author: RENFRO, Justice.

text:
    J & M CONSTRUCTION COMPANY, Appellant, v. G. A. WHITE, d/b/a White Electric Company, Appellee.
    No. 16455.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 11, 1963.
    Reliearing Denied Nov. 8, 1963.

      Harris & Ball, and Chester G. Ball, Arlington, for appellant.
    Mack & Mack, and Theodore Mack, Fort Worth, for appellee.
   RENFRO, Justice.

The plaintiff G. A. White, d/b/a White Electric Company, recovered a judgment against defendant J & M Construction Company, a corporation, for $840 for materials and labor furnished in compliance with an electrical contract with defendant and an additional $300 attorney’s fees, making a total recovery of $1,140.

The defendant appealed.

The plaintiff alleged that on or about the 8th day of July, 1961, plaintiff entered into a contract with defendant for the wiring and furnishing of certain material on a 61 unit apartment building in Arlington, Texas, for the sum of $24,718.50; that the plans called for installation of 24 volt thermostats which called for the use of #18 low voltage wire and did not require the use of conduit pipe and outlet box; that on August 1st it was discovered that the job required high-voltage thermostats requiring 220 volts of electrical current, and required the use of heavier wire, conduit pipe and outlet boxes; that Marvin Sprayberry, defendant’s field engineer, agreed that the plans and specifications were defective and that he authorized plaintiff to install proper thermostats at an additional cost of $840; that all the work was completed in a satisfactory manner but defendant refused to pay him the $840.

The jury found that Sprayberry, superintendent for defendant, agreed with plaintiff that high-voltage thermostats should be substituted in lieu of low-voltage thermostats; that Sprayberry agreed that defendant would pay plaintiff an additional $5 per thermostat; that plaintiff installed 168 high-voltage thermostats. It was stipulated that $300 would be a reasonable attorney’s fee if attorney’s fees were recoverable.

Defendant’s first four points of error are based on contentions there was no evidence that Sprayberry was authorized to make the contract regarding the high-voltage thermostats in behalf of defendant.

Viewed in the light most favorable to the jury’s finding, and there is little conflict in the evidence, the testimony in summary shows: Plaintiff learned that defendant planned to construct a 61 unit apartment building. He went to the office of defendant where he met Sprayberry, who introduced himself as general superintendent of defendant Company. Plaintiff made known to Sprayberry his desire to bid on the subcontract electrical job. Later he called at defendant’s office and received a set of plans from Sprayberry. Upon turning in his bid he was informed by Sprayberry that he would have to refigure the job because the owner had decided to make the building a “Gold Medallion” apartment, requiring considerably more electrical work. Plaintiff asked Spray-berry whether the bid should be on the basis of low-voltage or high-voltage thermostats. Sprayberry told plaintiff to figure his bid on the basis of low-voltage thermostats. His bid was submitted on the low-voltage basis. Later it was discovered that the heating unit required use of high-voltage thermostats. Plaintiff went immediately to defendant’s office and told Sprayberry of defendant’s mistake and informed him he would need $5 extra per thermostat. Sprayberry told plaintiff to install the high-voltage thermostats saying, “If we've got to have high voltage, we’ll have high voltage. Go ahead and install them and I will see that you get paid.”

It is undisputed that high-voltage thermostats were necessary.

Sprayberry was the only person connected with defendant who ever talked with plaintiff. Sprayberry told plaintiff he was letting the contracts. Plaintiff dealt exclusively with Sprayberry. Spray-berry was general superintendent on the job and gave all orders for defendant, .and approved plaintiff’s draws (payments) as the work progressed. He paid plaintiff the draws.

None of the officers or employees of defendant other than Sprayberry testified at the trial. Sprayberry’s testimony largely corroborated plaintiff’s as to the error concerning the thermostats. He denied, however, that he had authority to bind defendant to pay for the high-voltage thermostats.

The evidence supports the answers to the issues submitted.

Defendant clothed Sprayberry with the indicia of authority which would lead a prudent person to believe that he had actual authority to bind the defendant for the payment of high-voltage thermostats. The evidence is sufficient to show that Sprayberry was the duly authorized agent for the defendant and acting within the scope of his actual and apparent authority in contracting with plaintiff to install the high-voltage thermostats. Pursuant to such authority he made the agreement with plaintiff. Under the record and circumstances of this case such agreement was binding on defendant.

Defendant argues that there was a fact question as to Sprayberry’s authority which “wasn’t requested or submitted to the jury”; hence the judgment cannot stand.

Neither party requested an issue as to Sprayberry’s authority, and defendant did not object to the failure of the court to submit such issue.

Under such circumstances the trial court decided the issue in accordance with the evidence and in support of its judgment because the determination thereof by the jury had been waived. Rule 279, Texas Rules Civil Procedure; Blackburn v. Sanders, Tex.Civ.App., 278 S.W.2d 924; Anderson Furniture Co. v. Roden, Tex.Civ.App., 255 S.W.2d 345; Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Civ.App., 172 S.W.2d 991; Chapman v. Ellis, Tex.Civ.App., 289 S.W. 189; Ferguson v. Lewis, Tex.Civ.App., 290 S.W. 858; Galveston-Houston Interurban Land Co. v. Dow, Tex.Civ.App., 193 S.W. 353; 2 Tex.Jur. 2d, p. 704, § 246. There was ample evidence to support the court’s presumed finding that Sprayberry had authority to bind defendant by his agreement with plaintiff.

Defendant also contends plaintiff is precluded from recovery by reason of terms of the original written contract.

In the written contract it is provided in paragraph 2 that no substitution should be used unless approved by the engineer that supervised the job. It is undisputed that the substitution of the high-voltage thermostats for the low-voltage thermostats was approved by Sprayberry. Paragraph 6 of the original contract, somewhat confusing in context, provided that the $24,-718.50 should include all costs unless an extra had been added and approved by the field engineer for defendant “as to where J & M Construction Co. will be reimbursed for an extra cost.”

Plaintiff did not incur extra cost because of his dealing with some third party, or through some error or overcharge on his own part, but incurred the extra cost because of the error of the defendant in first specifying low-voltage thermostats. It was an extra cost incurred by plaintiff on the promise of Sprayberry that it would be paid. If defendant was entitled to be reimbursed by someone for the extra, then it was defendant’s duty, not plaintiff’s, to see that it protected itself.

In our opinion Sprayberry had authority under paragraph 2 to bind defendant for the cost of the high-voltage thermostats.

Defendant, in a point of error, merely states: “The court erred in rendering judgment for plaintiff’s attorney’s, fees.” In its argument defendant contends that in order to recover attorney’s fees under Article 2226, Vernon’s Tex.Ann. Civ. St., the plaintiff must make a demand upon the defendant to pay the account thirty days before suit is filed.

