text:
    Joseph J. TALLAL, Appellant, v. The FORT WORTH NATIONAL BANK, Appellee.
    No. 16569.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 23, 1964.

      Thompson, Knight, Wright & Simmons, and Sol Goodell, Dallas, for appellant.
    Stone, Parker, Snakard, Friedman & Brown, and Lawton G. Gambill, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The question to be decided on appeal is whether, on its motion for summary judgment as the plaintiff, a bank is entitled, as a matter of law, to collect its debt from the obligor on a note it received as collateral security — where defendant obligor has admitted that the note so received was an accommodation note upon which he was the accommodation party (i. e., executed by him for the purpose of lending his name to the party who borrowed from the bank and pledged the same as security for the money borrowed), — when such fact is not alleged in either the bank’s pleadings or its motion for summary judgment, but is established in the evidence before the court at time of the hearing.

It is our conclusion and holding that the bank is entitled to summary judgment in its behalf. The lower court did grant summary judgment.

The obligor, who was the defendant in the t.rial court, alleged that the plaintiff bank did not take his note (as collateral security) for value, but the whole of the evidence before the court (comprised of admissions, depositions, sworn pleadings and affidavit of the defendant obligor in another legal proceeding) established for purposes of the summary judgment proceeding — in view of absence of counter-affidavit or evidence by the defendant — that the note was received for value.

In such respect the case therefore became one “on all fours” with that which was the subject of the opinion in Felker v. Thomas, 83 S.W.2d 1055 (El Paso Civ.App., 1935, no writ hist.). We are in accord with the analysis of the situation there under consideration by Justice Higgins, in particular with the construction to be made of Vernon’s Ann.Tex.Civ.St. Title 98, “Negotiable Instruments Act”, Art. 5933, “Consideration”, § 29, “Liability of accommodation party”, relative to when the person who has executed a note to be delivered as security (for a loan obtained by another) is to be deemed and treated as an accommodation maker or party.

The admissions of the defendant obligor establish that while he was promised consideration for his act of accommodation he received no value for his execution of the instrument to be used as collateral security, and which he knew was to be so used. This was a situation like unto that in Felker v. Thomas. In such a case the defendant obligor is bound as an “accommodation party” under provisions of § 29 of Art. 5933 of the Negotiable Instruments Act. And in such a situation the obligor, as the accommodation party, may be sued singly, for he is to be treated as having contracted as a principal, and the legal relationship is that of principal and creditor because the accom-modator has contracted in the capacity of a maker. Reed v. Buck, Tex., 370 S.W.2d 867, 871 (1963).

It has been said that in considering motions for summary judgment a court is entitled to “look through and beyond the pleadings” at the legal situation exhibited before it and the relative rights of the parties existent thereunder. Does this mean that we can disregard the fact that neither the bank’s pleadings nor motion for summary judgment claimed or pointed out its right to recover under its motion perforce the aforesaid § 29 ? The defendant obligor, appellant herein, demonstrates how he might have filed a counter-affidavit which woud have raised an issue of fact had he been aware that the bank might present the situation as a premise for an affirmance of the judgment of the trial court. Of course, if summary judgment procedure is to be effective, an admission in a deposition which is fatal to a party’s cause or defense should be given effect unless the answering papers on the motion create, under oath, an issue by reason of such explanation or contradiction as will be offered at trial.

In Womack v. Allstate Insurance Company, 1S6 Tex. 467, 296 S.W.2d 233, 237 (1956), it was held that where the evidence before the court for purposes of summary judgment establish the existence of an issue of fact precluding summary judgment had it been plead, but which was not plead, the granting of such was improper, for it would be only when the pleadings, depositions, admissions and affidavits show that there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law. In our case the state of evidence before the court shows that there was no genuine issue of fact, on a ground established by the evidence, but which was not pleaded. Upon the hearing there was no motion that the court exclude from consideration any evidence not supported by pleading. In such state of the record we hold that the evidence was before the court for whatever it was worth, and that it had worth in the same sense'that it would have had in a trial upon the merits before the court without a jury. Texas Rules of Civil Procedure 67, “Amendments to Conform to Issues Tried Without Obj ection”.

We therefore hold that the plaintiff bank must be held to have established its right to summary judgment in that the evidence before the court established that there was no genuine issue as to any material fact precluding entry thereof. It would be immaterial whether such fact was established outside the formal pleadings. For purposes of summary judgment the pleadings would be treated as though it was embraced therein

It is true, as defendant points out in his brief, that the bank did not undertake to answer his points of error, and for the first time seeks to maintain its judgment on the theory that the points are immaterial in that the evidence established that defendant was liable in any event because he was an accommodation party. But we are in accord with the bank’s theory. Being so in accord we do not write upon the points of error, for though they be sustained (and the bank apparently concedes that the defendant’s contentions upon some of them are correct), yet would our judgment be one of affirmance.

Judgment affirmed.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Patricia Ann GRANT, Appellant, v. Bill F. GRIFFIN, Jr., Administrator of the Estate of Wilbert Edward Suggs, Appellee.
    No. 88.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 29, 1964.
    Rehearing Denied Nov. 12, 1964.

      Robert Fairchild, Fairchild & Hunt, Center, for appellant.
    Ralph Zeleskey, Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellee.
   SELLERS, Justice.

This is a suit by Patricia Ann Grant to recover damages for personal injuries against the administrator of the estate of Wilbert Edward Suggs, as a result of a car wreck in which both parties were riding, when the car left the road and struck a tree killing Wilbert Edward Suggs and severely injuring Patricia Ann Grant. The alleged grounds of recovery was the negligent conduct of Wilbert Edward Suggs in drinking and driving his car at a dangerous high rate of speed over wet roads, which caused the car to leave the road and strike the trees. This conduct on the part of Suggs was over the protest of Patricia Ann and she is the only witness to his conduct. Her testimony as to what happened as related in appellant’s brief is as follows:

“Suit by Patricia Ann Grant against the administrator of the estate of Wilbert Edward Suggs to recover damages for personal injuries sustained on June 16, 1963, as the result of an automobile accident. The appellant alleged and attempted to prove, by evidence excluded by the court as set forth in appellant’s bill of exception that on June 16, 1963, Wilbert Edward Suggs came to the home of appellant, and at approximately 4:00 o’clock p. m. appellant and the said Wilbert Edward Suggs left appellant’s home a second time in a Ford Falcon pickup, with the said Wilbert Edward Suggs driving, and drove to the home of Butch and Lanell Beckham on the Mt. Enterprise highway about 4i^ miles from the city of Timpson. That while at the home of Butch and Lanell Beckham, the said Wilbert Edward Suggs, unknown to appellant, drank two cans of beer. That at approximately 5:30 o’clock p. m. appellant and the said Wilbert Edward Suggs left the home of Butch and La-nell Beckham and started back towards the city of Timpson, Texas. That upon arriving in the city of Timpson, Texas, and approximately 20 minutes after leaving the' Beckham home, the said Wilbert Edward Suggs, without stopping the car, pulled a six-pack carton of beer out from behind the seat and started drinking the beer while driving around in the city of Timpson. That a heated argument occurred between appellant and the said Wilbert Edward Suggs, whereupon the said Wilbert Edward Suggs began to curse and drive reckless. That after the argument started, the said Wilbert Edward Suggs started driving the Falcon pickup towards Tenaha, Texas, from Timpson, Texas, whereupon the appellant requested that the said Wilbert Edward Suggs stop the car and let her out. That the said Wilbert Suggs slowed down and appellant opened the door, thinking that the said Wilbert Edward Suggs was going to let her out of the automobile. That the said Wilbert Edward Suggs never brought the automobile to a stop, and refused to allow appellant to get out. That the said Wilbert Edward Suggs continued to drink the beer and drive the car toward Tenaha, Texas, and refused the several requests of the appellant to let her get out of the pickup. That approximately 41/2 miles from the city of Timpson, on the Tenaha road, while the said Wilbert Edward Suggs was driving around 80 miles per hour, with rain falling heavily, the said Wilbert Edward Suggs ran off the side of the road, and struck a bunch of trees, killing the said Wilbert Edward Suggs and severely injuring the appellant. That from the time the said Wilbert Edward Suggs started drinking the beer in the city of Timpson to the time of the accident at approximately 6:30 o’clock p. m., appellant had no chance to get out of the car. That at the time Wilbert Edward Suggs came to the home of appellant he showed no signs of having consumed any alcoholic beverage nor did he consume any alcoholic beverage up until the time the appellant and the said Wilbert Edward Suggs left the home of appellant for the second time, nor did the said Wilbert Edward Suggs, at the time appellant and the said Wilbert Edward Suggs left the home of the Beckhams, appear to be under the influence of intoxicating beverage, walk with a stagger or wobble, slur his speech, nor make any signs whatever that appellant could tell he had been' drinking any alcoholic beverage.
“That after appellant and appellee had announced ready for trial, and before the voir dire examination had commenced, and in anticipation of proffered testimony, the appellee presented a motion in limine to the court to exclude any testimony by the appellant of any statement made by the deceased Wilbert Edward Suggs, of any observation by appellant of the deceased Wilbert Edward Suggs, of any action of the said Wilbert Edward Suggs, or of any conversation between appellant and the said Wilbert Edward Suggs from the time appellant left her home in the pickup driven by the said Wilbert Edward Suggs to the time of the accident made the basis of this suit, for the reason that same, if allowed, would be in violation of Article 3716, Texas Revised Civil Statutes [Vernon’s Ann.Civ.St] The court sustained appellee’s motion in limine and during the trial appellee renewed its objection when appellant attempted to-testify to the action of the said Wilbert Edward Suggs, appellant’s observation of the said Wilbert Edward Suggs, physical facts existing at the time of and prior to the accident, movements of the vehicle in which appellant was riding at the time of and prior to the accident, and appellant’s repeated requests prior to and up until the time of the accident for the said Wilbert Edward Suggs to stop the pickup and let her out, from the time appellant left her home with the said Wilbert Edward Sugg's up until the time of the accident from which this suit arose. That the court sustained appellee’s objection, after which appellant asked that the jury be retired from the courtroom so that the testimony of appellant which had been objected to could be given by the appellant for the purpose of perfecting the appellant’s bill of exception. After the jury was returned to the courtroom, appellant requested of the court that the entire testimony of appellant which had been offered outside the presence of the jury for purposes of perfecting appellant’s bill of exception be admitted into evidence in the presence of the jury, to which appellee objected, and said objection was sustained by the court, the court stating that said objection was sustained by reason of Article 3716 and not on any form of the question or nature of it. That upon the jury being returned, testimony was offered showing injuries and damages suffered by appellant.”

