers [Kisers] shall furnish an abstract of title to the said premises certified to then current date and showing merchantable fee simple title to said premises in Sellers;”

Third, no abstract was introduced into evidence; and

Fourth, there was no evidence that any abstract, much less one showing a merchantable title in defendants, was ever delivered or even tendered to plaintiff.

The significance of a contractual promise to furnish an abstract and the materiality of a breach of such promise have long been recognized by Missouri courts; and, in the relatively few reported cases involving the right of the purchaser to sue at law for breach of contract where the breach was based solely on the vendor’s failure to furnish an abstract, the right to maintain such an action has been upheld. 77 Am.Jr.2d Vendor and Purchaser § 273, pp. 435-36 (1975), citing Hampton Stave Co. v. Gardner, 154 F. 805, 806 (8th Cir. 1907) and Coble v. Denison, 151 Mo.App. 319, 320, 131 S.W. 719, 720 (1910).

It was also proper for the court to consider both the amount paid by plaintiff in making installment payments under the contract from January 1972 until May 1973, and the improvements made by plaintiff, since “one result of the failure of the vendor to furnish an abstract in accordance with his agreement in that regard is to entitle the vendee to rescind and recover the amount paid by him upon the purchase price, for the vendor is not entitled under those conditions to retain the amount deposited by the purchaser as a forfeiture for failure to complete his contract to purchase,” and “a purchaser is ordinarily entitled to compensation for improvements where the contract fails through a default or failure of title on the part of the vendor.”

Since specific findings of fact were neither requested nor made, we cannot be sure that the court based its judgment on the foregoing theory. However, our concern is whether or not the trial court reached a correct result and not in determining what legal pathway the court may have followed to its judgment. State ex rel. Patterson v. Tucker, 519 S.W.2d 22, 24(1) (Mo.App.1975); State ex rel. Pope v. Lisle, 469 S.W.2d 841, 842(1) (Mo.App.1971). Even though based on an incorrect theory, the judgment should be affirmed if, on the evidence, such result properly could have been reached. C_ L_ R_ v. L_ B_ R_, 555 S.W.2d 372, 375(1) (Mo.App.1977); Ehrle v. Bank Bldg. & Equipment Corp. of America, 530 S.W.2d 482, 490-91(7) (Mo.App.1975); Godsy v. Godsy, 504 S.W.2d 209, 211(1) (Mo.App.1973). In short, the judgment nisi should be affirmed on appellate review if it reasonably can be sustained.

Defendants’ third and final “Point Relied On” is a charge that “[t]he trial court erred [in] denying defendants’ request for special findings of facts and conclusions of law at the close of all the evidence.” Rule 73.01, subd. 1(b), V.A.M.R. does require, inter alia, that the court “dictate to the court reporter, or prepare and file, a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded” and also “include its findings on such controverted fact issues as have been specified by counsel.” However, the same rule specifically states that the court is charged with this responsibility only “[i]f any party so requests before final submission of the case.” (Emphasis ours)

Although defendants’ counsel boldly asserts, as reflected in his above-quoted third point and in his argument thereof, that he had made timely request for findings of fact and conclusions of law, we have seined the transcript in vain without netting any shred of support for that assertion in defendants’ brief. Taking, as we must, the transcript which comes to us bearing the signed approval of opposing counsel, it is clear that no timely request for findings of fact and conclusions of law was made. We necessarily conclude that defendants’ third point is without merit. And, with no specific findings of fact having been requested or made, all factual issues must be considered to have been found in accordance with the result reached.

Convinced, as we are, that the judgment of the circuit court is supported by the evidence, it follows that the judgment of the circuit court should be and accordingly is affirmed.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.

      . This real estate was described as: “All of Lot 1 in Block 1 and all of Lots 1 and 1A in Block 3 of Rench’s Supplemental Plat of Rench’s First Subdivision (sometimes referred to as Rench’s Subdivision) of Pulaski County, Missouri. Subject to any easements and subdivision restrictions of record.” The record indicates that mail to occupants of the house on this tract was addressed to Devil’s Elbow, Missouri.

      . The circumstances or considerations which prompted the deposit of this odd amount are neither disclosed nor relevant here.

      . In his petition, plaintiff Corley prayed for damages in the sum of $7,500.

      . Defendants asserted that some of these improvements and expenditures had not been made by plaintiff.

      . Plaintiff testified that he had paid the taxes the first year but “the second time [second year] I went to pay them . . they’d already been paid by the Kisers.” Of course, the 1973 taxes were not payable and probably not even extended on August 28, 1973, the date of the notice letter.

      . At the trial plaintiff Corley explained that “I got transferred to Florida and wanted to sell the house . . found a buyer, Sgt. Cochran.”

      . In this opinion, we purposely eschew any discussion or determination of Miller’s agency or allegiance, although the record does move us to acknowledge our persuasion that his allegiance was not accorded fully or unreservedly either to plaintiff or to defendants.

      . Rudisaile v. De Beughem, 361 Mo. 917, 921-22, 237 S.W.2d 166, 168(3, 5) (1951); Danzer v. Moerschel, 214 S.W. 849-50(3) (Mo.1919); Leath v. Weaver, 202 S.W.2d 125, 130(8) (Mo.App.1947); Kling v. A. H. Greef Realty Co., 166 Mo.App. 190, 194-95, 148 S.W. 203, 205(1) (1912); Austin v. Shipman, 160 Mo.App. 206, 216, 141 S.W. 425, 428(3) (1911).

      . 77 Am.Jur.2d Vendor and Purchaser § 273, p. 435 (1975), citing, e. g., Coble v. Denison, 151 Mo.App. 319, 131 S.W. 719 (1910); Sheehan v. McKinstry, 105 Or. 473, 210 P. 167, 34 A.L.R. 1315 (1922). See also Gustafson v. Gervais, 291 Minn. 60, 189 N.W.2d 186, 190(3) (1971).

      . 92 C.J.S. Vendor and Purchaser § 292(b), p. 172 (1955), citing, e. g., Cancienne v. McGovern, 325 So.2d 618, 620-21(3) (La.App.1976) (where owner leased and promised to sell to tenant but subsequently repudiated that promise, tenant could recover for improvements because “under such circumstances courts should apply the moral maxim that no one ought to enrich himself at the expense of another”); Alexander v. Cleveland, 79 So.2d 852, 855-56(8) (Fla. banc 1955); Miles v. Graham, 7 Ill.App.3d 17, 286 N.E.2d 497, 499(3) (1972); Tompkins v. Sandeen, 243 Minn. 256, 67 N.W.2d 405, 409(8) (1954); Abraham v. Harvey, 245 Miss. 449, 147 So.2d 639, 644(8) (1962).

      . Simpson v. Spellman, 522 S.W.2d 615, 617(1) (Mo.App.1975); Stallman v. Hill, 510 S.W.2d 796, 798(3) (Mo.App.1974). See also Edgar v. Fitzpatrick, 377 S.W.2d 314, 318(12) (Mo. banc 1964); Producers Produce Co. v. Industrial Commission of Missouri, 365 Mo. 996, 291 S.W.2d 166, 170(1) (Mo. banc 1956); Drydale v. Kiser, 413 S.W.2d 506, 507(2) (Mo.1967); Guild Management Co. v. Oxenhandler, 541 S.W.2d 687, 691(3) (Mo.App.1976).