The language of Article 2226 as it now exists is plain and seems clearly to authorize the recovery of attorney’s fees if a claim is not paid within thirty days of presentation, and this wholly without reference to whether or when suit is filed. “The language being plain and clear it ought to be given effect as written.” Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98; Olan Mills, Inc. v. Prince, Tex.Civ.App., 336 S.W.2d 186; Justice Life Ins. Co. v. Orgain, Tex.Civ.App., 339 S.W.2d 230.

All points of error are overruled.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jewel PAYNE et vir, Appellants, v. O. H. PRIDDY et ux., Appellees.
    No. 16457.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 18, 1963.
    Wayne Somerville, Wichita Falls, for appellants.
    J. Earle Kuntz, Wichita Falls, for appel-lees.
   RENFRO, Justice.

Plaintiffs Jewel Payne and husband brought suit in trespass to try title to Lot 10, Block 14, Fairview Addition to the City of Wichita Falls. O. H. Priddy and wife were named defendants.

Plaintiffs were record owners of Lot 10 and defendants were record owners of Lot 11.

Actually the lawsuit involved a tapering strip, two feet at its widest point, on the side of Lot 10 adjacent to Lot 11.

Defendants pleaded not guilty, and claimed said strip by reason of the 10 year statute of limitation.

Judgment was entered for defendants.

In his findings of fact the court found that Jack L. Cox bought a house and lot described as Lot 11 on November 14, 1949; Lot 11 was surveyed on July 28, 1949, and again in May, 1950; Cox and wife moved onto Lot 11 immediately after purchasing same and in May, 1950 fenced and enclosed Lot 11 with a permanent type chain link fence which was never changed and was still in place and use as of the time of trial; despite his precaution the fence erected by Cox encroached on Lot 10 by about 18 to 24 inches; Cox openly, adversely and notoriously used all the land enclosed by his fence and claimed all the land enclosed thereby as his own property; on October 12, 1956, Cox conveyed to defendants Priddy and wife said Lot 11, together with all improvements thereon situated; the defendants took immediate possession and continued to live thereon, exercising all rights of ownership up to time of trial, and continued the open, adverse and notorious use of all the land enclosed by the fence, claiming the same as their own; in 1961 and 1962 plaintiffs had Lot 10 surveyed and the error in the 1949 and 1950 surveys was discovered.

Plaintiffs filed the instant suit on December 27, 1961, a period of more than ten years after the erection of the fence.

Under the heading, “Points upon which appeal is based”, plaintiffs merely set out three abstract principles of law. None of the “points” set out any error committed by the trial court.

We have studied their brief, however, and find that the gist of their argument is that when Cox testified he never intended to claim Lot 10, and would not have asserted claim to any land that did not rightfully belong to him, he negatived any intention to hold adversely to the then owner of Lot 10.

Cox further testified, however, he had the property surveyed prior to the erection of the fence, and actually erected the fence within his own boundary line as reflected by the survey. The fence completely enclosed his back yard. He fenced the property for complete possession and took care of it. He had fruit trees, flowers, garden, swing, a sidewalk and steel wire clothesline thereon. The clothesline ran parallel to the fence. He erected the fence to establish his property rights and for control of all the area encompassed therein. The purpose of the fence was to assure ownership of all the land within the fenced area. He relied on a licensed surveyor to establish the proper line. He held it against the world as his property. Once he fenced it he claimed everything within the place. He had no knowledge of any error in the prior survey. He lived on the place until he sold it to defendants. There is no evidence that anyone ever questioned his ownership of the fence enclosed area.

The evidence is undisputed that defendants moved on Lot 11, took possession immediately upon purchasing it from Cox, and claimed all the land within the fenced area. No one questioned their right thereto until shortly before suit was filed by plaintiffs.

The evidence supports the conclusion of the trial court that defendants through themselves and Cox had open, adverse and notorious possession of all the land enclosed by the fence for more than ten years prior to the filing of the lawsuit and that the ten year statute of limitation had run on that part of Lot 10 enclosed by the fence.

In a similar situation the Supreme Court in Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, stated: “It is true that Pearson, in his deposition taken before the trial, stated that he was not trying to take this land away from those who owned it; but at the trial itself Pearson testified that since 1925 he had never acknowledged that any other person than himself owned this land, and that since 1925 he had always claimed it for himself. The record in this condition presents a fact question. Stewart v. Luhning, 134 Tex. 23, 131 S.W.2d 824; O’Meara v. Williams, Tex.Civ.App., 137 S.W.2d 66.”

In the instant case the testimony of Cox relied upon by plaintiffs, viewed in the light of all his testimony, at most, merely raised a fact issue as to whether he claimed the disputed strip adversely from the time of the erection of the fence. Liles v. Sawyer, Tex.Civ.App., 257 S.W.2d 512; Pearson v. Doherty, supra; Pasha v. Schell, Tex.Civ.App., 229 S.W.2d 818, error ref.; Gleckler v. Denton, Tex.Civ.App., 149 S.W.2d 213, dismissed, correct judgment; 2 Tex. Jur.2d, pp. 188-191, §§ 90-91.

The trial court, on ample evidence of probative value, found that Cox did claim adversely from the time he took possession of the land in controversy.

Judgment affirmed.


author: McDONALD, Chief Justice.

text:
    George W. BICHSEL et al., Appellants, v. Lewis E. STRICKLAND, Appellee.
    No. 4173.
    Court of Civil Appeals of Texas. Waco.
    Oct. 17, 1963.
    Crawford B. Reeder, City Atty., Jack Davis, Asst. City Atty., San Antonio, for appellants.
    Franklin Spears, Leo Dougherty, San Antonio, for appellee.
   McDONALD, Chief Justice.

The Chief of Police of the City of San Antonio indefinitely suspended appel-lee Strickland from the San Antonio Police Department for violation of certain Civil Service and Police Department rules. Strickland appealed to the Firemen’s and Policemen’s Civil Service Commission which, after hearing, found him guilty of a portion of the violations charged, and under the provisions of Article 1269m Vernon’s Ann.Tex.St., suspended him for 6 months. Strickland appealed to the District Court and obtained a judgment reinstating him to his rank of Patrolman of the San Antonio Police Department, together with full pay, for and during the 6 months period the Civil Service Commission had suspended him.

The Chief, the Commission, and the City appeal. The main issue before us is whether the findings of the Commission are reasonably supported by substantial evidence.

Under and by virtue of Article 1269m V.A.T.S., a police officer of the City of San Antonio is subject to suspension and removal subject to the trial procedures set forth in the Personnel Rules.