We might add to this statement that the record reflects that this couple were sweethearts and had been for some four years or more.

Upon the trial before a jury the court ruled that the evidence above offered by appellant was not admissible and was prohibited by Article 3716, Texas Revised Civil Statutes, well known in this state as the Dead Man’s Statute. The appellant, not having any other evidence as to the deceased’s conduct, rested its case and the court instructed the jury to return a verdict for the defendant and it is from a judgment entered on the verdict that appellant has duly prosecuted this appeal.

Article 3716 provides:

“In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

The language of this statute has been construed by the Supreme Court in the case of Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, as follows:

“ * * * The words ‘transaction with,’ as used in statutes similar to ours relating to the admissibility of transactions with decedents, have often received judicial interpretation, and have been held to include every method by which one person can derive impressions or information from the conduct, condition, or language of another.
“ * * * The object of the statute was to prohibit the interested heirs and legal representatives from testifying to any facts, or opinions, based upon observations, arising out of any transaction with the decedent which the decedent could, if living, contradict or explain. Death having sealed the lips of one of the parties, the law, for reasons founded upon public policy, seals the lips of the other.”

We are of the opinion that the ruling of the trial court excluding the testimony of the appellant was proper in view of the above statute as interpreted by the Supreme Court.

The appellant, in her brief on this appeal, relied entirely upon one case and that is Harper v. Johnson, 162 Tex. 117, 345 S.W.2d 277, in which the Supreme Court held that the above statute did not apply in a case where two strangers had a head-on collision on a highway. As we construe this opinion, the Supreme Court simply held that the act of strangers colliding on the highway could not be construed as a transaction between the parties under this statute.

That situation was quite different from what we have here where the parties were riding in the same car and the survivor undertakes to describe .the conduct of the deceased, his statements, his driving, the speed of the car, and the refusal to let the appellant out of the car, any one of which would amount to a transaction between the parties which is prohibited by this statute.

The judgment of the trial court is affirmed.


author: DAVIS, Justice.

text:
    Thomas E. JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 7582.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 27, 1964.
    Rehearing Denied Nov. 3, 1964.

      Fred A. Carver, Beaumont, for appellant.
    W. G. Walley, Jr., Beaumont, for ap-pellee.
   DAVIS, Justice.

A condemnation case. Appellee sought to condemn .018 of an acre of land situated in Jefferson County. The Special Commissioners awarded the appellant $1100.00 for the land. Appellant accepted the award. Appellee excepted to the award and perfected its appeal to the County Court at law. Trial was to a jury. The appellee offered in evidence, for jurisdictional purposes only, the original statement; the Order of the Judge appointing the Special Commissioner; the Oaths of the Special Commissioners; the certificate of service by U.S. certified mail, which showed no return; the award of the Special Commissioners, and the objections and exceptions of the County Commissioners to the award made in favor of appellant. The State further offered in evidence the fact that the appellant accepted the award of the Commissioners. Appellee did not offer in evidence the Resolution, Order, or Minutes of the State Highway Commission or the Commissioners Court. The appellee did not offer any evidence at all to prove an unsuccessful effort to negotiate the purchase of the property before the condemnation proceedings were commenced. Neither did they actually prove service of notice by the Special Commissioners of the condemnation on the appellant. The burden was on the appellee to make the above proof.

There was no stipulation as to the jurisdiction of the County Court at law, thus the burden of proof between the parties remained consistently on the con-demnor. If there had been such a stipulation of jurisdiction, the burden of proof as to the value of the property would have shifted to the condemnee, and he would have the right to open and close the evidence and to open and close the arguments. City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, N.W.H.

Since there was no stipulation of jurisdiction of the County Court at law, the burden of proof was upon the con-demnor to demonstrate the right to condemn, and that every step in the new process of law enjoyed by the Constitution and the condemnation statutes had been legally and duly followed, and this must be established before there can be any finding of jurisdiction to entertain the case for hearing. Vey v. City of Ft. Worth, Tex.Civ. App., 81 S.W.2d 228, Writ Dism’d.

According to Art. 1, Sec. 17 of the Texas Constitution, Vernon’s Ann.St., “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, * * * (Emphasis added.) The requirement that “adequate” compensation be made for private property is vested upon the Magna Charta. This power is necessary in that it is deemed essential to the life of the State. Imperial Irr. Co. v. Jayne, 104 Tex. 395, 138 S.W. 575.

The appellee, after offering the foregoing evidence, rested. The appellant filed a motion for instructed verdict, setting out the fact that the State had failed to prove an unsuccessful effort to agree with the appellant as to the amount of compensation to be paid for the property in question. And the further fact that the State had failed to prove the right to condemn said property, and that such proof of said right was essential to the maintenance of this cause before the County Court at law. Appellant further filed a motion to dismiss the cause because of the lack of such proof. The motions were overruled. The trial court granted a motion of the appellee for an instructed verdict. He instructed the jury to return a verdict for appellant in the sum of one dollar. There was no proof of the value of the property. Judgment was entered and appellant has perfected his appeal. He brings forward one point of error.

By his point, appellant says the trial court erred in directing the verdict for the State, for the reason that the State failed to establish a prima facie case. In his brief, the appellant sets out the fact that the appellee failed to perform its duty of proving the jurisdiction of the court for the reason that the appellee did not offer in evidence the Resolution, Order, or Minutes of the State Highway Commission or Commissioners Court to condemn the property, and made no proof of an unsatisfactory effort to agree with the appellant on a price to purchase the property. The burden was on the appellee to prove the jurisdictional facts. 22 T.J.2d 403-4, Sec. 287. In 22 T.J.2d 403-4, Sec. 287, it says: “Although the applicant for condemnation generally has the burden of proof on the whole case * * * ”, it seems that when the jurisdiction of the court has been stipulated, or proved, the burden of proving the value of the property being taken, and other damages, shifts to the condemnee. 22 T.J.2d 404, Sec. 287; Rayburn’s Texas Law of Condemnation, Sec. 83; Aue v. State, Tex. Civ.App., 77 S.W.2d 606, Er. Ref.; Miers v. Housing Authority of the City of Dallas, 153 Tex. 236, 266 S.W.2d 842.

Since there were no stipulations or proof of jurisdiction, the County Court at law was without authority to instruct the jury to bring in the verdict and to enter judgment thereon. Denton County v. Brammer, Tex.Civ.App., 350 S.W.2d 888; Reversed, modified and rendered on other grounds, 361 S.W.2d 198; Estate of Crim v. State, Tex.Civ.App., 371 S.W.2d 574, N.W.H.

The point is sustained.

The judgment of the trial court is reversed and the cause is remanded.


author: DIXON, Chief Justice.

text:
    Helen BROWN, Individually and as Independent Executrix, Appellant, v. Margaret LANE et vir, Appellees.
    No. 16412.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 9, 1964.
    Rehearing Denied Nov. 13, 1964.
    Dan W. Lane, Fort Worth, for appellant.
    Wardlow Lane, Center, for appellees.
   DIXON, Chief Justice.

Helen Brown, individually and as Independent Executrix of the Estate of Helen Irene Reib, Deceased, brought this suit against Margaret Lane and husband alleging that the sum of $2,000 withdrawn by Margaret Lane from a joint account following the death of Helen Irene Reib is the property of the estate of the deceased. Margaret Lane is the daughter of the deceased.

Helen Irene Reib left a will in which she named Helen Brown as Independent Executrix. The will provided that Margaret Lane was to have a ring and that the remainder of the estate should go to Helen Brown.