      . Lopez v. Vance, 509 S.W.2d 197, 204(6-8) (Mo.App.1974); McNeill v. McNeill, 456 S.W.2d 800, 808(9) (Mo.App.1970); McIntosh v. White, 447 S.W.2d 75, 77-78(1-4) (Mo.App.1969); Payne v. White, 288 S.W.2d 6, 7-8(1-2) (Mo.App.1956); Maas v. Dreckshage, 244 S.W.2d 397, 403(4) (Mo.App.1951).

      . Pretti v. Herre, 403 S.W.2d 568, 569(3) (Mo.1966); Holt v. Rabun, 519 S.W.2d 561, 562(1-2) (Mo.App.1975); O’Connell v. Roper Electric Company, Inc., 498 S.W.2d 847, 856-57(11) (Mo.App.1973); Rawlings v. Taylor, 477 S.W.2d 737, 739(1) (Mo.App.1972); Gonseth v. K & K Oil Company, 439 S.W.2d 18, 25-26(12) (Mo.App.1969); Avalon Dev. Co. v. American Italian Const. & Dev. Co., 437 S.W.2d 702, 703-04(1) (Mo.App.1969).

      . Goldstein v. Studley, 452 S.W.2d 75, 79(5) (Mo.1970); Ramacciotti v. Joe Simpkins, Inc., 427 S.W.2d 425, 426(3) (Mo.1968); McCullough v. Newton, 348 S.W.2d 138, 142(2) (Mo.1961); De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Co., 539 S.W.2d 542, 545(1) (Mo.App.1976); Cole v. Cole, 516 S.W.2d 518, 520(3) (Mo.App.1974); Gottlieb v. LaBrunerie, 514 S.W.2d 27, 28(1) (Mo.App.1974).


author: BILLINGS, Chief Judge.

text:
    Lindell Wayne COLLINS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10552.
    Missouri Court of Appeals, Springfield District.
    Sept. 14, 1977.
    Betty A. Pace, Springfield, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Michael H. Finkelstein, Asst. Attys. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Postconviction proceeding in which the Circuit Court of Greene County denied Lin-dell Collins’ motion to vacate consecutive sentences entered on his pleas of guilty to burglary and stealing. The trial court conducted an evidentiary hearing on appellant’s charges of ineffective assistance of counsel and a broken plea bargain for concurrent sentences.

We have reviewed the evidentiary hearing transcript, including the record of the guilty pleas, and read the briefs of the parties. The findings, conclusions and judgment of the trial court are not clearly erroneous. Rule 27.26(j).

The facts alleged in support of appellant’s grounds for relief are refuted by the record made at the time of his pleas of guilty to the charges [Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974)] and by appellant’s testimony at the evidentiary hearing.

The judgment is affirmed.

All concur.


text:
    Herman Eugene WING, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10556.
    Missouri Court of Appeals, Springfield District.
    Sept. 16, 1977.
    Robert P. Baker, Sarcoxie, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Herman Eugene Wing, serving a sentence for possession of burglary tools from Newton County, was denied Rule 27.26 relief and filed this appeal. We affirm.

Wing was convicted in 1969. On direct appeal the legality of a search and seizure of the burglary tools was raised and ruled adversely to Wing. State v. Wing, 455 S.W.2d 457 (Mo.1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971).

Prior to the state conviction, Wing was charged with attempted bank burglary in the United States District Court for the Western District of Missouri. Trial by jury resulted in Wing’s conviction on the federal charge but the district judge entered a judgment of acquittal because he concluded the burglary tools used in evidence in that case had resulted from an unlawful search and seizure.

Prosecution of Wing by Missouri authorities followed the federal proceedings. Wing’s suppression motion of the burglary tools was overruled, and as mentioned earlier, the supreme court affirmed.

While Wing’s appeal of the Newton County judgment was pending, he was convicted in Oklahoma of several counts of armed robbery. During his incarceration in Oklahoma he filed a Rule 27.26 motion directed at the Newton County sentence and judgment. The trial court denied the motion and we affirmed, holding that since Wing was not in custody under the Missouri sentence he could not then maintain post-conviction proceedings attacking the sentence. Wing v. State, 524 S.W.2d 443 (Mo.App.1975).

Since our previous decision, Wing was paroled by Oklahoma authorities and began his Missouri sentence. This motion followed his imprisonment in Missouri.

Wing contends that because the federal district court ruled the burglary tools were seized as the result of an illegal search, this foreclosed the matter once and for all and precluded the Missouri courts from arriving at a different result in the state’s prosecution of him for possession of burglary tools. He avers the doctrine of collateral estoppel as enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1187, 25 L.Ed.2d 469 (1970), is applicable and Missouri was estopped to contend the burglary tools were legally seized by reason of the district court’s determination in the federal case.

The trial court denied Wing’s motion and he lodged this appeal. Three reasons call for affirmance of the trial court’s judgment.

1) A claimed illegal search is not cognizable in a Rule 27.26 proceeding. Beach v. State, 488 S.W.2d 652 (Mo.1972); Ervin v. State, 525 S.W.2d 381 (Mo.App.1975).

2) Where a particular issue is raised and determined on direct appeal, the defendant cannot obtain a second review in a Rule 27.26 proceeding. Sweazea v. State, 515 S.W.2d 499 (Mo. banc 1974). The constitutionality of the search and seizure of the burglary tools was ruled by our supreme court. A shifting of emphasis or dressing up the issue as a different theory does not entitle one to a second review. Sweazea v. State, supra, 515 S.W.2d at 501.

3) The principle of Ashe v. Swen-son is not applicable. Ashe held that when an issue of ultimate fact had once been determined by a valid and final judgment, that issue could not again be litigated by the same parties in any future case.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. M. L. HILL, Defendant-Appellant.
    No. 10533.
    Missouri Court of Appeals, Springfield District.
    Sept. 16, 1977.

      John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John S. Pratt, Jr., Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant M. L. Hill was convicted of the armed robbery of a Springfield market and sentenced to 20 years imprisonment. Because of error in failing to strike a venireman for cause, we reverse and remand.

During voir dire of the jury panel the following occurred:

“MR. MOEHLE: —Any reason that you can think of that I haven’t that you may not be fair to one side or the other, or any reason why I should not pick you as a juror in this case? Yes, sir.
A JUROR: You never did say — you say armed robbery. Did that have to do with a firearm?
MR. MOEHLE: Yes, sir.
THE JUROR: I belong to the N. R. A., and I have a lot of problems over these— things like this. And I think that anybody that uses a firearm in connection with a crime infringes on my rights.
* * * * * *
MR. MOEHLE: You’re referring to your right to bear arms?
JUROR KELLEY: That’s right. I’ve been ridiculed and everything else over the thing. And I believe — also believe in capital punishment on some of this stuff. Something has got to be done more than what we’re doing.
MR. MOEHLE: Do you feel that you would pre-judge or have an opinion as to guilt or innocence in the case because of that — -before you heard the evidence? That is, your opinion might influence you as to guilt or innocence before you heard the evidence?
JUROR KELLEY: I think it could. I was asked this before. I’ve been on a jury panel before over another deal that they was considering it on, and that question was asked me before — that same question.”