Some of the grounds for removal and suspension are:

“Neglect of duty.
“One whose conduct is prejudicial to good order.
“Other misconduct.
“Violation of any of the rules and regulations of the Department * * *

Rule 16 of the Police Department provides :

“Officers shall report promptly all violations coming to their attention, as well as all information they may receive about any violation or suspected violation.”

Rule 17 provides:

“Officers having information regarding any felony or any person wanted for a felony, and immediate action is not required, shall give all details to his superior officer and submit a written report as specified in Reporting Regulations * * *

As violative of the foregoing, Patrolman Strickland was charged with receiving ⅛ formation from a prisoner in the City Jail on January 30, 1962 that Police Car 74 had $300. in it, which had been concealed there by one John F. Burrell, who was arrested and placed in City Jail January 29, 1962; that on January 30, 1962 Strickland found out Burrell was booked for “Loitering (to be investigated Burglary)”. It was charged that after receiving this information Strickland did not report same to the burglary detective assigned to-investigate Burrell, or to his own superior officer.

The evidence is undisputed that Strickland received the information that the money was in the police car; that it was concealed there by prisoner Burrell; that Bur-rell was being held for investigation for burglary; that Strickland made no report to anyone; but on his own, commenced to search police car 74, and then police car 73, for the money. Strickland told a fellow officer that there might be a reward for finding the money. Strickland did not find the money. Other officers not connected with Strickland’s search found the money in car 73 prior to the time Strickland searched such car. Strickland testified that he was simply checking out a “tip” or a “rumor”, and that, if he had found the money he would have reported the matter, and turned in the money.

The test, in applying the substantial evidence rule is whether the evidence is such that “reasonable minds could not have reached the conclusion that - the administrative tribunal (in this case the Firemen’s and Policemen’s Civil Service Commission) must have reached in order to justify its action. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; Texas Liquor Control Board v. Armstrong, C.C.A., W/E Ref., 300 S.W.2d 146; Texas Liquor Control Board v. Scott, C.C.A. (n. r. e.) 347 S.W.2d 841.

We cannot say that under the evidence a reasonable mind could not have reached the conclusion that the Firemen’s and Policemen’s Civil Service Commission reached.

Appellee further contends that the substantial evidence rule is not here applicable; that the determination made by the Firemen’s and Policemen’s Civil Service Commission was a quasi judicial function, and as such, reviewable on appeal, by a trial de novo under the preponderance of the evidence rule (citing Key Western Life Ins. Co. v. State Board of Insurance, Sup. Ct., 350 S.W.2d 839).

We reject such contention and hold that the substantial evidence rule is applicable to the instant proceeding, and to proceedings under Article 1269m V.A.T.S. Hynes v. City of Houston, C.C.A. (n. r. e.) 263 S.W.2d 839; Reagan v. Bichsel, C.C.A. (n. r. e.), 284 S.W.2d 935; Firemen’s & Policemen’s Civil Service Comm. of Houston v. Tinsley, C.C.A. (n. r. e.), 304 S.W.2d 435; Firemen’s & Policemen’s Civil Service Comm. of City of San Antonio v. Shaw, C.C.A. (n. r. e.), 306 S.W.2d 160; Stowe v. City of Corpus Christi, C.C.A. (n. r. e.), 358 S.W.2d 409.

The judgment of the District Court is reversed and here rendered that the order of the Firemen’s and Policemen’s Civil Service Commission dated April 25, 1962 he reinstated and affirmed.


author: WILLIAMS, Justice.

text:
    JOHN L. BRAMLET & COMPANY, Appellant, v. Robert Lee HUNT, Appellee.
    No. 16299.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 11, 1963.
    Rehearing Denied Nov. 1, 1963.

      McCulloch, Ray, Trotti & Hemphill, and Ronald D. Krist, Dallas, for appellant.
    John H. Whittington, Jr., and John W. Collins, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

John L. Bramlet & Company brought this suit seeking to enjoin Robert Lee Hunt from violating a restrictive covenant contained in a pre-employment application executed by Hunt. The trial court denied plaintiff’s request for interlocutory temporary injunction, and this appeal followed. We find that the trial court erred in refusing to grant the temporary injunction and therefore reverse the judgment.

The facts are undisputed. Appellee applied to appellant for employment as a bookkeeper and was required to sign a printed application form which contained, inter alia, the following statement: “I agree, in the event I am accepted for this position and later shall terminate or shall be relieved of this position for any reason, that after termination I will not work for a firm or individual doing service station bookkeeping; and I will not offer, or do service station bookkeeping as a service for anyone, nor will I work in an advisory capacity for a firm or individual doing service station bookkeeping in the Dallas County, Texas or Tarrant County, Texas area for a period of five years from the date of termination.” Appellee was accepted for this employment and thereafter worked for appellant as office manager and bookkeeper for a year and seven months. After he ceased his employent for appellant, appel-lee went to work for himself in the bookkeeping business. During the trial appellee stipulated as follows: “We will stipulate that defendant, Mr. Hunt, is engaging in, at this time, and since the termination of his employment with the plaintiff, Bram-let, has been engaging in the business of doing bookkeeping work for retail service stations in Dallas, Texas, and Tarrant County, Texas. We will stipulate that in such instances, they are prior customers of Bramlet & Company, and that there are other accounts which he is soliciting and serving.” In addition to this stipulation, the testimony is undisputed that appellee, since his termination with appellant, has openly solicited and acquired customers of appellant.

Appellant’s sole point on appeal is that since the restrictive covenant was valid, and clearly breached, it was entitled to the court’s protective injunction pending trial on the merits. By countervailing points, appellee contends that (1) there was no valid contract between the parties; (2) that if there was a contract the same was in violation of the Statute of Frauds; and (3) that if such contract was valid appellant did not meet the burden of proof to show the necessity for the issuance of a temporary injunction.

There was a time in our jurisprudence when covenants not to compete were held to be unenforceable because in ref-straint of trade and contrary to public policy. However, under the customs and usages of modern business practice it is now well established that contracts ancillary to employment involving trades or professions are enforceable, though amounting to limited restraint of trade, where they are reasonably limited as to time and space. Some cases even go so far as to uphold such restrictive covenants, even in the absence of a time limitation, where the agreement is reasonably limited as to area. 13 Tex.Jur. 2d Section 189, Pages 398-400, Krueger, Hutchinson & Overton Clinic v. Lewis (Tex.Civ.App.), 266 S.W.2d 885, affirmed 153 Tex. 363, 269 S.W.2d 798; Randolph v. Graham, Tex.Civ.App., 254 S.W. 402, 58 A.L.R. 168. There is no contention made in this case by appellee that the time or space limitation is unreasonable.