On May 28, 1962, with money which was her separate property, Helen Irene Reib had opened a joint savings account in the name of herself and Margaret Lane in the South Oak Cliff State Bank. The account card, signed by both Helen Irene Reib and Margaret Lane, provides in part as follows:

“I hereby agree to the. Terms and Conditions of the South Oak Cliff State Bank. Savings Dept., as contained in their pass book, upon which Savings Accounts are accepted, * * *
“Below please find duly authorized ■signatures, which you will recognize in the payment of funds or the transaction of other business on our (my) account.”
******
“South Oak Cliff State Bank is hereby .authorized in accordance with an Act of 41st Legislature of Texas, Reg.Sess., hnown as S.B. 81, to pay to either of the undersigned or the survivor of them any funds now on deposit in this .•as well as any addition hereafter made thereto by either of the undersigned.”
* % * * * *
■“1 * * * and mother and daughter by _, Agent,’ is hereby authorized to withdraw during our joint lives any and all funds at any time in this account. This authority may be revoked by either of us by written notice delivered to said Bank; * * *”

Appellant takes the position the agreement shown on the account card was entered into solely for the protection of the Bank under Art. 342-710, Vernon’s Annotated Civil Statutes, Banking Code of 1943; and that as between Helen Irene Reib and Margaret Lane it must be viewed only as a testamentary agreement which has no validity because it does not meet the requirements of our statute in regard to the execution of wills.

Both appellant and appellees filed motions for summary judgment. Appellees’ motion was sustained.

Appellant cites us to the opinion of our Supreme Court in Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48, 51-52, wherein the Court says that the survivorship provision there under consideration is not tantamount to a provision that “the certificate is held by them as joint tenants with right of sur-vivorship.” But the Court then goes on to say:

“However, the language appearing on this receipt card does serve to vest in Mrs. Krueger some present interest in and control over the certificate as well as the contractual right to possession of the proceeds as survivor. We therefore say that it does create a presumption of such intention on the part of the purchaser of the certificate and places the burden of proof on one claiming to the contrary.”

Appellant claims that an affidavit attached to and made a part of appellees’ motion for summary judgment rebuts any presumption there may have been that the agreement on the account card was intended as a joint tenancy agreement. This affidavit, executed by an employee of the Bank, contains this statement:

“I knew Helen Irene Reib during her life time and I recall that she came into the bank on the 28th day of May, 1962 and made a deposit and I handled the matter for the bank. She, Mrs. Reib stated that she wanted this money to go to Mrs. Margaret Lane who was with her. I then told her that they would have to sign one of these joint survivors cards and they both signed the card, a true copy of which is attached to this affidavit, marked D-l, Mrs. Reib and Mrs. Lane signed the card on each side. I had known Mrs. Reib for over twenty years. She was very definite and positive in stating that she wanted this money to go to Mrs. Margaret Lane — she mentioned another party but said she was already taken care of and she wanted Mrs. Margaret Lane to get this money at her death.”

We do not construe the affidavit as appellant would have us construe it. Though Mrs. Reib may have told the affiant that she wanted Mrs. Lane to get the money at her death, this in effect is saying no more than the written agreement itself says in the survivorship provision. Neither the statement by Mrs. Reib as shown in the affidavit, nor the text of the written agreement negatives the idea that it was the intention of Mrs. Reib to vest in her daughter a present defeasible interest in the money in question as well as a contractual right to possession of the proceeds. Quite the contrary, the agreement contains no qualification or limitation whatever on the right of Margaret Lane to withdraw all or any part of the money whenever she might desire to do so, or to spend it for any purpose she might desire.

In the Krueger case our Supreme Court cites with approval the holding of In re Staver’s Estate, 218 Wis. 114, 260 N.W. 655, wherein it is said in effect that “in the absence of clear evidence that the contract was a convenience account or was created under an express agreement that a third party would hold the proceeds for the benefit of the depositor or his heirs, the complete ownership must be held in the survivor.”

We think the above holding is applicable to the situation presented in the case at bar. See also Davis v. East Texas Savings & Loan Ass’n, 163 Tex. 361, 354 S.W. 2d 926.

The judgment of the trial court is affirmed.

Affirmed.


author: fPER CURIAM.

text:
    G. D. LASSETER, Appellant, v. Joe L. SMALLWOOD, Appellee.
    No. 7448.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1964.

      Fred Stockdale, Morton, for appellant.
    Jack D. Young, Muleshoe, for appellee.
   fPER CURIAM.

Appellee, Joe L. Smallwood, has moved to dismiss this appeal filed herein by appellant, G. D. Lasseter, on the grounds that no notice of appeal was properly and timely given by the appellant.

Appellant’s transcript and statement of facts were filed in this court on July 1, 1964. Appellee’s motion to dismiss was filed October 5, 1964.

The judgment of the trial court was entered on May 2, 1964. Appellant’s appeal bond giving notice of appeal was filed on June 1, 1964. This is the only notice of appeal that appellant gave. This notice would have been sufficient if it had been timely filed.

Rule 353 Texas Rules of Civil Procedure provides: “(a) An appeal, when allowed by law, may be taken by notice of appeal ' (1) in open court, noted on the docket or embodied in the judgment, order overruled motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.”

Since appellant did not give notice of ■appeal within the time prescribed by the • rules, we have no jurisdiction except to dismiss this appeal. J. B. Glasscock v. Black, Tex.Civ.App., 272 S.W.2d 388 (writ dismissed); Howe v. Howe, Tex.Civ.App., 223 S.W.2d 944 (writ refused); Donald v. John Vinson, Inc., Tex.Civ.App., 344 S.W. 2d 751 (writ refused).

The appeal is dismissed.


text:
    G. P. HARDY, Appellant, v. John G. CALHOUN, Appellee.
    No. 7611.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 15, 1964.
    James W. Hughes, Texarkana, for appellant.
    C. B. Wheeler: Wheeler, Watkins, Hubbard & Patton, Texarkana, for appellee.
   DAVIS, Justice.

This is. a zoning case between appellant, G. P. Hardy, and appellee, John G. Calhoun, who wants to build a tennis court in the City of Texarkana, Texas. The house and lot of appellee is in a First Dwelling House District within the city. Only one of the neighbors of appellee does not want the tennis court. The City Engineer advised appellee that a permit was not necessary, and he'commenced building the tennis court. Appellant then appealed to the Board of Adjustments from the decision of the City Engineer. The Board of Adjustments sustained the decision of the City Engineer, which was in turn sustained by a judgment of the District Court. Appellant has perfected his appeal, and brings forward only one point of error.

By the point of error, appellant says the Board of Adjustments of the City of Texarkana, Texas, erred in finding a tennis court is an accessory use customarily incident to a dwelling within the City of Tex-arkana, Texas, and the District Court erred in holding that the decision of the Board of Adjustments was supported by substantial evidence.

Sec. 30.5 of the Code of Ordinances of the City of Texarkana, Texas, reads, in part, as follows:

“Section 5. District ‘A’. (First Dwelling House District).
“Use Regulations
“In District ‘A’ no building, structure, land or premises shall be used, and no building or structure shall be hereafter erected, moved, constructed or altered except for one or more of the following uses:
“1. Dwellings.
“2. Churches and community buildings.
“3. Public parks and playgrounds, golf courses, public recreation buildings and public museums.
“4. Public schools, elementary and high, and private schools with curriculum equivalent to that of a public, elementary, or high school, and institutions of higher learning, including stadiums and dormitories in conjunction, if located on the campus.
“5. Municipal buildings, public libraries, police stations and fire stations.
“6. Railroad passenger stations and railroad right of ways, not including railway yards.
“7. Farms, nurseries, truck gardens and greenhouses limited to the propagation and cultivation of plants.
“8. Telephone exchanges and equipment.
“9. Accessory uses, customarily incident to the above uses and located on the same lot therewith, not involving the conduct of a retail business;
“(a) the term accessory use shall include customary home occupations such as the office of physician, dentist, surgeon, dressmaker, musician, or artist under the following restrictions

Under Sec. 30-3, Definitions, Subsection 1, an accessory building or use is defined as “a subordinate building, a portion of the main building, or a use customarily incident to and located on the same lot occupied by the main building or use of the property.” Actually, a tennis court is not a building. It could be called a structure, but it is located on the same lot as the residence, and will be used in connection therewith. All persons owning property within 200 feet of appellee gave their oral or written notice that they had no objections to the tennis court, except appellant.