The defendant moved to strike Mr. Kelley from the panel for cause. The trial court did not rule the motion but stated defendant could explore the matter further in his voir dire of Mr. Kelley and in the event the defendant renewed his motion at that time, a ruling would be made.

The following transpired:

“MR. PRATT: Mr. Kelley, you indicated that you were a member of the N. R. A. Is that the National Rifle Association?
JUROR KELLEY: That’s right.
MR. PRATT: And I think you indicated that you had rather strong feelings about the use of firearms?
JUROR KELLEY: That’s right.
MR. PRATT: Is that right? O.K. And you said, I believe, that if there was evidence that tended to show that a gun was used in the crime that is charged here today that that alone could influence your opinion. Is that right?
JUROR KELLEY: Well, I would believe in that case that a man ought to be given the maximum sentence.
MR. PRATT: I see. So without regard to the other facts of the case, you would tend to say that that person should be guilty?
JUROR KELLEY: Well, I don’t know. It would certainly make me think. As I say, I’ve been aggravated over these things, and it’s just kind of a thorn in my side, as far as I’m concerned.”

The defendant renewed his motion to strike Mr. Kelley for cause and the court denied the motion.

A defendant is entitled to a full panel of qualified veniremen before he is required to make peremptory challenges. State v. Land, 478 S.W.2d 290 (Mo.1972). The trial court is vested with broad discretion in ruling a challenge of a venireman for cause and his decision thereon is not to be disturbed unless there is a clear abuse of discretion. State v. DeClue, 400 S.W.2d 50 (Mo.1966). Nevertheless, we are bound by State v. Lovell, 506 S.W.2d 441 (Mo.banc. 1974), to conclude the trial court should have excused panel member Kelley for cause. His answers indicate, at the very least, “doubt whether [he] could have accorded defendant his right, a fair and impartial trial. With such doubt present, the trial court should have excused him upon defendant’s challenge for cause. . . . ” State v. Lovell, supra, at 444.

Defendant’s remaining points are without merit.

The judgment is reversed and the cause remanded for a new trial.

All concur.


author: BROCK, Justice.

text:
    The VANDERBILT UNIVERSITY, Appellant, v. Roy K. RUSSELL, Appellee.
    Supreme Court of Tennessee.
    Sept. 6, 1977.
    I. Dyke Tatum, S. McPheeters Glasgow, Jr., Glasgow, Adams, Taylor & Philbin, Nashville, for appellant.
    George E. Barrett, Charles R. Ray, Nashville, for appellee.
   OPINION

BROCK, Justice.

This is an action by surviving dependent husband to recover death benefits under the workmen’s compensation act for the death of his wife. The Chancellor awarded benefits and the employer has appealed.

Appellee’s wife, Mrs. Russell, was employed as a licensed practical nurse by Vanderbilt University Hospital. On the night of May 7, 1973, she fell while changing the sheets on a bed. She was taken to the hospital emergency room but refused to undergo treatment. Her night supervisor, Marian Bogan, observed that her face drooped somewhat and learned from others that her speech was slurred. Mrs. Russell explained that she was not wearing her false teeth. At the emergency room she got out of the wheelchair and returned unassisted to her work station. Later she was seen making an inexpert attempt to smoke a cigarette, apparently not realizing that it was unlighted. She insisted that she was better and that the symptoms had abated, and she remained on duty for the remainder of her shift, against the advice of Mrs. Bogan. She slept all the next day and did not work that night. On May 9 she had another attack and was taken to the hospital for treatment where she died on May 12 of a cerebral thrombosis or “stroke.”

The only expert medical testimony was that of Dr. Gary William Duncan, a specialist in strokes. His opinion was that the attacks of May 7 and May 9 were unrelated to the activities of Mrs. Russell at work or elsewhere. He attributed them to atherosclerosis, a progressive narrowing of the arteries, which is governed by genetic factors, metabolism, and possibly dietary and smoking habits, rather than physical exertions of the patient. The plaintiff, however, raises the issue that the death of the employee is causally related to her employment in that, on the occasion of the May 7 attack, the hospital failed to render appropriate treatment when she fell in the course of her employment and permitted her to remain on the job. Thus, it is insisted that the ensuing attacks and death should be held to have arisen out of her employment. This presents a question not heretofore addressed in any reported decision of this Court.

The common law rule respecting the duty owed by an employer to his employee who becomes incapacitated in the course of employment due to illness or injury has been stated as follows:

“When an employee has, by unforeseen accident to himself, while engaged in the line of his duty, been rendered helpless, the dictates of humanity, duty, and fair dealing demand that the employer if cognizant of the injury furnish medical assistance. Of course, this duty should rest upon the employer only in extraordinary cases, where immediate medical or surgical assistance is imperatively required to save life or avoid further serious bodily injury. It is one which arises out of strict necessity and urgent exigency. The duty arises with the emergency, and with it expires. The fact that the existing emergency occurred through the servant’s own negligence and without fault on the part of the master is immaterial as far as the applicability of the emergency rule is concerned.” 53 Am.Jur.2d at 194, Master and Servant, § 126. See also 56 C.J.S. Master and Servant § 162, p. 815.

This rule has been applied in many jurisdictions. See Hunicke v. Meramec Quarry Co., 262 Mo. 560, 172 S.W. 43 (1914); So. Pac. Co. v. Hendricks, 85 Ariz. 373, 339 P.2d 731 (1959); Carey v. Davis, 190 Iowa 720, 180 N.W. 889 (1921); Batton v. Atlantic Coast Line R. Co., 210 N.C. 756, 188 S.E. 383 (1936); Szabo v. Pennsylvania R. Co., 132 N.J.L. 331, 40 A.2d 562 (1945); Powers v. New York Central R. Co., 251 F.2d 813, 76 A.L.R.2d 1207 (2d Cir. 1958); Gypsy Oil Co. v. McNair, 179 Okl. 182, 64 P.2d 885 (1936); Wilke v. Chicago Great Western Ry. Co., 190 Minn. 89, 251 N.W. 11 (1933); Atchison T. & Santa Fe Ry. Co. v. Hix, Tex.Civ.App., 291 S.W. 281 (1926); Stanley’s Admn’n v. Duvin Coal Co., 237 Ky. 813, 36 S.W.2d 630 (1931); Richard v. Fireman’s Fund Ins. Co., Alaska, 384 P.2d 445 (1963); Rival v. Atchison, T. & Santa Fe Ry. Co., 62 N.M. 159, 306 P.2d 648, 64 A.L.R.2d 1098 (1957).