We cannot agree with appellee that there was no contract between the parties. It is without dispute that appellant would not have employed appellee had he not executed the printed application form which incorporated the restrictive covenant. Such was a condition precedent to employment. Appellee accepted such condition and signed the same. Thereafter appellant accepted appellee as an employee and provided him with employment for more than one year. These facts clearly constitute a contract between the parties supported by adequate consideration. The same contention was advanced and overruled in McAnally v. Person (Tex.Civ.App.), 57 S.W.2d 945, writ refused; and Bettinger v. North Ft. Worth Ice Co. (Tex.Civ.App.), 278 S.W. 466.

Neither can we agree with appellee that the contract violates Article 3995, Sea 5, Vernon’s Ann.Civ.St. Such statute requires contracts whose time of required performance exceeds one year to be in writing and to be signed by the party to be charged. The answer to this contention is found in the written instrument itself, executed by appellee, the party to be charged, wherein he agrees to refrain from engaging in competitive business with appellant for a definite time and place.

The record abundantly demonstrates that appellant’s business is being jeopardized each day by the acts and conduct on the part of appellee in openly and flagrantly violating the terms of his agreement not to compete.

So we have a valid contract and the admitted violation thereof. It thus became the duty of the trial court to properly apply the law to the undisputed facts.

It is well settled that in appeals from interlocutory orders in injunction cases the narrow question is whether the trial court abused its discretion in entering the order appealed from. Therefore, the order of a trial court in granting or in refusing to grant a temporary injunction will be reversed only when a clear abuse of discretion is shown. 31 Tex.Jur. Section 224, Pages 345-347; Texas Foundries, Inc. v. International M. & F. W. Union, 151 Tex. 239, 248 S.W.2d 460; Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549. However, it is equally well settled that if the facts are undisputed and only questions of law are presented, it does constitute an abuse of the trial court’s discretion to fail properly to apply the law to the facts. 31 Tex.Jur.2d Sec. 224, Page 349, Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; Dallas General Drivers, etc., v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873; Rudd v. Wallace (Tex.Civ.App.), 232 S.W.2d 121; Harrison v. Tucker (Tex.Civ.App.), 342 S.W.2d 383.

Accordingly, applying these well established rules of law to the record in this case, we are of the opinion that the law is clear and the facts are undisputed, so that the trial court fell into error in not applying the law to the undisputed facts. Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517; Houston Credit Sales Co. v. English (Tex.Civ.App.), 139 S.W.2d 163.

The order of the trial court denying the temporary injunction is reversed and the application remanded to the trial court with instructions to grant a temporary injunction against appellee, restraining him from further violating the terms of his contract with appellant until a trial of the cause can be had, or until otherwise ordered by the court.

Reversed and remanded, with instructions.


author: COLEMAN, Justice.

text:
    Billy RYAN, Appellant, v. Herbert BOOKMAN et al., Appellees.
    No. 14190.
    Court of Civil Appeals of Texas. Houston.
    Oct. 10, 1963.
    Rehearing Denied Nov. 7,1963.
    Bernard A. Golding, Houston, for appellant.
    Richard O. Werlein, Seabrook, for appel-lees.
   COLEMAN, Justice.

This is an appeal from a judgment for plaintiff entered in a rear-end collision case.

Appellant relies on a single point of error : that there was no evidence, or insufficient evidence, to establish the damages awarded.

In argument under this point appellant complains that there is no basis in the record for the award to Ray Stevens as guardian ad litem. The judgment recites that Ray Stevens was duly “appointed and later dropped as Guardian Ad Litem and has heretofore by order of this Court dated 18 May 1962 been granted the sum of Seventy-Five Dollars ($75.00) for his services, same to be taxed as costs of Court; * * * ” This order does not appear in the transcript, nor is there a bill of exception presenting the facts surrounding the order. In support of the trial court’s judgment, it will be presumed that the order was entered properly after all the requirements of the law were satisfied.

Appellant’s contention, that there was no evidence, or insufficient evidence, to establish the damage to appellee’s car suffered as a result of the collision, is without merit. Becker v. Schneider, Tex.Civ.App., 335 S.W.2d 850; Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127.

Nor can the contention be sustained that the award to Consolidated Lloyds of Dallas, Texas, is not supported by evidence. While no evidence was introduced to show that Consolidated Lloyds was subrogated to any recovery on the part of the plaintiff, and plaintiff’s pleading is somewhat irregular, we think the pleading sufficient as an acknowledgment of a subrogation agreement and a prayer for proper division of any judgment re- • covered by plaintiff. Since the trial court was authorized to enter a judgment in favor of plaintiff in the sum of $296.36, the judgment entered dividing the award between plaintiff and Consolidated Lloyds was proper. In any event, appellant cannot complain of the court’s action since he has not been injured thereby. Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555; Barrington v. Cokinos, Tex.Civ.App., 339 S.W.2d 330, certified question answered 161 Tex. 136, 338 S.W.2d 133.

The judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    C. L. COLLIER and W. F. Armstrong, Appellants, v. C. W. ANDERSON et al., Appellees.
    No. 4162.
    Court of Civil Appeals of Texas. Waco.
    Oct 17, 1963.
    Dawson & Dawson, Joe D. Meroney, Cor-sicana, for appellants.
    King & Smith, Houston, for appellees.
   TIREY, Justice.

This is an appeal from an interlocutory order of the District Court overruling the respective pleas of privilege of appellants Collier and Armstrong to be sued in Navarro County (their residence). Evidence was tendered to the effect that on the 8th day of November 1962, about 9:45 P.M., Manuel Lee Anderson was operating a Comet automobile driving south on highway '#75 about 2.9 miles below Centerville in Leon County, and while he was operating his car in the traffic lane provided for traffic moving in a southerly direction the automobile in which he was riding was struck by the left dual wheels of the truck-trailer driven by defendant Armstrong, who, at that time, was in the employ of defendant Collier in the course of his employment as such employee, and as a result of Armstrong’s operation of the truck in attempting to pass another motor vehicle moving in the traffic lane provided for motor vehicles moving in a northerly direction, pulled his truck into the traffic lane provided for traffic moving in a southerly direction, and as a result struck the Comet automobile, causing the accident that resulted in the death of Anderson. Plaintiffs filed their original petition against Collier and Armstrong on February 6, 1963, and thereafter the Court on the 12th day of March 1963, rendered judgment by default against Collier for the sum of $108,-000.00, and further decreed that Armstrong be dismissed with his costs. The Court, on the 23rd day of March 1963, overruled motion filed by Collier on the 20th day of March 1963, to set aside the judgment, and in the order we find this recital:

“and the court having considered the circumstances and being fully informed in the premises was of the opinion that said motion should be denied, but default judgment should be set aside on motion of the court,”

and decreed accordingly. And the order further provided that the alleged action asserted against Armstrong be reinstated. Thereafter defendant Collier and defendant Armstrong filed their separate pleas of privilege to be sued in Navarro County. These pleas were seasonably controverted, and the cause was tried by the court without - the aid of a jury, and each of the pleas of privilege was overruled and appeal was perfected to this Court. There was no request for findings of fact and conclusions of law, and none filed.