At the hearing before the Board of Adjustments it was shown that appellee was a doctor and lives with his wife and four children, ages 3^4 to 14 years, and the tennis court was to be used by them, solely for their own private use, recreation and enjoyment in connection with and as a part of their residence. The evidence shows that there are two other tennis courts within the City of Texarakana. Just what constitutes a use, “customarily incident” to the use of the property depends largely upon the thinking of the appellee. There is nothing in the Ordinance that makes the playing of tennis illegal, erroneous, contrary to law, or a nuisance. It is merely a purpose to create a place for recreation by the appellee, and his family. There have been no tennis court cases decided by the courts of Texas. But we must look to the thinking of the individual. In doing so, we must decide whether or not the actions anticipated by them are arbitrary, capricious, an abuse of discretion, illegal, erroneous, contrary to law, or constitutes a nuisance. Such is not the case. Tennis is a famous game. It is usually played outside on a tennis court that is made of concrete slab with a mesh across the center. It affords the players much exercise, and we can assume that according to the appellee, it could be a healthy sport. It provides him a place to keep his children at home and supervised, and makes a wholesome family recreation. The Zoning Ordinance does not prevent a private tennis court, swimming pool, basket ball court, volley ball court, croquet court, barbecue pit, or similar use. It doesn’t make any difference whether the areas are residential, business or industrial. Appellant relies most heavily upon the case of Appeal of Lord, 168 Pa.Super. 299, 77 A.2d 728, by the Superior Court of Pennsylvania. The Supreme Court of Pa., in Appeal of Lord, 368 Pa. 121, 81 A.2d S33, reverses the Superior Court decision and directed the Board of adjustments to issue the permit to build an antenna. In this case, there is an excellent discussion of the fundamental rights of property owners within the United States. It pointed out that the principle of the sanctity of private property underlies several articles of Magna Carta, and then went on to say:

“In the Industrial Age the pendulum slowly but surely turned backwards. Gradually the landowners’ rights became less absolute, and the maxim of the Roman Law (Sic utere tuo ut ali-enum non laedas) to so use your own land as not to injure another, was adopted and became part of the common law of England. This endless swaying struggle between the rights of a Sovereign and the rights of an individual was resolved in America by allotting to each certain rights, powers and boundaries. Both our Federal and State Constitutions provide for and guarantee to every citizen certain unalienable rights and liberties; and with respect to property limit the paramount right of the Sovereign State to take an owner’s land for a public use only, and even then, only if it pays the owner just compensation. Fifth and Fourteenth Amendments to the Constitution of the United States; Article I, § 10; Article XVI, § 8, Constitution of Pennsylvania, P. S.
“More recently, i. e., in the last 25 years, the swing of the pendulum in favor of sovereignty has been precipitated because of wars, a depression, and the complexities of modern life. This trend has taken the form of planning commissions and zoning boards, which have become very fashionable; and their acts, ordinances or regulations have tended to further restrict an owner’s right in his own land.
“While it is obviously true that the ancient adage of Coke (originally found in Staumford’s ‘Pleas of the Crown’ in 1557), that ‘A man’s house is his castle’, is, in the words of Rudyard Kipling ‘One with Nineveh and Tyre’, an owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and property. These include a right to use his own home in any way he desires, provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws or zoning or police regulations which are constitutional. It is now well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation whenever they are necessary for the preservation of public health, safety, morals or general welfare, and not unjustly discriminatory, or arbitrary, or unreasonable, or confiscatory in their application to a particular or specific piece of property. White’s Appeal, 287 Pa. 259, 134 A. 409, 53 A.L.R. 1215; Taylor v. Moore, 303 Pa. 469, 154 A. 799; Kline v. City of Harrisburg, 362 Pa. 438, 451, 68 A.2d 182; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322; Jennings’ Appeal, 330 Pa. 154, 198 A. 621; Ward’s Appeal, 289 Pa. 458, 137 A. 630; Bryan v. City of Chester, 212 Pa. 259, 61 A. 894; Taylor v. Township of Haverford Township, 299 Pa. 402, 149 A. 639; Perrin’s Appeal, 305 Pa. 42, 48, 156 A. 305, 79 A.L.R. 912; Euclid Village v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; St. Louis Poster Advertising Co. v. City of St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599; Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156.
“Restrictions imposed by zoning ordinances are, however, in derogation of the common law and (at times) of the liberties, rights and privileges guaranteed by the Constitution of the United States and the Constitution of Pennsylvania and therefore must be strictly construed. Lukens v. Zoning Board of Adjustment, [367] Pa. [608], 80 A.2d 765; Kline v. City of Harrisburg, 362 Pa. 438, 451, 68 A.2d 182.”

The Supreme Court of Pennsylvania found no prohibition under the zoning ordinance to prevent the building of the antenna. We find that there is no provision in the Texarkana Zoning Ordinance to prevent the building of a tennis court.

In the case of Thomas et al. v. Zoning Board of Adjustment of City of University Park et al., Tex.Civ.App., 241 S.W.2d 955, N.W.H., the people were interested in building a private swimming pool. It seemed that this case is controlling of the issues presented here. The proof in that case showed two other private swimming pools had been approved in University Park. The court did not consider the number of pools, but considered the question of whether or not the pool was such accessory or subordinate use of the home as naturally appertains thereto and customarily follows as a mere incident to the use and enjoyment of the premises. The court held so, as a matter of law, and stated as follows:

“After careful consideration, we are of the opinion that appellants’ first four points must be sustained. We conclude that appellants, as a matter of law, are entitled to construct and use the proposed private swimming pool, solely for their own private recreation, enjoyment and convenience in connection with and as a part of their use of their homestead, under said Zoning Ordinance. We hold that the proposed use of appellants’ premises is an accessory or subordinate use permitted by the Zoning Ordinance; that the proposed swimming pool is an accessory structure permitted by said ordinance and that its construction and use for said purposes, in connection with and as a part of their use of the homestead, is not prohibited by said ordinance.”

It will be noted there was testimony that there is a trend toward better homes having tennis courts, as well as barbecue pits. The court went on to say:

“The foregoing statements and decisions are referred to for the purpose of showing how far the law has gone, in homestead cases, in holding that use of premises, comparable to the use which the Thomases desired to make of their premises, have been recognized as proper uses to impress lots with the homestead character. The right to privately swim on one’s own premises is not different from the right to play tennis or croquet, or operate a barbecue pit there. Since the ordinance designates the use of the property as residential and contains no provision against swimming, and since none arises by necessary implication, we think appellants’ common law rights to engage in such an activity in the use of their home is not limited by the ordinance. Furthermore, the right to so use the premises is granted by paragraph 4 of Section 4, which authorizes such ac-cessor or subordinate use of the home as naturally appertains thereto and customarily follows as a mere incident to the use and enjoyment of the premises and building for a ‘single-family dwelling.’ The primary intent was to allow subordinate uses that did not involve public or business activities. It is significant that the only specific limitation on the general authority to use the premises for purposes accessory or subordinate to its use as a single-family dwelling is against using same for commercial purposes. The premises are occupied primarily as a one-family dwelling. The use of the premises for swimming is an accessory or subordinate use, naturally appertaining thereto, and one which customarily follows as a mere incident to the use and enjoyment of the premises and building as a single-family dwelling.” (Emphasis added.)

The point of error is overruled. The judgment of the trial court is affirmed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. John SANGALLI et al., Appellees. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William BUSER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Joyce Ferris Nedde, Frankfort, Raleigh O. Jones, Louisville, for appellant.
    Thomas C. Carroll, Carroll & Carroll, Robert E. Grubbs, Louisville, Thomas F. Marshall, Frankfort, for appellees.
   WILLIAMS, Judge.

These two highway condemnation cases have been consolidated because there is a common question of law involved in each.

The Commonwealth filed proceedings in the Jefferson County Court seeking to condemn land for the purpose of constructing the Kentucky Turnpike. Judgments were entered in county court and each of the parties attempted to appeal to Jefferson Circuit- Court. That was in 1954. In 1962, the Commonwealth moved the Jefferson Circuit Court to set the cases for trial. Whereupon the landowners filed motions to dismiss the appeals. The appeals were dismissed and the judgments of the Jefferson County Court were affirmed. These appeals result.

The circuit court dismissed the appeals on the ground that all parties were guilty of laches. Although we could possibly subscribe to that reasoning, we are of the opinion there is a more forceful reason the appeals should have been dismissed.

In its attempt to appeal in each case from the county court judgment the Common-' wealth filed a statement of appeal which merely indicated that the Commonwealth believed the awards were too high. Nothing more ■ was done by the Commonwealth. - KRS 177.087 provides that an appeal to the circuit court in a highway condemnation proceeding is perfected “by filing with the clerk of the circuit court a certified copy of the judgment, a statement of the parties to the appeal, and any exceptions the appellant has to the award made by the commissioner.” We held in Commonwealth ex rel. Curlin v. Taylor, Ky., 279 S.W.2d 813, that when those three steps were taken the circuit court has jurisdiction of the case.

In White v. Commonwealth, Ky., 287 S.W.2d 62S, an appeal was dismissed because a statement of the parties to the appeal was not filed. No statement of the parties to the appeal was filed by the Commonwealth in these cases. Consequently, the appeals must be dismissed, although the other two steps were possibly satisfied.

The Commonwealth did not ask for it, but a certified copy of the judgment was filed in each of these cases pursuant to motions of the landowners. Since the copies became a part of each record, failure to file them by the Commonwealth would not of itself be fatal to its appeal. Commonwealth of Ky., Dept. of Highways v. Wilkins, Ky., 320 S.W.2d 125.

No exceptions were taken by the Commonwealth to the awards made by the commissioners in county court. The Commonwealth’s allegation in its statement of appeal that the awards were too high may be taken as a ground of appeal, but was not an exception to the awards in county court.

But it was held in Commonwealth ex rel. Curlin v. Moyers, Ky., 280 S.W.2d 513, that filing of exceptions is not a jurisdictional requirement. Filing grounds of appeal satisfies the statutory requirement set out in KRS 177.087.

Also in these cases no summonses were issued in compliance with CR 72.01. The same fact existed in Commonwealth ex rel. Curlin v. Taylor, Ky., 279 S.W.2d 813. It was said there that the necessary steps to perfect the appeal had been taken; consequently, the circuit court had jurisdiction although the summonses were not issued within the 30 days permitted for an appeal. But in that case the summonses eventually were issued, whereas so far as the record indicates here, no summonses have ever been issued.

The Commonwealth has failed to take all of the necessary steps in order to perfect appeals to the circuit court. As a consequence the appeals were properly dismissed.