Does the Workmen’s Compensation Law afford a remedy for an employee in situations similar to those covered by this common law “emergency” rule? As this Court has said, the Workmen’s Compensation Law is “a complete substitute for the previous remedies in tort on the part of the employee.” Liberty Mutual Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 762 (1963). Since that law covers only disability resulting from accident arising out of and in the course of employment, the narrow question presented here is:

When an employee becomes helpless in the course of employment due to illness or other cause not related to his employment, is in dire need of medical attention or other assistance in order to prevent further injury and the employer has the ability to make such medical attention or other assistance available but does not do so, is such disability as results from this failure of the employer to be considered as having arisen out of and in the course of employment?

We hold the answer is “yes.” We think that this is the legislative intent. Cf. Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 161 A.2d 479 (1960); Walck v. Johns-Manville Products Corporation, 56 N.J. 533, 267 A.2d 508 (1970).

Applying the emergency rule to this case, we fail to find any evidence in the record to support a finding of liability on the part of the employer. When asked what course of conduct the employer should have followed upon the occasion of Mrs. Russell’s attack on May 7, Dr. Duncan replied that she should have been advised to enter the hospital as a patient. This is precisely what was done by the defendant. Moreover, the employee, Mrs. Russell, was taken in a wheelchair to the emergency room for examination and treatment but she declined to accept treatment and walked back to her work station and insisted upon finishing her shift. This decision by Mrs. Russell not to accept treatment was, according to the medical testimony, made by a rational person. In the words of Dr. Duncan, “It (referring to the hospital record) says that she refused treatment, and there is no indication that she was disoriented and there is no reason for me to believe that she was.” The rule that we have adopted herein does not require an employer to force medical treatment upon an unwilling employee who is conscious and oriented at the time.

The Chancellor found, and the appellee argues in this Court, that the defendant should not have permitted Mrs. Russell to finish her work shift on the night of May 7 following her attack and that this aggravated her condition and contributed to the final stroke. We are unable to agree. Mrs. Russell continued her shift over the objection of her supervisor, Mrs. Bogan. Moreover, Dr. Duncan did not testify that Mrs. Russell’s return to work had any effect upon the progress of her illness. The evidence shows that Mrs. Russell regained her ability to speak, walk, and use her limbs and that the later attack, which was fatal, came on when she was at home, and was an unrelated event. When pressed to do so by counsel, Dr. Duncan refused to state that Mrs. Russell’s superiors were at fault in not prohibiting her from finishing her shift on May 7.

Accordingly, we conclude that the record does not contain evidence to support the award made by the Chancellor. The decree of the Chancery Court is reversed and the complaint is dismissed. Costs of this appeal are adjudged against the plaintiff.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.


author: FONES, Justice.

text:
    STATE of Tennessee, Petitioner, v. Ronnie WILSON, Respondent.
    Supreme Court of Tennessee.
    Oct. 10, 1977.

      Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, for petitioner.
    Fred L. Myers, Jr., Myers & Myers, Newport, for respondent.
   OPINION

FONES, Justice.

Defendant was indicted for second degree murder, convicted of voluntary manslaughter and sentenced to not less than three (3) years nor more than five (5) years in the penitentiary.

The Court of Criminal Appeals reversed and dismissed, and we granted the State’s petition for writ of certiorari.

In an opinion written by Judge Galbreath and concurred in by Judge Daughtrey, a majority of that Court reached the conclusion that the facts made out a “classic instance of self defense.”

Judge O’Brien dissented. He correctly observed that the issue of self defense was not raised in that Court and expressed the opinion that the verdict was supported by ample evidence that the homicide was the result of an unwarranted, forcible armed attack on the victim.

We reverse the Court of Criminal Appeals and reinstate the conviction and sentence.

The episode took place at Curve Tavern where defendant was the bartender and Sammy Webb, the victim, was a patron. Webb had been drinking beer for several hours and became embroiled in a controversy with another patron; thereafter a controversy developed between Webb and defendant followed by a physical encounter.

All witnesses agreed that defendant was sober and that Webb was drunk, but the other material facts were disputed. Webb may have precipitated the altercation by throwing an ash tray at defendant, which according to some witnesses, missed its mark, but was said by defendant to have struck him on the arm.

The State’s proof was that Webb and defendant struck at each other across the bar with their fists; that defendant then obtained from behind the bar a short club with a knot on the end and struck Webb in the head, knocking him to the floor; that defendant then came from behind the bar and hit Webb several times in the head with the club, while he was still lying on the floor; that the only action taken by Webb after defendant armed himself with the club was to throw up his arm to ward off the blows; that defendant ordered him to leave and he crawled out on his hands and knees. Approximately two (2) hours later Webb appeared at the door of his girl friend’s home, battered and bloody. He wanted to return to the Curve Tavern with a gun, but after she cleaned up his wounds he went to sleep on the couch. The following morning she was unable to awaken him and he was taken to the hospital, where an unsuccessful operation was performed to stop intercranial bleeding and remove blood clots that had formed on the right side of the brain. The pathologist, who performed an autopsy, testified that the bleeding caused the brain to swell and shift downward and resulted in hemorrhages in the brain stem, the connecting pathway to the spinal cord, and pulmonary edema; that these conditions combined to cause Webb’s death. From his observation of the abrasions on Webb’s head and the blood clots beneath his skull he was of the opinion that Webb had sustained more than one hard blow to the head.

In contrast to this version, defendant and his witnesses denied the existence or use of a club; they testified that Webb threw a salt shaker at another patron and defendant told him he would have to pay for it; that he cursed defendant and struck back with his fist hitting Webb only one time, causing no apparent injury; that defendant did come from behind the bar and may have swung at Webb another time but missed; that defendant then told Webb to leave, and may have pushed or shoved him, but that Webb walked out of the tavern unassisted, unblooded and uninjured. The two miles of road from the tavern to Webb’s girl friend’s house was described as heavily travelled, with creeks, bridges and high rocky banks.

Defendant’s evidence supported the theory that Webb assaulted defendant first; that he resisted and struck back with his fists; that no club or any other weapon was used and no injury inflicted upon Webb that could possibly have caused death; that the injuries that caused his death were sustained in some unknown manner after he left the tavern.

To excuse a homicide on the ground of self-defense, the defendant must show that at the time of the killing he was acting upon a well founded fear of death or great bodily harm to himself, and that the actions he took were necessary in self-defense. State v. McCray, 512 S.W.2d 263 (Tenn.1974); Nance v. State, 210 Tenn. 328, 358 S.W.2d 327 (1962); Cathey v. State, 191 Tenn. 617, 235 S.W.2d 601 (1951).

In a homicide case, the invocation of that defense presupposes that defendant killed the victim. In this case, defendant denies that he killed Webb.

There is no evidence in this record to support an alternate theory that, if the jury should believe the State’s evidence that defendant used a club and struck Webb in the head, causing his death, that defendant was justified in using that degree of force because of a genuine fear that he was in danger of death or great bodily harm.

The issue presented to the jury was whether to believe the State’s proof that defendant had used a club, and caused the death of Webb, or to accept the defendant’s proof that he had not used a club, did not kill Webb and that his death was the result of some misadventure that occurred during the two mile, two hour journey to his girl friend’s house.

The jury decided the issue in favor of the State’s theory and the trial judge approved the verdict. In our opinion the evidence does not preponderate against that verdict.