Points 1 to 4 inclusive assail the judgment substantially on the grounds that there was no evidence and insufficient evidence before the Court to support the findings of negligence and of proximate cause.

We have carefully considered all the evidence tendered and we are of the view that it is of sufficient probative force to sustain the Court’s implied findings of negligence against Armstrong, and that such negligence was the proximate cause of the accident and resulting injuries to the plaintiffs. Owing to the fact that the cause must be tried on its merits we refrain from making any further comment on the testimony. We think the Court’s action in overruling the plea of privilege is sustained by the doctrine announced by our Supreme Court in Banks v. Collins, 152 Tex. 265, 257 S.W. 2d 97 (points 3, 4), and cases there cited. Under the views here expressed point 5 becomes immaterial and passes out of the case. (Point 5 is to the effect that the Court erred in holding that Collier waived his right to be sued in the county of his residence by filing and securing action on his motion to set aside the default judgment). However, if we could reach it, it would have to be sustained under the doctrine announced in. Wolf v. Sahm, 55 Tex.Civ.App. 564, 120 S.W. 1114, point p. 1117 (1909); same case,, 55 Tex.Civ.App. 564, 121 S.W. 561, (w. ref.,). See Spinnler v. Armstrong, Tex.. Civ.App., 63 S.W.2d 1071 (n. w. h.), pt. p. 1075; Turner v. Ephraim, Tex.Civ.App., 28 S.W.2d 608 (n. w. h.); Yell v. Prock, Tex.Civ.App., 238 S.W.2d 238 (w. dis.,).

The judgment of the trial court is affirmed.


text:
    J. S. GROVES, Appellant, v. Erich N. ROSENTHAL, Appellee.
    No. 14199.
    Court of Civil Appeals of Texas. Houston.
    Oct. 17, 1963.
    Rehearing Denied Nov. 7,1963.

      Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellant.
    Ellis F. Morris, Houston, for appellee.
   COLEMAN, Justice.

This is a suit for debt. The judgment of the trial court must be reversed because of the failure of the trial court to file findings ■of fact and conclusions of law in response to a timely request..

Where findings of fact and conclusions of law have been filed by the trial court, and additional findings of fact are requested, the trial court must make findings ■on the points requested, if such points relate to elements of the ultimate and controlling issues in the case. Rule 298, Texas Rules of Civil Procedure; Grant v. Taylor, Tex.Civ.App., 339 S.W.2d 554; Tijerina v. Botello, Tex.Civ.App., 207 S.W.2d 136; Jinks v. Jinks, Tex.Civ.App., 205 S.W.2d 816.

While the defendant did not plead payment or illegality, which are affirmative defenses, evidence was admitted without objection on both of these issues, and the evidence was conflicting in many respects. The issues were tried by consent under Rule 67, Texas Rules of Civil Procedure; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Thomas v. Linder, Tex.Civ.App., 231 S.W.2d 891, writ ref.

The failure of the trial court to make findings of fact with respect to these defensive issues probably prevented appellant from making a proper presentation of the case in this Court, and, therefore, constitutes reversible error. Galveston, H. & S. A. Ry. Co. v. Stewart & Threadgill, Tex.Com.App., 257 S.W. 526; Richie v. State of Texas, Tex.Civ.App., 275 S.W.2d 723.

The judgment of the trial court is reversed and the case is remanded for a new trial.


author: BELL, Chief Justice.

text:
    STATE HIGHWAY DEPARTMENT of Texas, Appellant, v. John H. KLOPPENBERG et ux., Appellees.
    No. 14200.
    Court of Civil Appeals of Texas. Houston.
    Oct. 24, 1963.
    Rehearing Denied Nov. 7,1963.

      Waggoner Carr, Atty. Gen., Fred D. Ward, Asst. Atty. Gen., Austin, for appellant.
    Armond G. Schwartz, Hallettsville, for appellee.
   BELL, Chief Justice.

This is a workmen’s compensation case. Appellee, John H. Kloppenberg, was an employee of the appellant on August 14, 1959, and on such date, while acting in the course of his employment, was injured when he was struck by lightning. On trial to the court without a jury, it was found that appellee at the time of his injury was engaged in performance of duties that subjected him to a greater hazard from lightning than ordinarily applied to the general public. The court also found that appellee was totally and permanently disabled. Judgment was accordingly rendered for appellee'.

Appellant first attacks the trial court’s finding that the employee was at the time of his injury subject to a greater hazard from lightning than the general public on the ground there is no evidence to support it. It next attacks such finding as being so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. Appellant also attacks the finding of total and permanent disability on both of the above theories.

The evidence shows that appellee was employed by appellant to do work on the State highways of Texas in Lavaca County. On the day in question appellee, with another employee, was working near the steel and concrete bridge that spanned the Navidad River on State Highway 77. At the time lightning struck appellee he was engaged in drilling a hole in a post on the approach to the bridge so a reflector button could be placed in it. He had hit the steel brace and bit in order to drive it into the post sufficiently to commence drilling and had commenced drilling. The post was a newly set, freshly creosoted wooden post. It was about 1:45 p. m. on a hot August afternoon. The post was on a promontory that arose substantially above the surrounding terrain. Appellee’s clothes, including his shoes, were wet from his having perspired profusely. His hands were wet with perspiration. The steel brace and bit he was working with was about 18 inches or two feet in length. It does not appear how far in footage the post was from the concrete and steel bridge, but it does appear appellee was working on the eighth post from the north end of the bridge.

A rain storm was observed by appellee and his co-worker and it was moving toward them. The co-worker, who was painting, went to the truck to put up the paint and brush to avoid water getting in the paint. It does not appear just how far the truck was from appellee hut it was a considerable distance away. The rain storm had not yet reached where appellee was working. As the co-worker was looking for the gasoline to put his brush in, he heard a loud clap of thunder. He looked and saw appellee lying on the ground. He went to him and found appellee was unconscious. He observed the hole was partially drilled but had not been completed. He applied artificial respiration briefly and then put appellee in the truck and took him to the hospital in Hallettsville. Mr. Rother, the co-worker, testified the right shoe of appellee was “bursted” and his clothes were in shreds.