The judgments are affirmed.


author: CULLEN, Commissioner. MONTGOMERY, Judge

text:
    Robert J. JOBE et al., Appellants, v. CITY OF ERLANGER, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Rehearing Denied Dec. 4, 1964.

      James A. Nolan, Ware, Bryson & Nolan, Covington, for appellants.
    Harry L. Riggs, Erlanger, for appellee.
   CULLEN, Commissioner.

The appellants are resident freeholders in an area of some 350 acres proposed to be annexed by the City of Erlanger, a third-class city. They have undertaken to appeal from a judgment of the circuit court, in a remonstrance suit, upholding the annexation.

The statute governing annexation by third-class cities, KRS 81.190(4), provides that there shall be no appeal from the judgment of the circuit court in a remonstrance suit. There is a similar denial of an appeal in the statute relating to annexation by fifth-class cities, KRS 81.230(3), but an appeal is permitted by the statutes applicable to cities of the first, second, fourth and sixth classes.

The appellants maintain that the statutory denial of an appeal in third-class city cases is unconstitutional as discriminatory, special legislation. A similar contention was made, and rejected, in Yount v. City of Frankfort, Ky., 255 S.W.2d 632, wherein the court cited Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089, as authority for the proposition that the legislature constitutionally may provide different methods of annexation for different classes of cities.

We believe the holding in the Frankfort case is sound. Under Section 156 of the Kentucky Constitution cities may be divided into classes for the purposes of organization and government. Acts relating to organization and government of cities may distinguish between cities according to class without violating constitutional prohibitions against special legislation. Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631. Annexation is a matter of organization and government of cities. Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089.

The appellants argue that even if they have no statutory right of appeal they nevertheless are entitled to an appellate review of the constitutional question of whether the annexation constitutes a taking of property without due process of law and without compensation. See Chesapeake & Ohio Railway Company v. Murphy, 314 Ky. 309, 234 S.W.2d 969. The appellants say that the annexed area includes two farm tracts, one of 60 acres and the other of 40 acres, and a two-acre orchard tract, none of which is adaptable for municipal uses. The appellants contend that the taking of these tracts is unconstitutional under the ruling in Chesapeake & Ohio Railway Company v. City of Silver Grove, Ky., 249 S.W.2d, 520.

It is doubtful whether these appellants are entitled to raise the constitutional question, because they do not own any of the three tracts claimed to be incapable of municipal use. However, the claim of unconstitutionality cannot in any event be sustained, because the evidence does not show that the three tracts are incapable of or inadaptable for municipal uses or purposes, within the meaning of the Silver Grove case, but only that the tracts are not presently being devoted to urban use.

We have accepted the appeal only for the purpose of passing on the constitutional questions raised. The question of whether the city adequately sustained its burden of proof is not reviewable.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

The majority opinion rejects the argument of unconstitutionality on authority of Yount v. City of Frankfort, Ky., 255 S.W. 2d 632. In that case the statute authorizing a third-class city to annex certain territory was held not to violate the due process clause of the Federal Constitution.

This is no answer to my objection that. the statutory denial of an appeal in third-class city annexation cases is a denial of the equal protection of the law to appellants in violation of the equal protection clause of the Federal Constitution. The concept of equal protection of the laws stems from the American ideal of fairness. Equal protection to all is the basic principle on which rests justice under the law. The clause in the Federal Constitution forbidding the states to deny equal protection of the laws guarantees the treatment alike in the same place and under like circumstances and conditions of all persons subjected to state legislation. The Fourteenth Amendment of the United States Constitution expressly forbids a state to deny any person within its jurisdiction equal protection of the laws. It is a guaranty that all persons subjected to state legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed. 16A C.J.S. Constitutional Law § 502, pages 296 and 297.

As is pointed out in the majority opinion, KRS 81.190(4) expressly provides that there shall be no appeal from the judgment of the circuit court in annexation proceedings involving third-class cities. It is further pointed out that there is a similar denial of an appeal in the statute relating to annexation by fifth-class cities. Appeals are permitted in similar cases involving cities of tlie other four classes.

There is no valid basis for saying that appeals shall be permitted in second and fourth-class city annexation cases and that an appeal shall be denied in a third-class city. Cities are classified on the sole basis of population. Kentucky Constitution, Section 156. Express provision therein is made for the change of classification of a city as its population may increase or decrease. Such differences in population cannot be made the basis for denying the freeholders of territory contiguous to a city the right to appeal in an annexation proceeding. There is no reasonable relationship between population and appeals. There is no difference in circumstance or condition between freeholders of territory contiguous to second, third, and fourth-class cities, except the difference in population of the respective cities. It is possible that the population may be the same or substantially so in cities of different classes.

The inevitable conclusion is that the statute which denies an appeal in this case is a denial of the equal protection of the law under the Federal Constitution.

Accordingly, I respectfully dissent.


author: DAVIS, Commissioner.

text:
    BOARD OF EDUCATION OF HARRODSBURG, Kentucky, et al., Appellants, v. Joy Burgin BENTLEY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.

      W. Earl Dean, Harrodsburg, for appellants.
    John L. Keller, Harrodsburg, for ap-pellee.
   DAVIS, Commissioner.

This appeal tests the validity of a school board regulation requiring that any student who shall marry shall withdraw from the school, subject to being readmitted after one year. The trial court adjudged that the regulation is invalid and granted a permanent injunction against enforcement of the regulation as applied to appellee.

The Board of Education of Harrods-burg Independent School District (hereinafter designated as the Board) duly adopted the questioned resolution in 1957; the text of the resolution is :

“Any student, either boy or girl, who marries, automatically must withdraw immediately from school and cannot re-enter school for one full year, and then only as a special student with permission of the principal. A special student cannot attend home room or study halls or enter into any class activities, social events or athletics. If, upon re-entering school after the year has elapsed, the student becomes pregnant, she will automatically withdraw until after the birth of the child.”

The record reflects that the Board’s policy, as enunciated by the resolution, was widely publicized, and was known to the appellee prior to the time of her marriage. Although the text of the resolution remained unchanged, it is admitted that the Board had uniformly followed the policy of permitting a student to complete the six-week term in progress at the time of the marriage.

Appellee was a regularly enrolled student at Harrodsburg High School and a member of the junior class when she married April 10, 1964. The six-week term then current lacked one and a half weeks of completion. Appellee was permitted to remain as a student until the close of that six-week period; she was required to withdraw from school and dropped from its rolls April 24, 1964.

Appellee then enrolled in Mercer County High School, but remained there only a day and a half. Her mother withdrew her from that school, and sought to have her reinstated in Harrodsburg High School. The Board, at a specially called session, heard the request of appellee and her parents, but expressed the view that it could not make an exception as to appellee since it had uniformly invoked the rule theretofore. This suit resulted.

Certain fundamental precepts were recognized by the trial court, and are acknowledged by the litigants:

The Board is vested with the duty and power to control and manage the Har-rodsburg High School. The Board is authorized to enforce reasonable regulations, including disciplinary rules. KRS 160.160; 160.290; 160.370.

The Board is empowered to suspend or expel pupils for violations of lawful regulations of the school. Other grounds for suspension or expulsion are prescribed. KRS 158.150.

The government and conduct of public schools, in general, is committed to the discretion of the school board. Courts will not interfere with the board’s exercise of such discretion unless it appears the board has acted arbitrarily or maliciously. Casey County Bd. of Ed. v. Luster, Ky., 282 S.W.2d 333, and authorities therein discussed.

It is also recognized by all that KRS 158.100 mandatorily directs that each board of education shall provide public educational facilities for residents of its district who are under twenty-one years of age. There is no specific statutory provision dealing with the matter of married pupils under age twenty-one.

With these accepted principles in mind, we turn to the specific controversy at bar. The appellee was sixteen years old at the time of her marriage. The marriage ceremony was publicly performed in a Har-rodsburg church. The marriage must have been approved by appellee’s parents, pursuant to the provisions of KRS 402.210, although the record is silent as to that.

There is no suggestion that any sensationalism or scandal preceded or followed the wedding. It is admitted that appellee is now, and has been throughout her lifetime, a moral and respectable person. There has been no complaint of misbehavior or misconduct on her part. She has maintained a creditable, above average scholastic record.

For the Board, it was shown that the 1957 regulation had been adopted, upon public demand of parents and patrons, by reason of an “epidemic” of marriages of high school students. Moreover, the Board predicated its policy upon its belief, from experience and counsel of its superintendent, that such marriages during school term cause discussion and excitement, thereby disrupting school work and leading to dropping out of school. The Board expressed its view that student marriage is detrimental to the best interests and welfare of a good and successful school system.

It is recalled that the regulation in question provides for readmission of a married student after “one full year, and then only as a special student with permission of the principal.” However, the record reflects that it has been the uniform policy in enforcement of the rule that the married student be permitted to complete the current six-week term. It was explained that the disruptive impact of student marriage is by reason of widespread student body discussion and excitement just prior to and just following the marriage. Apparently, the regulation as originally promulgated sought to alleviate the disruption generally said to be attendant at the time just before and just following the marriage. As noted, however, quite the opposite practice has been consistently followed. The pupil (including the present appellee) is allowed to remain actively in full school routine during the immediate time following the marriage — but no longer than the end of the then current six-week term.