In State v. Johnson, 541 S.W.2d 417 (Tenn.1976), we quoted with approval the following from State v. Grace, 493 S.W.2d 474 (Tenn.1973):

“Neither this Court, nor the Court of Criminal Appeals, is free to re-evaluate the evidence as it pleases. A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” 493 S.W.2d at 476.

The judgment of the Court of Criminal Appeals is reversed and the conviction and sentence reinstated.

COOPER, C. J., and HENRY, BROCK and HARBISON, JJ., concur.


author: RUSSELL, Presiding Panel Judge.

text:
    Charles STINES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 22, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.

      Floyd Don Davis, Winchester, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pike-ville, for appellee.
   OPINION

RUSSELL, Presiding Panel Judge.

This appeal by Charles Stines presents the single question of whether or not one may be convicted of violating T.C.A. § 39-1959 proscribing fraud by the use of a worthless check when the notice per T.C.A. § 39-1960 required to create the statutory presumption of guilty knowledge and criminal intent was not sent until after a criminal arrest warrant had been served, a preliminary hearing held and the accused bound over to the Grand Jury. We hold that the conviction is valid.

The only proof in this case is the State’s proof. Stines gave a bad check (insufficient funds) in the amount of $71.35 to Russy’s Body Shop in payment for repairs done to his truck, thereby obtaining possession of the repaired truck. Apparently the check was passed on October 23,1974, and a warrant for Stines’ arrest was obtained that same day, without any prior notice to Stines. On February 12, 1975, written notice was sent to Stines by registered letter. He did not pay the check, and was indicted on May 5, 1975. The State, upon the trial on September 17, 1975, proved the passing of the worthless check (insufficient funds), proved the fact of the written notice aforesaid, and proved that the check had never been paid. The appellant put on no proof.

The thrust of the appellant’s argument is that he was arrested and charged before he received the written notice (demand to pay), and that he would have been compounding the offense in violation of T.C.A. §§ 39-3102 and 3103, if he had made payment at that time. We reject this argument.

Stines committed this offense when he passed the bad check with fraudulent intent. The proof of this was not exclusively dependent upon the presumption created by T.C.A. § 39-1960 from non-payment after notice. The State could have made out the ease by proving fraudulent intent and guilty knowledge in any number of ways. The fact that the State ultimately relied upon the prima facie case made out by notice and non-payment, per T.C.A. § 39-1960, does not foreclose the possibility that the case could have been made out otherwise. In summary, it is not the failure to pay after notice that is the offense. It is passing the worthless check with fraudulent intent that constitutes the crime.

Nor is it compounding the offense to pay such a check upon receipt of written notice. Payment at that time of the amount certainly owed as a civil debt would do no more than nip in the bud any statutory presumption of guilty knowledge and fraudulent intent. The compounding of offenses statutes are clearly inapplicable.

The convicting evidence is legally sufficient and the trial judge correctly refused to direct a verdict of acquittal. Stines’ conviction, with sentence set at 60 days in jail and a fine of $300.00, is affirmed.

DAUGHTREY, J., and FRANK DRO-WOTA, Special Judge, concur.


author: DAUGHTREY, Judge.

text:
    Jack JETT, I, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 30, 1977.
    Rehearing Denied July 15, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.

      J. Klyne Lauderback, Jr., Bristol, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Asst. Atty. Gen., Nashville, William R. Mooney, R. Jerry Beck, Asst. Dist. Attys. Gen., Blountville, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Jack Jett, was convicted on four charges of passing worthless checks over the value of $100.00, in violation of T.C.A. §§ 39-1959 and 39-1966. The jury sentenced him to six to ten years imprisonment in each case, and the trial judge subsequently ordered that the sentences be served consecutively, for an effective total sentence of 24 to 40 years in the penitentiary.

On appeal, the defendant challenges principally (1) the trial court’s refusal to sever the individual charges, (2) the sufficiency of the evidence to support the convictions, (3) the qualifications of two of the jurors who heard the case, and (4) the validity of the court’s sentencing determination. We find no merit to his contentions and we affirm the convictions.

The four checks in question were written between April 1 and April 12,1976, and the manner in which they were passed evinces a distinct pattern. In each case the victim had advertised a vehicle for sale in a local newspaper and was telephoned by someone who represented himself to be an area used car salesman and who inquired about the advertised vehicle, asking if the owner had clear title. In three of the cases, the defendant appeared shortly thereafter at the home of each victim, struck a deal for the purchase of the advertised vehicle, issued a check drawn on Jack’s Auto Sales which was signed “Jack Jett I,” and took possession of the vehicle and the title in exchange for the check. The facts in the fourth case were essentially similar, except that the victim did not have the title papers at his home. He accepted a $50.00 cash deposit from the defendant in exchange for his promise to deliver title two days later. On the latter date two men who identified themselves as Jack Jett’s sons handed over to the payee a check for $2400.00 and received a receipt for $2450.00, the title papers, and the vehicle. This check was in all respects similar to the other three, except as to amount. (The others were written for $1200.00, $750.00, and $550.00 respectively.) All four checks were refused by the drawee bank and returned to the payees marked “Account Closed.” Some of the victim-payees attempted to locate Jett at the address printed on the check but were unable to locate a “Jack’s Auto Sales” at the address listed. None of them mailed a notice of demand to Jett at that address.

Two bank employees testified for the State. Their records showed that the defendant’s account, on which the four April 1976 checks were written, was overdrawn as of September 3, 1975, and that no deposits were made to his account after that date. The account was “closed” by the bank on December 11, 1975, at which time there was a deficit balance of over $3700.00. The defendant had been given personal notice by a bank vice-president in September 1975 that his account was overdrawn, but no official notice was sent to him when the account was closed in December. The bank eventually charged off the defendant’s deficit balance.

The consolidation of separate indictments for trial is within the discretion of the trial court. Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758 (1964). In Bruce, the Tennessee Supreme Court set out seven sets of circumstances under which consolidation is generally proper: (1) where the offenses charged are similar, related, or connected, or (2) are of the same or similar character or class or (3) involve or arose out of the same or related or connected acts, occurrences, transactions, series of events, or chain of circumstances, or (4) are based on acts or transactions constituting part of a common scheme or plan or (5) are of the same pattern and committed in the same manner, or (6) where there is a common element of substantial importance in their commission, or (7) where the same, or much the same, evidence will be competent and admissible or required in their prosecution, and if not joined for trial the repetition or reproduction of substantially the same testimony will be required on each trial. 378 S.W.2d at 759-60.

The four cases before us meet virtually all of these conditions. It follows that the trial judge committed no abuse of discretion in ordering the four separate indictments consolidated for trial.

The seventh circumstance mentioned in Bruce, supra, becomes relevant in assessing the sufficiency of the evidence to support these convictions. The defendant contends that there is no evidence to convict him in the case involving delivery of the $2400.00 check by his son. From a review of the evidence we think it is clear that Jett’s son was acting as Jett’s agent in the passing of this check. Furthermore, there was sufficient evidence of the similarity between all four checks to support a finding by the jury that the check in question was written by Jack Jett in violation of T.C.A. § 39-1959.