Appellee introduced evidence from the manager of the Hallettsville electric light plant and a representative of the telephone company to testify something about the nature and behavior of lightning and about materials that especially attract lightning or electricity. The substance of their testimony is that while wood is a poor conductor of electricity, it becomes a good conductor when wet. They also stated if the brace and bit had become magnetized it would especially attract lightning. Also they testified a jar or the striking of the brace and bit would cause it to be magnetized. We judicially know that steel particularly attracts lightning. Water, of course, is a good conductor of electricity. Their testimony also showed the electricity discharged into the atmosphere by the lightning travels in a straight path and seeks a ground. It also establishes that lightning most frequently strikes points higher than the surrounding terrain because there are objects projecting from out of the soil that serve as a ground to carry the electricity into the earth.

We are of the view that there is evidence, and it is sufficient to support the trial court’s finding that appellee’s work at the time of the occurrence subjected him to a greater hazard from lightning than the ordinary public. The court could well conclude that appellee furnished a particularly good ground for the electricity which especially attracted it because he was working on a promontory close to a concrete and steel bridge with a steel brace and bit, boring a hole in a freshly creosoted, and therefore, wet, post, when his body, including his hands with which he was holding the brace and bit, and his clothes including his shoes, were wet with perspiration.

We find the facts of this case different in no material respects from the facts in the case of United States Fidelity and Guaranty Company v. Rochester, 281 S.W. 306 (C.C.A.), expressly approved by the Supreme Court of Texas in 115 Tex. 404, 283 S.W. 135, and in the case of Traders and General Insurance Company v. Pool, 105 S.W.2d 492 (C.C.A.), writ dism. These authorities are therefore controlling. See also 16 Texas Law Review 131.

Dr. Renger, treated appellee from the time of his injury until about six months before trial in November, 1962. He testified to permanent injury to the central nervous system and to the heart muscle. He testified appellee could not do heavy manual labor and he would say appellee had 50% disability.

Appellee was in the hospital two weeks. He was off work about three months. He went back to work for appellant doing substantially the same work. There L testimony from his co-worker that he could not do his work as well. He testified he quit his job because he just couldn’t do the work. Heavy work put too much of a strain on his heart. While he was working, after his injury, at his same job, he received a wage increase of 5 cents per hour and since he worked regularly for about a year, his earnings were more for that year than preceding the injury.

Appellant’s attack on the court’s finding of total permanent disability is based largely on the doctor’s testimony of only 50% disability and the fact that appellee made more money after his injury than before. These facts are but evidentiary on the issue of incapacity. They are not controlling. Under all the evidence we are of the view that the trial court correctly concluded appellee’s disability was such as to prevent him from obtaining and retaining employment. American General Ins. Co. v. Florez, 327 S.W.2d 643 (C.C.A.), no writ hist.; General Accident Fire and Life Assur. Corp. v. Murphy, 339 S.W.2d 392, (C.C.A.), ref., n. r. e.; Superior Ins. Co. v. Burnes, 278 S.W.2d 934 (C.C.A.), ref., n. r. e.

Appellant has a point of error complaining of the action of the trial court in overruling an exception to appellee’s pleading. It is not briefed and is, therefore, waived.

The judgment of the trial court is affirmed.


text:
    W. H. POWELL, Appellant, v. CITY OF SAN ANTONIO, Appellee.
    No. 4164.
    Court of Civil Appeals of Texas. Waco.
    Oct. 17, 1963.
    Rehearing Denied Nov. 7,1963.
    Oliver & Oliver, San Antonio, for appellant.
    Crawford B. Reeder, City Atty., Matthews, Nowlin, Macfarland & Barrett, San Antonio, for appellee.
   McDONALD, Chief Justice.

This is a suit brought by plaintiff Powell as a class suit on behalf of all hourly paid employees of the San Antonio Transit System, for an hourly pay raise which plaintiff contends was granted for the month of June, 1961. Defendant City of San Antonio owns the Transit System which it administers through the Transit Board of Trustees. The Board of Trustees operates the System. Between early April, 1961 and May 17, 1961, conferences were held between representatives of the management, and the employees’ committee representing the hourly paid employees of the System, for the purpose of discussing grievances, wages, and work conditions.

As a result of these conferences, management representatives and employees’ representatives, worked out a joint recommendation to the Transit Board of Trustees,, pertinent portions of which follow:

“May 17, 1961
“To the Transit Board of Trustees of San Antonio
“Gentlemen:
“It is recommended that the attached ‘Working Condition for Employees of the San Antonio Transit System he adopted for the period of May 16, 1961 to July 31, 1963, except that the following changes be made:
“To provide an across the hoard wage increase to employees covered by these Working Conditions of 10⅜⅝ per hour from June 1, 1961, to July 31, 1963 inclusive.
“It is understood that the change in wage is contingent upon obtaining a satisfactory fare increase within a reasonable time and that such request for a fare increase will be submitted immediately to the City Council.”

(Such letter was signed by Mr. Castle, Assistant Manager of the System, and by Mr. Parker, the employees’ representative) .

On May 22, 1961 a request for a fare increase was made to the City Council, and on June 28, 1961 the City Council passed and adopted such fare increase.

On July 5, 1961, the Transit Board of Trustees adopted the wages, hours and working conditions contained in the letter of May 17, 1961, but made the wage increase effective July 1, 1961 instead of June 1, 1961.

Plaintiffs contend that they have a contract for the wage increase to take effect on June 1, 1961. Defendant contends that the foregoing undisputed facts are not a contract; that the letter of May 17, 1961 was a recommendation only, which the Transit Board of Trustees had a right to accept or reject in whole or in part.

The Trial Court, without a jury, entered judgment that plaintiffs take nothing. Plaintiffs appeal, contending that they had a contract for the wage increase to be effective June 1, 1961, if the City Council of San Antonio granted a fare increase within a reasonable time; that the fare increase was granted on 28 June, 1961, and that the wage increase should be effective as of June 1, 1961.

We reject plaintiff’s contentions. The undisputed factual situation reflects that plaintiff employees’ representative and the Assistant Manager of the Transit System made no contract; and recommended only to the Transit Board of Trustees. The letter of May 17, 1961 states on its face that it is a recommendation only.

The judgment of the Trial Court is affirmed.


author: WILSON, Justice.

text:
    SUNGLO SERVICE STATIONS, INC., Appellant, v. Maria Luisa G. CANALES, Appellee. SUNGLO SERVICE STATIONS, INC., Appellant, v. Roberto Villalobos FLORES et ux., Appellees.
    No. 4169.
    Court of Civil Appeals of Texas. Waco.
    Oct. 17, 1963.
    Rehearing Denied Nov. 7,1963.

      Groce & Hebdon, Richard Tinsman, San Antonio, for appellant.
    Philip Kazen, Laredo, Lieck & Lieck, San Antonio, for appellees.
   WILSON, Justice.