It is accepted, of course, that marriage is favored by public policy. 35 Am. Jur., Marriage, § 3. The General Assembly has imposed various requirements looking toward preservation of the institution of marriage. KRS Chapter 402. Specifically, Kentucky’s legislature has placed its sanction upon marriage of a female who has attained age sixteen. KRS 402.020(5). The safeguard of written consent from one in loco parentis is demanded for marriage participants under age twenty-one. KRS 402.210.

On the other hand, no question arises as to the sincerity of purpose of the Board here. It has acted upon the counsel of its superintendent and its own experience in administration of the affairs of the school under its jurisdiction. We have neither the right nor the inclination to substitute our view for the Board’s view as to the exercise of its sound discretion as it relates to matters within the province of the Board’s responsibilities. It does become our function to examine the regulation and determine whether it is unreasonable or arbitrary, and therefore illegal. (There is no suggestion that the Board has acted maliciously.) In 47 Am.Jur., Schools, § 155, it is said:

“However, a pupil may not be excluded from school because married, where no immorality or misconduct of the pupil is shown, nor that the welfare and discipline of the pupils of the school is injuriously affected by the presence of the married pupil.”

In support of that text is cited McLeod v. State ex rel. Colmer, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161. Our attention has been directed to other decisions from sister jurisdictions as touching upon the question at bar. See Nutt v. Bd. of Ed. of City of Goodland, 128 Kan. 507, 278 P. 1065; Cochrane v. Bd. of Ed. of Mesick, 360 Mich. 390, 103 N.W.2d 569; Kissick v. Garland Independent School Dist., Tex.Civ. App., 330 S.W.2d 708; State ex rel. Indiana High School Athletic Ass’n v. Lawrence Circuit Court, 240 Ind. 114, 162 N.E. 2d 250; State v. Chamberlain (Com.Pl.Ct. of Ohio), 175 N.E.2d 539; State ex rel. Baker v. Stevenson, (Com.Pl.Ct. of Ohio), 189 N.E.2d 181; State ex rel. Thompson v. Marion County Bd. of Ed., 202 Tenn. 29, 302 S.W.2d 57. It may be observed that the Tennessee decision just cited is the only one which may be said to lend support to the position of the Board here. In most of the cases just cited the courts upheld regulations prohibiting married students from certain cocurricular and extracurricular activities. In so doing, the courts adverted to the factor that the particular board was not making marriage, ipso facto, the basis for denial of the student’s right to obtain an education.

For the appellee it is pointed out that all persons meeting the residence, moral and mental qualifications are entitled to an opportunity for publicly furnished education until attaining age twenty-one. In today’s economy we judicially note the increasing demand for education as a prerequisite for employment. Certainly, there is no reason to suppose that the marriage of a student will diminish the need of that student for an education. — indeed, just the contrary would appear the case.

It is our conclusion that the decision of the trial court is correct; the instant regulation is arbitrary and unreasonable, and therefore void. The fatal vice of the regulation lies in its sweeping, advance determination that very married student, regardless of the circumstances, must lose at least a year’s • oling. Moreover, the manner of ai '■ ment of the regulation accentuate u-ict that the regulation is not reaL ’’'v.i, .elated to its purported purpose. It is ...erted for the Board that the most intense disruptive impact of a student marriage occurs during the time just preceding and just following the marriage. Yet, under the uniformly followed pattern of administration of this regulation, the married student is permitted to remain in school during all of the time preceding the marriage, and may remain for a maximum of six weeks thereafter. Such procedure, even though premised on the Board’s commendable desire to permit the student to complete the current term, effectively frustrates the prime purpose of the regulation. Additionally, after it may be reasoned that the disturbing influence of the event has subsided, the situation is returned to the “spotlight” of student attention by compelling withdrawal of the married student; after a year, assuming the principal is willing, the student is to be reinstated, thus injecting another occasion for student body agitation. ' .

The regulation has a further inherent weakness in that it merely provides that a married student may be permitted to resume school if, but only if, the principal permits it. Of course, we will not assume that the principal would arbitrarily deny permission —but there is a complete absence of any standard or guideline for the principal; neither has the ousted student any gauge by which to estimate whether the principal’s consent will be forthcoming after a year.

Implicit in this record is the desire of the Board to permit this appellee to “work something out” so that her education would not be interrupted. A review of the Board’s minutes warrants the conclusion that the Board felt that its hands were tied — principally because it never had made any previous exception in such cases. The unreasonable and arbitrary effect of the regulation is thus demonstrated, since it imposes the identical result in every case, without regard to the circumstances of any case. The Board’s discretion is foreclosed in advance, no matter what the facts. Such prejudgment is unreasonable and arbitrary.

We are not to be understood here as deciding that some reasonable and appropriate regulation in this area may not be adopted; we do hold the instant regulation invalid.

Without undertaking to restate the arguments which may be advanced in support of either side of the question, we state that we are persuaded that the view quoted (47 Am.Jur., Schools, Sec. 155) is sound. Consequently, it is our holding that the regulation here is an arbitrary and unreasonable one.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Addie Lee DENTON, Appellant, v. MONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.

      A. Jack May, Danville, for appellant.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., P. J. Clarke, Sr., Boyle County Atty., for appellee.
   MOREMEN, Judge.

This is an appeal from a judgment by which Addie Lee Denton was adjudged to he mentally ill, dangerous, uncontrollable and incompetent to manage her own affairs. The record is very unsatisfactory, but a brief narrative statement of the evidence .and the proceedings had was filed and from this and from various uncontroverted statements in the brief we glean the following facts: Addie Lee Denton had completed a temporary thirty-five day commitment for •observation under KIRS 202.120. Thereafter a certificate by two staff physicians of the Kentucky State Hospital was filed in the circuit court in which they stated it was their opinion that appellant was mentally ill, and they recommended confinement. This certificate was treated as a petition under KRS 202.240 which deals with procedures in cases of formal inquests.

At about eleven o’clock a. m. on the day of the inquest, Hon. A. Jack May was appointed counsel for appellant. The inquest began about one-thirty in the afternoon. During the interim counsel informed the court that an objection would be raised as to the reading of any affidavits by doctors as to the mental condition of appellant. At the trial the only evidence introduced concerning appellant’s mental state was the affidavits of two physicians from the Kentucky State Hospital which were read by the county attorney to the jury.

At the outset we should examine the ••“nature of an inquest. We have held that a ; lunacy inquest is a special proceeding neither wholly civil nor wholly criminal. We have also recognized that the public is concerned in any trial which involves personal liberty. Therefore, an inquest has been regarded generally as a quasi criminál proceeding. Cadden v. Commonwealth, Ky., 242 S.W.2d 409.

Although lunacy inquests are not concerned with criminal intent or criminal acts they may result in depriving the defendant of his liberty and his property. This deprival should be obtained only by the due processes of law under constitutional guarantees.

We have therefore concluded that when a proceeding may lead to the loss of personal liberty, the defendant in that proceeding should be afforded the same constitutional protection as is given to the accused in a criminal prosecution.

KRS 202.140 provides, among other things, that if the petition filed requests that the defendant be adjudged incompetent, the court shall impanel a jury and administer a special oath to them and instruct them upon the whole case. Subsection (3) of that section reads:

“In any case the court may in its discretion require other evidence in addition to the petition and the certificate of the hospital staff, and may require the attendance at the hearing of the certifying staff members and any other witnesses. The defendant or anyone representing him may summon witnesses and present evidence as in other cases.”

In the case at bar, and presumably in other cases (see opinion Attorney General 37.777) it has been assumed that it is not necessary for the examining physicians to appear in court and testify. The foregoing section of the statute attempts (and apparently has achieved) a shifting of the burden of proof from the Commonwealth to the defendant. Certificates of physicians are deemed sufficient to sustain a verdict and the duty is placed upon the defendant to summons witnesses and "present evidence as in other cases.” The fact, in criminal cases, is that the duty is upon the Commonwealth to prove its case.

The first sentence of § 11 of our Constitution reads:

“In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.”

This right of confrontation is also guaranteed by the Sixth Amendment to the Constitution of the United States.

We recognize that the constitutional command to guarantee “equal protection of the laws” means equal rights for all those similarly situated and that some classification is permitted. But we cannot assume that the bare accusation of insanity acts as a means of proper classification so that a person so accused may be deprived of his liberty under this singular statute without granting to him his full constitutional guarantees. The fact that all persons so accused may be similarly tried is no answer. The accusation is not a conviction.

We have concluded therefore that the burden of proof under KRS 202.140 and the manner of proceeding and the rules of evidence should be the same as those in any criminal or quasi criminal proceeding and the court erred in admitting the evidence of the doctors by certificate or affidavit over objection of appellant’s counsel.

Judgment reversed.


author: CULLEN, Commissioner.

text:
    Paul H. GRIMES, Appellant, v. Perry HAWN, dba Perry Hawn’s Garage, Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.

      A. Jack May, S. R. Cheek, Jr., Danville, for appellant.
    Henry V. Pennington, Danville, for ap-pellee.
   CULLEN, Commissioner.

Paul H. Grimes’ automobile, while in Perry Hawn’s garage for repairs, was substantially destroyed by fire. In Grimes’ action against Hawn for damages the jury found for Hawn. Judgment was entered accordingly and Grimes has appealed.