Next the defendant contends that there is not sufficient evidence to support the verdict because the State failed to prove that written notice had been given, as required by T.C.A. § 39-1960. That statute provides:

As against the maker, or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence and create a presumption of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, corporation, firm or person, provided such maker or drawer shall not have paid the holder thereof the amount due thereon within five (5) days after receiving notice that such check, draft or order has not been paid by the drawee.

It has been held that the statute creates a rebuttable presumption as to the existence of two of the elements of the crime defined by § 39-1959, i. e. (1) fraudulent intent and (2) guilty knowledge. Johnston v. Zale Corp., 484 S.W.2d 531 (Tenn.1972). But nothing in T.C.A. § 39-1960 can be read as requiring proof of notice as an element of the crime defined by T.C.A. § 39-1959. While the statutory presumption creates one method of establishing the existence of knowledge and intent, plainly it is not the exclusive method. As this court has previously held:

[I]t is not the failure to pay after notice that is the offense. It is passing the worthless check with fraudulent intent that constitutes the crime.

Stines v. State of Tennessee, Tenn.Cr.App., 556 S.W.2d 234, filed at Nashville, June 22, 1977.

There was direct proof in this case to establish the defendant’s knowledge of insufficient funds on deposit in his bank account. Given this fact and the other proof in the record, including the number of checks written by Jett in a short period of time, we think there was strong circumstantial evidence from which the jury could find that the defendant made and issued the checks in question with the intent to defraud the individual payees of those checks. We therefore overrule all the assignments of error relating to the proof.

The defendant next contends that a mistrial should have been granted when it was learned that two jurors purportedly knew another person who had received a worthless check from the defendant. The record wholly fails to establish that any member of the jury had such knowledge, or was in any other manner disqualified from sitting on the case. The assignment must therefore be overruled.

Finally, the defendant attacks the trial court’s decision to run the sentences consecutively, on the grounds that the court failed to utilize the sentencing standards mandated in Gray v. State, 538 S.W.2d 391 (Tenn.1976). Although the trial judge did not couch his decision in the language of the Gray opinion, a fair reading of the record indicates that he found the defendant to be a persistent offender, which is one of the categories authorized in Gray as a basis for consecutive sentencing. We think there is ample evidence to support this finding: Jett had a record of some eight previous convictions involving worthless checks and obtaining property under false pretenses, stretching back over a sixteen year period, and he had five other felony indictments for bad checks pending at the time these four convictions were obtained. Although technically speaking the trial judge did not label Jett a persistent offender, we do not hesitate to do so. See Adams v. State, 547 S.W.2d 553, 558 (Tenn.1977). We therefore overrule the assignment of error related to the sentencing determination.

We have examined the remaining assignments and find that they are likewise without merit, with one exception. Conviction of T.C.A. § 39-1959 is not included in T.C.A. § 40-2712, which sets out the crimes for which a defendant may be declared infamous. Therefore the judgment must be modified by vacating that portion of it which incorrectly adjudges the defendant to be infamous.

Affirmed as modified.

RUSSELL, Panel P. J., and GAL-BREATH, J., concur.

       The State urges that proof of written notice was unnecessary, because the account had been closed and this reason for non-payment had been stamped on the check. Thus, the State argues, the notice requirement was dispensed with under the terms of T.C.A. § 39-1962(c). Under the provision, the notice specified in § 39-1960 and defined in § 39-1961 becomes unnecessary “if the drawer ... did not have an account with the drawee ... at the time the [check] was issued or dishonored.” The defendant insists that he had an account at the specified times, relying on the bank official’s testimony that although the account was marked “closed” for purposes of further debit entries, it could have been reactivated simply by the deposit of enough money to create a credit balance. Because there is sufficient evidence in the record to establish the existence of actual intent to defraud on the part of the defendant, as well as direct proof of his guilty knowledge, we think it is unnecessary to reach the question of whether Jett had an account with the drawee bank for purposes of T.C.A. § 39-1963.


author: TATUM, Judge.

text:
    Doyle FRAZIER and Clayton Hartsell, Appellants, v. STATE of Tennessee, Appellees.
    Court of Criminal Appeals of Tennessee.
    July 12, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.

      Fletcher L. Ervin, Newport, for appellants.
    Brooks McLemore, Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevier-ville, William M. Leibrock, Asst. Dist. Atty. Gen., Newport, for appellees.
   OPINION

TATUM, Judge.

The defendants appeal from the action of the Trial Court in refusing them probation. They were sentenced to not less than three years nor more than three years in the State Penitentiary after pleading guilty to second-degree burglary. A jury was waived.

The defendants were convicted on 12 October 1976, at which time the Trial Judge ordered a probation report. The probation report was not filed within ten days as required by T.C.A. § 40-2904. The Trial Judge delayed a hearing until 4 December 1976, but still having received no probation report, he granted the defendants a hearing on that date as required by Stiller v. State, 516 S.W.2d 617 (Tenn.1974).

The defendants pled guilty to breaking and entering a dwelling house during the day, and stealing a projector and heater. These articles were found in their automobile immediately after the burglary. There were also numerous witnesses to the burglary.

The defendant, Hartsell, testified that he was intoxicated when he committed this crime. He testified that he had not been previously convicted of any offense, but he failed to answer when his attorney asked whether he had been in previous “trouble with the law.” He said that he committed the offense because of “too much drinking.”

Hartsell’s mother testified that he had been in previous trouble for “just minor things, like drinking and something like that.” She testified that she would not say that Hartsell was an alcoholic, although other people might think so.

Mr. J. C. Hicks testified that he would give Hartsell a job at his truck stop if Hartsell was probated. Beer is sold at the truck stop.

The defendant, Frazier, had previously been given a suspended sentence of eleven months and twenty-nine days for criminal trespass for buying two motorcycles which were stolen. He was still on probation for criminal trespass when he committed the burglary. He testified that he was intoxicated when he committed the burglary. Frazier also had previous convictions for public drunkenness.

A letter from Brockwell Construction Company, offering him employment as a truck driver in their sanitation department, was admitted into evidence.

The State offered no evidence and did not participate in the hearing.

The controlling principles of law governing this case are set out in Stiller v. State, 516 S.W.2d 617, 619-620 (Tenn.1974):

“The defendant in this case stands convicted of a felony. His presumption of innocence has been replaced by the establishment of guilt. He faces punishment. He seeks preferment. He petitions for a privilege. He asks for an act of grace. He has no demandable right to relief. He has no right to insist on terms or to strike a bargain. Hooper v. State, 201 Tenn. 156, 297 S.W.2d 78 (1956).
He has the right to petition the court for probation, the right to a full and fair evidentiary hearing and the right to all the procedural requirements contained in or necessarily contemplated by the statutory scheme.
Since probation is a privilege to be conferred after a determination of the circumstances of the offense, the defendant’s criminal record, his social history, his present condition and, where appropriate, his physical and mental condition, we hold that the decision of the trial judge denying probation is binding and is not subject to appellate review, at his instance, so long as the rights above outlined are fully accorded, and the action of the trial judge is not capricious, arbitrary or palpably abusive of his discretion.”
******
“However, this concept contemplates that probation be restricted to those who are worthy of this largesse of the law.”
******
“If the action of the Court is out of harmony with the tone and tenor of our probation laws to such an extent that the court’s action may be branded as arbitrary or capricious or as palpably abusive of its discretion, the State may pursue appellate review.”