Appellant’s pleas of privilege in two automobile personal injury actions were overruled after a non-jury hearing. It says there is insufficient evidence, or none, to establish negligence on its part, or proximate cause. There are no findings of fact.

Appellees alleged, and there is evidence to show that plaintiffs, Mr. and Mrs. Flores, brought their automobile into appellant’s filling station to have the car serviced for gasoline, oil and transmission fluid. Flores was driving. He cut off the engine while gasoline was placed in the car, and thereafter started the engine, placing the automatic gear shift lever in “drive” position on the instruction of appellant’s attendant, while the transmission fluid was being checked. Flores remained in the driver’s seat and braked the car with the foot brake during this procedure. He did not set the parking, or hand brake. When the attendant reported the transmission fluid was low, Flores protested that he had changed it only recently. The attendant replied, “Come see for yourself”, whereupon Flores got out of the car, leaving the engine idling and the car stationary with the transmission in “drive”, without setting the brake. In order that Flores might examine the fluid level, the attendant told Mrs. Flores to “step on the accelerator.” Without moving to the driver’s seat, she did so; and the car lunged forward, colliding with the vehicle of another plaintiff.

Mrs. Flores “knew nothing about driving a car”; she knew the car was equipped with automatic transmission, knew where the accelerator was, but said she didn’t know where the brake was, and did not know the “car was in gear.” Mrs. Flores did not inform the attendant that she knew nothing about driving the car before she stepped on the accelerator, and the attendant did not ask her.

Flores testified it was necessary for the “car to be in gear” in order to observe transmission fluid level or “see if the oil registers”. He testified he had been a patron of appellant’s station before, and that when he had the car transmission fluid checked on previous occasions, he had “put on” his “hand brake to make sure it doesn’t lunge forward.” The family had been using the automobile over a year.

Conduct of appellant’s agent alleged to constitute negligence was failure to instruct Mrs. Flores to put her foot on the brake and take the gearshift out of “drive,” and failure to ascertain whether she was familiar with the operation of the automobile before telling her to step on the accelerator.

The initial problem narrows, we think, to whether the evidence raises an issue as to the element of foreseeability: Ought a reasonably prudent person to have anticipated under such circumstances that the adult owner of an automobile would press the accelerator of the vehicle upon request or instruction when the brake was not set, and without informing him that the owner was ignorant of the operation of the car? The question may otherwise be said to be that of whether defendant’s agent had a duty to ascertain whether it was safe for her to do so, before instructing Mrs. Flores to step on the accelerator. On this venue appeal we are not concerned with defensive issues.

Appellant’s argument is impelling. The question is difficult, and to us, extremely doubtful. Our doubt leads us to conclude that reasonable minds could differ, and a fact issue was thus presented. Sanchez v. San Antonio & A. P. Ry. Co., 88 Tex. 117, 30 S.W. 431; Texas & P. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, 333. Appellant’s points as to insufficiency of the evidence and overwhelming preponderance of the evidence are also overruled. Affirmed.


author: ARCHER, Chief Justice.

text:
    W. E. MITCHELL et al., Appellants, v. The STATE of Texas, Appellee. G. U. YOACHUM et al., Appellants, v. The STATE of Texas, Appellee.
    Nos. 11169, 11173.
    Court of Civil Appeals of Texas. Austin.
    Oct. 16, 1963.
    Eeliearing Denied in No. 11169 Nov. 6, 1963.
    Harrington .& Harrington, Adams & Sheppard, Longview, Wynne McKenzie, Jaffe & Tinsley, Dallas, Smead & Harbour, Jerry S. Harris, Longview, for appellants, W. E. Mitchell and others.
    J. W. Tyner, Glass & Glass, Tyler, John Ford, Kilgore, Fred Erisman, Longview, Gordon Wellborn, Houston, Phenix, Keeling & Wilder, Henderson, for appellants, G. U. Yoachum and others.
    Waggoner Carr, Atty. Gen., Cecil C. Rotsch and Robert B. Tyler, Asst. Attys. Gen., Austin, for appellee.
   ARCHER, Chief Justice.

These cases were filed and briefed separately, but were submitted and argued together and present the same questions and we will determine the issues in one opinion.

These are venue cases and in Cause No. 11,169 an order was entered in the Trial Court consolidating 61 Pleas of Privilege filed in 35 different penalty suits filed by the Attorney General in behalf of the State, and a similar order was entered in No. 11,173 consolidating numerous pleas of privilege in 69 separate penalty suits filed by the Attorney General in behalf of the State.

In Cause No. 11,169, proceedings were had as follows:

On the joint hearing evidence was offered applicable to cause No. 130,856, and by stipulation in open court, made in order to shorten the record on the venue question common to all such hearings and cases, it was agreed that the State’s petition and controverting pleas, filed in each of such consolidated cases, were identical in substance (differing only in names of defendants, dates, leases and wells), and that all would be considered as offered on the same basis as those in said cause No. 130,856, and that the testimony of Linward Shivers and Cecil C. Rotsch in such cause No. 130,856, shall be applicable to the other defendants whose pleas of privilege were consolidated and heard, and would be the same in each case.

The only evidence offered by the State consisted of the State’s petition (Exh. 1) and the State’s controverting pleas to the several pleas of privilege, (Exh. 2-A, 2-B, 2-C, and 2-D) which were admitted in evidence over defendants’ objection. The defendants’ objection to such evidence was predicated upon the fact that the jurat to the controverting affidavits was based solely upon hearsay by parties not able to testify as to facts set forth, and that the controverting affidavits being insufficient, there was no basis for introducing the petition. Upon the State’s sole evidence of pleadings, the Court overruled the Appellants’ respective pleas of privilege by one consolidated order entered on the 16th day of July, 1963.

A similar hearing with similar proceedings were had in the cases involved in Cause No. 11,173, and we do not copy such herein.

The points upon which the appeals are predicated are to the effect that there is no evidence, or that the evidence is insufficient to support the Trial Court’s order overruling the pleas of privilege and such is against the great and overwhelming preponderance of the evidence and that the State failed to plead and prove any facts to sustain venue in Travis County; that the State’s controverting affidavits, made by a person from hearsay without personal knowledge, is insufficient as a matter of law.

Since the questions presented in these appeals are the same as were presented in Harrington v. State, Tex.Civ.App., 363 S.W.2d 321, er. ref., n. r. e., we do not discuss the law or the facts, believing that the majority holding in the Harrington case supra is determinative of all issues in the present appeals, and we reaffirm our holding.

Appellants have filed very forceful briefs and among cases have cited Leonard v. Maxwell, Tex., 365 S.W.2d 340, reversing a decision of this Court and found in 356 S.W.2d 335.