The testimony for Hawn was that his mechanic had gone underneath the car with an acetylene torch to loosen the muffler-tailpipe joint preparatory to removing the muffler when gasoline suddenly dripped from the chassis of the car onto his hand and the floor and immediately caught fire. Fire extinguishers were applied at once but were unsuccessful in putting out the fire. Prior to his undertaking to loosen the muffler joint the mechanic had spent about an hour beneath the car replacing the universal joint and removing the clamp on the muffler joint. During that time no gasoline had dripped from the car and the floor was clean and dry. The mechanic on the previous day had removed the carburetor and placed it on a work bench for- later overhauling. Gasoline could not leak from the point where the carburetor had been removed. The mechanic had checked and examined the gasoline tank and fuel line, except for a small section of the line which went behind the frame and was not visible, and had found no leaks. Upon an examination of the car after the fire the gasoline tank and fuel line were found to be intact. The use of an acetylene torch to loosen a muffler-tailpipe joint was an established, customary practice in automobile repairing.

In our opinion the evidence produced by Hawn was sufficient to create a jury issue as to whether the fire occurred from a non-negligent cause, under the rule stated in Threlkeld v. Breaux Ballard, Inc., 296 Ky. 344, 177 S.W.2d 157, 151 A.L.R. 708, and Welch v. L. R. Cooke Chevrolet Co., 314 Ky. 634, 236 S.W.2d 690.

A contention made by the appellant concerning certain standards of safety prescribed by city ordinance is not sustainable because any violation of the standards that could have been found under the evidence clearly was not a proximate cause of the fire. Cf. McKinley v. Danville Motors, Inc., Ky., 374 S.W.2d 366.

The judgment is affirmed.


author: MILLIKEN, Chief Justice.

text:
    Robert EASTHAM, alias James A. Henry, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.

      Robert Eastham, pro se.
    Robert F. Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MILLIKEN, Chief Justice.

The appellant, Robert Eastham, alias James A. Henry, is serving a five-year sentence for breaking and entering a storehouse with intent to steal. The judgment of conviction was entered on February 14, 1964, his motion for a new trial was overruled on February 28, 1964, and his notice of appeal was filed on the same day. A narrative record of the proceedings in the trial court (including a summary of the evidence) was supplied the appellant on April 17, 1964, and filed in this Court on April 21, 1964. On June 17, 1964, appellant filed a handwritten “Brief for Appellant” in this Court purportedly prepared by himself without assistance of counsel. He was represented by appointed counsel, however, at his trial, and alleges that he requested the appointment of counsel for his appeal but that none was appointed for him.

The gist of the narrative is that appellant and a companion, Rondal Moses, were found by the police at night hiding behind boxes in the store of Emory Gillum Wholesale Meats, Inc., in Ashland after store hours. The store had been entered by prying up a side window, boxes of canned meat were scattered on the floor bearing the imprint of Rondal Moses’ corrugated shoe soles, and a number of burglary tools were lying on the floor. Moses confessed and was sentenced to a year, while appellant pleaded not guilty and received a five-year sentence. The narrative record does not mention the appellant’s request for the appointment of counsel for his appeal.

The right of an indigent to the appointment of counsel for the preparation of his appeal comes under the shelter of the equal protection of the law clause of the Constitution. Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; McIntosh v. Commonwealth (1963), Ky., 368 S.W.2d 331. Here the appellant has raised the issue in his brief and we have no way of knowing from the narrative record before us whether the request for appointment of counsel on appeal ever was called to the attention of the trial court by the appellant. As we said in McIntosh, supra, “ ‘Equal protection’ gives to the indigent defendant a right to counsel and to a transcript of the record on appeal if he requests it. In the absence of such a request it does not, in our opinion, oblige the court either to initiate an inquiry or to extend an invitation to appeal.”

In the light of the situation which thus has arisen, we defer ruling on the merits of the present appeal which has been prepared by the appellant purportedly without the assistance of counsel, and direct the trial court to appoint counsel to prosecute and brief the appeal, and to notify this Court when this order is complied with.


text:
    Ronald NESSLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    Louis V. Mangrum, Mayfield, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., L. M. Tipton Reed, May-field, for appellee.
   MILLIKEN, Chief Justice.

The appellant, Ronald Nessler, was sentenced to three years in the penitentiary for deserting his pregnant wife in violation of KRS 435.240. The eighteen-year old wife was the only witness for the Commonwealth and the appellant was the sole witness for the defense. The couple were married in October, 1963, and she lived with her mother and stepfather, separate and apart from her husband, from January 2, 1964, on.

The gist of the testimony is that while her husband was at work she left the home of her husband’s parents where they were living because her husband had told her she would have to leave unless she helped with the washing and usual household chores. She testified that her husband knew at that time that she was pregnant, but the husband denied that he knew it until the present action was instituted. He said he made a couple of unsuccessful efforts to contact her, but admitted that he had not supported her after she left his home, nor contributed to defraying her medical expenses incurred in preparing for the arrival of the baby.

KRS 435.240 provides in part that “ * * * any married man who leaves, deserts or abandons his wife while she is pregnant by him, leaving her in destitute or indigent circumstances and without making proper provision for the board, clothing and proper care of the wife * * * shall be confined in the penitentiary for not less than one nor more than five years.”

The testimony of the eighteen-year old wife is skimpy indeed. She said she left her husband’s home “because he asked me t0‘ leave,” and went to live with her parents. This statement is not amplified in her direct examination, nor questioned on cross-examination. The appellant stated that he had told her she would have to leave unless she helped with the housework which she had refused to do, and she left while he was away at work.

Although the appellant must support his wife and child in the future or suffer the legal consequences for not doing it, nevertheless, it is the consensus of the Court that the evidence presented in this record is not sufficient to establish that he either deserted or abandoned his wife within the meaning of KRS 435.240.

The judgment is reversed with directions to grant appellant a new trial. In the event the evidence upon another trial is substantially the same as that appearing in the instant case, the court will direct a verdict acquitting the appellant.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William E. WILLIAMS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    Robert F. Matthews, Atty. Gen., Frankfort, Wm. A. Lamkin, Jr., Asst. Atty. Gen., Richard H. Peek, Paducah, Joseph B. Williams, Murray, for appellant.
    Adrian H. Terrell, Paducah, for appel-lees.
   DAVIS, Commissioner.

This condemnation action involves procurement by appellant of 9.52 acres from ap-pellees’ tract of 526 acres to provide right of way for a “local feeder road”; the “feeder road” will provide access from an area adjacent to Barkley Lake to U. S. Highway 62. The right of way is not for a limited access road.

The basic questions presented by appellant are whether the verdict is supported by sufficient evidence of probative value, whether the verdict is palpably excessive, and whether there was reversible error in admitting evidence of irrelevant damage factors.

The verdict and judgment award $11,920 to the appellees. The county court commissioners had fixed the total award at $1,-750. The disparity of evaluations as viewed by appellant and appellees is illustrated by the fact that one of appellant’s witnesses testified to a reduction in market value of $2,850, whereas another of appellant’s witnesses expressed the opinion that there was a net benefit to the appellees of $10,490. Contrarily, the witnesses for appellees expressed their views that the “after” market value is reduced by $15,000 to $18,425.

The original tract (acreage estimates for which vary somewhat in the evidence, but which is said by appellee to contain 526 acres) is described as a long narrow boundary — a little over “two miles long.” In general, the tract runs in an east-west direction for about two miles. Its narrow portion is in its north to south dimensions. Its southern boundary is the existing right of way of the Illinois ■ Central Railroad; its eastern line abuts an inlet of Barkley Lake. The western side of the tract narrows to a point, adjoining the railroad. A jutting plot on the north extends to the Eureka Ferry Road, which was the only public roadway serving the premises prior to the. construction being made incident to the present condemnation.

The new road extends in a generally north-south direction (angling somewhat to the southeast), leaving about 179 acres west of the new road and about 337 acres on the east of the new highway. The total acreage in the highway taking is 9.52 acres. The right of way extends an overall length of 4,534 feet and is built on cuts and fills. The width of the right of way varies from a minimum of ninety feet upward to 170 feet. The appellant condemnor has provided for three access entranceways from each side of the new road, thus affording six different access points. It is recalled that the new highway is a free access road, so that other entranceways upon it may be had under appropriate circumstances.

The property owner and his evaluation witnesses placed an overall value of $500 per acre on the entire tract before the taking. Thus, their “before” value was fixed at $263,000. The witnesses explained that land values in the area have enhanced greatly by- reason of' new Barkley Lake. Since the land taken consisted of about ten'acres, these witnesses generally placed $5,000 as the value of the taking; -Then they'testified-that the “after” value of the 179 acres severed on the west side of the road was reduced by sums ranging from $70 to $75 per acre.

It should be borne in mind that prior to the instant construction, the only public roadway serving the entire 526 acres was the Eureka Ferry Road. That roadway abuts the jutting peninsulalike tract on the northwest portion of the tract. Almost all. of that frontage is west of the new highway. The appellee, and his witnesses expressed the view that the highest and best use for the land is its potential development as lake-front residential sites and industrial sites. They based their reduction of “after” value of the 179 acres on its being “cut off” from the other tract and from the lake frontage. The witnesses described the new road as a veritable “barrier” between the two tracts because of cuts and fills. The opinion was expressed by appellee that a new road could have been a benefit to him, but that the present road damages him, since it does not traverse the farm in such way as to make the land most adaptable to lake site development.