Once a defendant has been convicted of a criminal offense, the burden of proof is upon him to show that he is entitled to the preferment, privilege and the grace of a probated sentence. In Hooper v. State, 201 Tenn. 156, 297 S.W.2d 78 (1956), it was held that probation is a matter of favor and that “there is no requirement that it must be granted on a specific showing.” Of course, the Trial Judge should not grant probation unless a defendant shows that he is a proper subject for rehabilitation.

The Trial Judge, after granting the hearing, stated that he had considered all of the elements required in Stiller v. State, supra. He held that the defendants had not shown that they were proper subjects for rehabilitation and that for this reason, he would require that they serve the sentences imposed. We must affirm the Trial Judge unless we find that he abused his discretion.

No effort was made by either defendant to show that they were persons of good moral character who temporarily went astray when they committed this crime. There was nothing upon which the Trial Judge could predicate a finding that there was a reasonable probability that either of these defendants could rehabilitate themselves and live future lives of good citizenship. One of the defendants was on probation when this crime was committed. Both had histories of excessive drinking habits and they attributed this crime to excessive drinking. There was no evidence other than their own statement that they would or could control their drinking in the future. Even their statements were made in response to leading questions and were not convincing. There was no hint by either defendant that they had repented or regretted having committed the burglary.

The vital considerations for the Trial Judge in considering the question of granting probation are whether the granting of parole will benefit the defendant and the public, whether the defendant is willing and able to rehabilitate himself and whether there is a reasonable probability that the defendant will henceforth practice good citizenship. There is nothing in the record upon which the Trial Judge could have predicated a finding favorable to the defendants on these propositions. There is no showing that either defendant is worthy of “this largesse of the law.”

The Trial Judge did not abuse his discretion and we must therefore overrule the assignments of error and affirm the Trial Court.

WALKER, P. J., and DWYER, J., concur.


author: SAM D. JOHNSON, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Petitioner, v. AMERICAN EMPLOYERS INSURANCE COMPANY et al., Respondents.
    No. B-6566.
    Supreme Court of Texas.
    July 27, 1977.
    Rehearing Denied Sept. 27, 1977.

      A. L. Breeland, Dallas, Brown, Herman, Scott, Dean & Miles, Massie Tillman and J. Shelby Sharpe, Fort Worth, for petitioner.
    Shannon, Gracey, Ratliff & Miller, Eugene J. Dozier and Harold A. Mueller, Fort Worth, for respondents.
   SAM D. JOHNSON, Justice.

American Employers Insurance Company sought a declaratory judgment that a policy issued by Liberty Mutual Insurance Company to U. S. Plywood required Liberty to defend Homette Corporation, American’s insured. The trial court rendered a judgment that Liberty’s policy created a duty to defend Homette. The court of civil appeals affirmed. 545 S.W.2d 216. We reverse and render judgment that Liberty has no obligation to defend Homette.

The sole question is whether the evidence supports the conclusion of the courts below that a truck and flatbed trailer were “borrowed” by Homette under the provisions of a comprehensive automobile liability insurance policy issued by Liberty to U. S. Plywood, a division of Champion International Corporation. Liberty issued a policy to U. S. Plywood which provided coverage for bodily injuries suffered as a result of a loading or an unloading of a vehicle owned by U. S. Plywood. The coverage was limited to employees of U. S. Plywood and lessees or “borrowers” of vehicles owned by U. S. Plywood.

Don Dragoo, an employee of U. S. Plywood, delivered a load of plywood decking to a plant owned by Homette. After parking the vehicle, Dragoo removed the nylon webbing used to secure the six-foot stacks of Novadeck, a type of plywood decking. Homette’s employees began to unload the decking, using forklifts to unload about twenty sheets at a time. Dragoo was standing on the side of the truck opposite from that on which the unloading was begun. Dragoo was not aiding the unloading in any manner. He was merely rolling up the webbing used to secure the decking on the delivery truck when several sheets of the decking struck and killed him.

Subsequently, Dragoo’s widow sued Hom-ette, alleging negligence on the part of Homette, its agents, or its employees which proximately caused Dragoo’s death. American, Homette’s insurance carrier, then sought a declaratory judgment that, under the policy issued by Liberty to U. S. Plywood, Liberty had a duty to defend Hom-ette. American asserted that Homette had “borrowed” U. S. Plywood’s vehicle in order to unload it and, thus, Homette came within the protection of the policy as a “borrower” of U. S. Plywood’s vehicle. The trial court, sitting without a jury, rendered judgment for American. The court filed findings of fact and conclusions of law that Dragoo was not engaged in “unloading” the truck at the time of his death, that Homette exercised no control over the movement of Dragoo or the truck, that Dragoo’s death occurred while the truck was being “unloaded,” and that Homette had “borrowed” the truck for the purpose of unloading it.

The court of civil appeals defined “borrower” as “someone who has, with permission of the owner, temporary possession and use of the property of another for his own purposes.” 545 S.W.2d 216 at 223. That court concluded that Homette met these requirements and therefore was a “borrower.” Although we agree with the court of civil appeals’ general definition of “borrower,” we do not agree that Homette falls within it because these is no evidence that Homette had possession of the truck and trailer rig.

We base our holding on recent changes in coverage afforded by automobile liability insurance. Prior to the addition of the loading and unloading endorsement to the automobile liability policy neither the automobile policy nor the standard liability policy defined which insurer had liability coverage for injuries sustained upon the premises of one who was insured under a general liability policy during the loading and unloading of a vehicle not owned or hired by the general liability insured. This question was settled by the later addition of the loading and unloading clause: the automobile liability insurer would provide coverage for injuries sustained as a result of negligence in the loading and unloading of the vehicle. Commercial Standard Ins. Co. v. American Gen. Ins. Co., 455 S.W.2d 714, 717 (Tex.1970). The inclusion of the loading and unloading clause expanded the coverage of the policy from that afforded by the phrase “ownership, maintenance or use of any automobile.” American Employers Ins. Co. v. Brock, 215 S.W.2d 370, 372 (Tex.Civ.App.—Dallas 1948, writ ref’d n.r.e.); Fireman’s Fund Insurance Co. v. Canal Insurance Co., 411 F.2d 265, 268 (5th Cir. 1969); Penley v. Gulf Insurance Company, 414 P.2d 305 (Okl.1966); Columbia So. Ch. Corp. v. Manufacturers & W. Ind. Exch., 190 Cal.App.2d 194, 11 Cal.Rptr. 762 (Dist.Ct.App.1961). Texas has adopted the broader majority view that “loading and unloading” embraces not only the immediate transfer of the goods to or from the vehicle, but also the complete operation of transporting the goods between the vehicle and the place from or to which they are being delivered. Travelers Insurance Co. v. Employers Casualty Co., 380 S.W.2d 610 (Tex.1964). Under the complete operation approach the coverage provided by a loading and unloading clause extended to a broad group of persons who were not employees of the owner of the vehicle; the only requisite for coverage was that they were using (unloading) the truck with the consent of the owner. Travelers Insurance Co. v. Employers Casualty Co., supra, at 614.