The difficulty with this position, as we view it, lies in the fact that before the taking the 179 acres — and indeed many more acres just east of it — could hardly be characterized as lake frontage. Based on rough-scaling of a map in the record, the new roadway is about eighty chains from the lake front — about a mile. Of course, most of the 179-acre tract is even more distant from the lake.

It is obvious from the record that extensive road building would have been required (and yet will be) before any portion of the original tract could have had value as a subdivision, whether residential or industrial. The evidence reflects that a ridge runs through the tract in an east-west direction, and that the terrain slopes from the ridge, northwardly and' southwardly, to the respective north and south boundaries. The ap-pellee stated that he had farm roads, follow-' ing the contour of the ground, which adequately served their farm purposes, but it is not contended that these roads would suffice for substantial subdivision development.

Under the new construction, the 179-acre tract will have more than 4,500 feet of frontage and the larger tract will have a like amount of frontage. It is inconceivable that the acquisition of so much frontage could have no enhancing value on the larger tract, whatever may be said of its depressing value on the 179-acre tract. None of appellees’ witnesses made any expression of enhancement of value to the 337-acre tract.

Moreover, the reasons assigned by appellees’ witnesses for their estimates of the reduction in “after” value of the 179-acre tract do not reasonably, rationally or logically impel the conclusions expressed by the witnesses. Since it is apparent that no part of the 179-acre tract could truly qualify as lake frontage, it follows that little, if any, damage befell it as being “cut off” from the lake. The 179-acre tract has adequate access to the lake, but it cannot be made to “front” on the lake; neither could it have so “fronted” before the taking. It is observed that appellees’ witnesses stated that the 179-acre tract has potential for industrial development, but these witnesses declared it to be their view that the industrial potential is also damaged — because cut off from the lake. It seems obvious that this viewpoint is a non sequitur.

It is our conclusion, therefore, that the testimony of diminished “after” value to the 179-acre tract lacks that probative value required to support the verdict in this case. It may not be said that the evidence offered for appellees was devoid of probative value, but we think it is clear that the evidence lacks sufficient probative value to fully sustain the estimates of reduced value. This situation clearly falls within the rationale expressed in Com., Dept. of Highways v. Tyree, Ky., 365 S.W. 2d 472. As there noted, when it appears that the jury has accorded such evidence more weight and value than the maximum to which it is entitled, the appellate court should set aside the verdict, either as palpably excessive or because it is not sufficiently supported by the evidence. We hold that the instant verdict is palpably excessive and is not sufficiently supported by evidence of probative value.

This view of the case renders it unnecessary to treat the other questions presented.

The judgment is reversed for new trial consistent with this opinion.


author: CLAY, Commissioner.

text:
    William Marion PERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    William Marion Perry, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

This is a proceeding; under RCr. 11.42. A final order overruling appellant’s motion was entered on May 23, 1964. A notice of appeal was not filed until 12 days later. Under RCr. 12.54 an appeal must be taken within 10 days after the entry of the judgment or order appealed from. The appellant having failed to comply with this Rule, the appeal cannot be entertained.

We may observe in passing that appellant had a full hearing on his motion and his rights were carefully considered by the trial court.

The appeal is dismissed.


text:
    AMERICAN RADIATOR & STANDARD SANITARY CORP., Appellant, v. Story B. GIVENS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    Charles F. Wood, S. L. Greenebaum, Greenebaum, Barnett, Wood & Doll, Louisville, for appellant.
    Robert F. Matthews, Atty. Gen., Frankfort, Herbert L. Segal, John Frith Stewart, Louisville, for appellees.
   DAVIS, Commissioner.

The appellant employer seeks to reverse the circuit court’s judgment which affirmed the Workmen’s Compensation Board’s award to appellee. The Board found ap-pellee’s disability to be 40% permanent, partial disability, and fixed the award accordingly. The Board found that the appellant’s disability is attributable to silicosis resulting from exposure in his employment.

Appellant attacks the judgment on these grounds: (1) The claim was not timely filed and is barred by limitation; (2) there is a failure to show that injurious exposure occurred within statutory period of limitation; (3) appellee’s disability, if any, is not attributable to an occupational disease; (4) in any event, the Board’s award is for a greater percentage of disability than warranted by the evidence.

Appellee worked for appellant continuously from 1948 until 1961; he had been employed by appellant as early as 1925, although his term of employment had been interrupted for reasons not here pertinent. Appellee explained that he had two classifications in his employment — as a laborer and as a grinder. The grinding phase of the work consisted of using an emery wheel to grind the weld from tubs, small ware and fixtures.

On February 28, 1961, appellee was laid off due to a reduction in the working force in appellant’s plant. For approximately three months before the layoff, appellee had been engaged in his pursuits as a laborer; he said that he had worked as a grinder, however, as recently as October or November, 1960.

Appellee resumed work for appellant on May 12, 1961. On that date he began work at 3 :00 p. m., but at 8:45 p. m. he reported to the plant hospital, complaining of shortness of breath. On that occasion it was ascertained that his pulse rate and blood pressure were abnormally high, although these conditions have not been related to any sili-cotic condition by any medical evidence. Appellee has not worked since May 12, 1961.

Appellant points out that appellee applied for and received unemployment compensation during the interim between his being laid off in February and returning to work in May, 1961. Appellee represented himself then to be available for employment.

Since 1940 appellee’s chest had been regularly X-rayed by appellant’s staff physician. Eight X ray reports, beginning May 3, 1940, and including January 23, 1956, reflect ap-pellee’s chest as negative for silicosis. In 1957 all of the chest X rays of appellee were reviewed by Dr. Alfred Miller, at the request of appellant’s staff physician, Dr. Eugene H. Kremer, Jr. In a 1957 report to Dr. Kremer, Dr. Miller pointed out, from his review of the films, evidence of early fibrosis in both lungs and evidence of increased emphysema. Dr. Miller reported that, “This man appears to have a definite early fibrosis but one cannot at this stage say this represents a silicosis. It would probably be classified as an early first stage.” Dr. Miller suggested that this condition would likely increase in extent, and “may cause some disability.” It was the doctor’s recommendation that “it might be wise to remove him from dust exposure.”

After the examination of the films by Dr. Miller, appellant continued to have chest X rays for appellee. The report as to each of the X rays from 1959 through 1961 was “no change from Dr. Miller’s report.”

On February 24, 1961, shortly after being laid off, appellee consulted with his personal physician, Dr. Charles G. Bryant. Chest X rays were obtained by Dr. Bryant. The doctor advised appellee that the X ray showed evidence of pneumoconiosis and emphysema. On May 10, 1961, Dr. Bryant gave appellee a written recommendation “for light work” to begin May 12, 1961; it was as a result of this that appellee reported for work May 12.

It should be noted that on April 24, 1961, appellee filed the instant claim for compensation, asserting total disability. Dr. Bryant gave his medical opinion that appel-lee suffers 50% permanent, partial disability as the result of pneumoconiosis. Medical testimony for appellant is to the contrary, and reflects no occupationally caused disability. A Referee of the Board recommended dismissal of the claim, but the Board referred appellee to Dr. Oscar O. Miller for examination pursuant to KRS 342.315. Dr. Oscar Miller’s report, as well as his testimony before the Board, ascribes 25% permanent, partial disability to appel-lee caused by silicosis.

The conclusions announced in American Radiator & Standard Sanitary Corp. v. Gerth, Ky., 375 S.W.2d 817; Alva Coal Corp. v. Trosper, Ky., 375 S.W.2d 406; Brock v. International Harvester Co., Ky., 374 S.W.2d 507; Stephens Elkhorn Coal Co. v. Tibbs, Ky., 374 S.W.2d 504; and Mary Helen Coal Corp. v. Chitwood, Ky., 351 S.W.2d 167, dispose of appellant’s assertions that the instant claim was untimely, either as to notice of disability or filing of the claim. Likewise, the same authorities resolve adversely to appellant its contention that appellee was not injuriously exposed within the meaning of KRS 342.-316(4). Substantial evidence for appellee supports his claim that he was injuriously exposed to dust in his employment much more recently than two years before his disability was asserted.

Neither is there merit in appellant’s contention that whatever disability exists stems from nonoccupational emphysema. The simple answer to the contention is found in medical testimony flatly relating that the disability is attributable to an occupationally contracted condition.

Finally, appellant insists that in no event may the Board’s award be for a disability greater than 25%. This argument is premised on the ground that Dr. Oscar Miller placed the percentage at 25% and Dr. Bryant set it at 50%, but no witness expressly used 40%. This position is untenable. KRS 342.316(5) provides that the amount of compensation in occupational disease cases shall be the same as provided for accidental injury or death under the general provisions of the Act. KRS 342.-110 vests the Board with authority to determine the percentage of disability in instances not specifically covered by the provisions of KRS 342.105. The finding of the Board here is within the range of competent medical testimony. It may not be disturbed by the court. Ajax Coal Co. v. Stanfill, 314 Ky. 628, 236 S.W.2d 880. Neither is the Board inexorably bound to be fully persuaded by the specific testimony of any one witness. See Lee v. International Harvester Co., Ky., 373 S.W.2d 418.

The judgment is affirmed.