General rules of construction lead us to conclude that the policy exclusion for persons who were unloaders but not “borrowers” of the vehicle was intended to limit the insurer’s liability for injuries resulting from acts of these nonemployees of the owner of the vehicle. The purpose of an exclusion is to take something out of the coverage that would otherwise have been included in it. Maryland Casualty Co. v. Texas Fireproof Storage Co., 69 S.W.2d 826, 827 (Tex.Civ.App.—Waco 1934, writ ref’d). An interpretation that gives a reasonable meaning to all provisions is preferable to one that leaves a portion of the policy useless, inexplicable, or creates surplusage. Melton v. Ranger Insurance Co., 515 S.W.2d 371, 374 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n.r.e.). The inquiry then becomes whether, given the limiting effect that the exclusion was intended to have, the court of civil appeals correctly analyzed the evidence in the present case.

The evidence in the record reflects that Dragoo parked the truck and Homette then began to unload. Homette’s employees did not move the truck on this occasion nor is there evidence that U. S. Plywood consented on any other occasion to the movement of the truck by Homette’s employees. There is no evidence that Hom-ette’s employees had ever in the past moved a U. S. Plywood truck as part of the unloading operation. There is no evidence that Homette’s employees had ever instructed Dragoo to move the truck from one location to another. There is no evidence who had the keys to the truck at the time of the accident. The only evidence in the record is the statement by the sales manager of U. S. Plywood that Homette had express or implied permission to unload the decking. It is impossible to conclude from this statement that Homette had sufficient possession to be a “borrower.” The only contact Homette’s employees had with the truck was to drive up to it with forklifts and remove the decking. If, as American argues, this was enough to bring Homette within the policy, the “borrower” requirement would be meaningless because one would need only to be an unloader to also be a “borrower.” We decline to adopt American’s construction of the policy. While unloading is a “use” of the vehicle, the conjunction “and” in the definition of “borrower” indicates that one must also have possession of the vehicle to be a “borrower.” Possession connotes the right to exercise dominion and control over the truck and trailer. There is no evidence that Homette had this right.

The court of civil appeals cited a number of cases that involved insurance policies containing “borrower” language. For various reasons these cases are not dispositive of the instant case. In neither Gary Safe Company v. Transport Insurance Co., 525 S.W.2d 64 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ), nor White v. Great American Insurance Co. of New York, 343 F.Supp. 1112 (M.D.Ala.1972), did the court explain the basis for its conclusion that an unloader was a “borrower.” The court in National Auto. & Cas. Ins. Co. v. Glens Falls Ins. Co., 493 S.W.2d 909 (Tex.Civ.App.—Tyler 1973, no writ), and in Prudhomme v. Vancouver Plywood Co., 240 So.2d 587 (La.App.1970), did not discuss the “borrower” provision in the policy. The facts were much more favorable than here to a finding that the vehicle was “borrowed” in Walter S. Koydranski Co., Inc. v. Jamestown M. Ins. Co., 40 App.Div.2d 187, 338 N.Y.S.2d 634, aff’d mem., 34 N.Y.2d 542, 354 N.Y.S.2d 104, 309 N.E.2d 873 (1974). The court did not deal with the question of possession in Broome County Co-Op. Fire Ins. Co. v. Aetna Life and Casualty Co., 75 Misc.2d 587, 347 N.Y.S.2d 778 (Sup.Ct.1973).

In conclusion, we do not find the cases cited by the court of civil appeals persuasive. We hold that merely proving one had the right to remove goods from a truck is not evidence one was a “borrower” of the truck. There must be evidence of possession. The record in this case discloses no such evidence.

The judgments of the trial court and the court of civil appeals are reversed and judgment is rendered declaring that Liberty Mutual Insurance Company is not obliged to defend the suit.

BARROW, J., not sitting.

      . The policy provided:
      “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of Coverage A bodily injury or Coverage B property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile, .

      “PERSONS INSURED. Each of the following is an insured under this insurance to the extent set forth below:
      “(a) the named insured;

      “(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
      “(1) a lessee or borrower of the automobile, or “(2) an employee of the named insured or of such lessee or borrower;

      “When used in this policy . . ‘automobile’ means a land motor vehicle, trailer, or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto) . . .”
      The policy does not define “borrower.” Neither party contends that the “lessee” requirement applies.

      . The trial court, in the pertinent findings of fact, stated:

      “4. It was understood and had been the practice in the past that upon the arrival of U. S. Plywood’s truck on Homette’s premises, Hom-ette employees would unload the truck;
      “5. Such was the situation on the date in question;
      “6. While on the premises of Homette, Dragoo drove U. S. Plywood’s truck to the unloading area of Homette;
      “7. Homette employees were standing by at such time to unload the truck. Upon Dragoo’s arriving at the unloading area, he removed the bindings that retained the decking to the bed of the truck and then stood beside the truck while employees of Homette, using a forklift, began unloading the cargo;

      “9. At no time during the proceedings did any employees of Homette exercise any control over the movements of Mr. Dragoo or the truck;

      “11. At the time of his death, Dragoo was not engaged in ‘unloading’ the truck; .

      . For example, in Travelers Insurance Co. v. Employers Casualty Co., supra, the automobile liability carrier for Capitol Aggregates, Inc., a company which delivered concrete to a construction jobsite, was required to pay the amount of a settlement entered into between the beneficiaries of workers killed in an accident and Borders Steel Erection Company. The workers were employed by the general contractor on the job and were killed when a crane, owned by Borders and used to unload Capitol’s trucks, buckled and fell.


author: PER CURIAM.

text:
    Fred HERRON et ux., Petitioners, v. H. L. LACKEY, Respondent.
    No. B-6736.
    Supreme Court of Texas.
    July 27, 1977.
    Glen L. Kirby, Kountze, for petitioners.
    Lee Roger Ratliff, Silsbee, for respondent.
   PER CURIAM.

Pursuant to Texas Rule of Civil Procedure 483, we grant the above application for writ of error and without hearing oral argument modify the judgment of the Court of Civil Appeals. The trial court awarded H. L. Lackey judgment for labor and materials furnished by him to Fred Herron. The Court of Civil Appeals reformed and affirmed the judgment. 554 S.W.2d 708. However, the court held that the judgment was to draw interest at the rate of nine percent per annum from the date the Court of Civil Appeals’ opinion was handed down. The trial court’s judgment was handed down before Article 5069-1.05 was amended providing that interest on judgments was to be nine percent per annum. In American Paper Stock Co. v. Howard, 528 S.W.2d 576 (Tex.1975), we stated that when the trial court’s judgment is erroneous, the judgment of the Court of Civil Appeals must take its place and plaintiff is entitled to interest from the date of the erroneous judgment. Therefore, Lackey was entitled to draw interest at six percent, being the effective rate before the recent amendment, from the date of the trial court’s judgment. Accordingly, the judgment of the Court of Civil Appeals is reformed in accordance with this opinion and affirmed in all other respects.