We do not believe that the fact situations are at all similar in the Leonard case and in the instant cases. Article 6036 Vernon’s Ann.Civ.St, authorizes the institution of suits in Travis County, or in the residence of the defendant, and if more than one defendant, in the County of the residence of any of them or in the County in which the violation is alleged to have occurred for the recovery of penalties, etc.

The Attorney General elected to file suit in Travis County as he had a legal right to do.

Ray Cowan v. State of Texas, Tex.Civ.App., 356 S.W.2d 170, er. dism., w. o. j.

The judgments of the Trial Court are affirmed.


author: WILLIAMS, Judge.

text:
    Cecil K. NICKELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.
    John Y. Brown, Sr., John Y. Brown, Jr., Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, Cecil K. Nickell, was tried in the Perry Circuit Court on the charge of armed robbery. He was found guilty and sentenced to life imprisonment. On his appeal he complains of the fact that he was not granted a change of venue.

Prior to appellant’s trial a hearing was held pursuant to his petition for a change of venue. His attorneys stated that they had been unsuccessful in their attempt to obtain affidavits to the effect that he would not receive a fair and unbiased trial in Perry County. Sworn statements of the attorneys indicate that they spent at least a month attempting to find persons to sign the affidavits, and that individuals contacted generally believed the appellant would not get a fair trial but were unwilling to sign an affidavit.

Appellant introduced certain newspapers at the venue hearing. One paper carried a front page picture of him with handcuffs on, and other editions of the paper carried news stories which discounted his plea of not guilty. His attorneys stated that radio and television stations had given undue prominence to the crime.

Appellant was an itinerant salesman living in Lexington and unknown in Perry County. The victim of the armed robbery was a doctor who was prominent in the community. This fact is alleged to have been sufficient to cause bias against appellant. Along the same line it is appellant’s contention that the order of the circuit judge that he be sent to an out-of-county jail and be denied bail indicates the hostility of the community toward him. We held the denial of bail to be proper in Nickell v. Kelly, Ky., 357 S.W.2d 856.

When the case was called for trial the circuit court dismissed the entire jury panel when one of them stated in open court she thought the appellant was guilty. New names were drawn from the wheel and a jury was impaneled after 49 prospective jurors were examined. Appellant argues that this number is excessive and tends to show the extent of community bias.

The Commonwealth’s Attorney made a statement in his closing argument (no objection was made to the statement) which pointed out that the armed robbery had received publicity not only in local papers but in other papers of greater circulation. It is maintained by the appellant that the statement conclusively emphasizes the fact that news coverage of the events was extraordinary. As another indication of bias on the part of the jury appellant claims that the evidence was insufficient to have convicted him except for the fact that the jury was biased.

At the venue hearing before the circuit judge the Commonwealth countered statements made by appellant’s attorneys by the introduction of seven witnesses, each of whom testified that a fair trial could be held in Perry County. Each had read some of the newspaper accounts and some had heard radio accounts of the crime. All testified that the crime was given no more publicity and caused no more excitement than other crimes which had been reported in the community.

The trial judge must determine whether a situation exists which will probably prevent the accused from obtaining a fair and impartial trial within the venue from which removal is sought. In the making of such determination the trial judge has wide discretion in granting or refusing change of venue and his discretion is given great weight because he is present in the county and presumed to know the situation. Benge v. Commonwealth, 296 Ky. 82, 176 S.W.2d 131. In Carnes v. Commonwealth, 306 Ky. 55, 206 S.W.2d 44, this Court affirmed the trial court under facts similar in many respects to this case. The accused in his motion for change of venue asserted that the victim was related to most of the prominent families in the county, that accused was a stranger in the county, and that the facts had been widely discussed in the community. At a hearing on the motion the Commonwealth introduced witnesses who testified that a fair trial could be held in the county. This Court held that the burden of proof had not been sustained by the accused and motion for change of venue was denied. It was said:

“ * * * The trial court is vested with a sound discretion in determining the question where there is evidence both.in support and in resistance of the motion, and this court has uniformly held that it will not interfere with the trial court’s decision unless it appears with reasonable certainty that there has been an abuse of discretion.”

At the hearing on the -petition for a change of venue appellant failed to present affidavits sustaining his contention that a fair and unbiased trial could not be had in the county. Witnesses for the Commonwealth testified that a fair trial could be had. The fact that a nonresident defendant received widespread publicity concerning the crime was not deemed sufficient by the trial judge to warrant a change of venue. Nor is any significance placed on the fact that the appellant was sent to another county jail and refused bail. The trial judge decided there was no probability that a fair and impartial trial could not be had in Perry County. His decision does not indicate an abuse of discretion and will not be disturbed.

The happenings following the hearing on the petition for a change of venue are not indicative of an abuse of discretion on the part of the trial judge in denying a change of venue. The number of jurors exhausted before the jury was filled cannot be said to be excessive. The Commonwealth’s Attorney’s remark concerned press coverage which was well known to the trial judge at the time of the hearing, and the evidence upon which the jury made its verdict was not so inconclusive as to indicate that the verdict was made as a result of bias on the part of the jury.

The judgment is affirmed.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roxie SLUSHER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 26, 1963.
    John B. Breckinridge, A tty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Paul E. Hunley, Frankfort, for appellant.
    James C. Helton, Pineville, for appellees.
   STEWART, Judge.

This is an appeal from a judgment in a condemnation proceeding, awarding appel-lees, the heirs of John Slusher, deceased, $1000 for the land taken and $2500 for damages to the remainder of the property.

Appellant, Commonwealth of Kentucky, Department of Highways, condemned a 195-foot-wide strip of land belonging to appellees for relocation of Highway 119 in Bell County. A strip also was condemned for use as an approach from old Highway 119 to the new one. A total of 19.08 acres was taken from appellees’ holding of 140 acres of mountain woodland located on the north side of the old highway. The two strips so condemned lie in such a manner that appellees’ land was severed into three tracts.

Two houses and some outbuildings were situated on the 140-acre tract. A small portion of the land had been used for gardens; the rest is in timber. There is a spring on the land, which supplies the houses thereon; there is conflicting evidence as to whether this spring will be damaged.

Appellees also own a 60-acre tract located south of old Highway 119, which is bottom land. There are two houses on it. This land is in no wise affected by this proceeding, except that ■ the existing road; bordering the north side of it will be discontinued. Of all this total of 200 acres owned by appellees, only the 60 acres south of the old highway and only one house on it are listed for taxes, at an assessed valuation of $500.

Appellant first argues it was reversible error to permit appellees’ witnesses to testify, over appellant’s objection, concerning damages to a noncontiguous tract of land (the 60 acres lying below the existing highway), based on the diversion of traffic from the old to the new road.

The jury awarded $2500 for damages to the remainder, while the Commonwealth’s witness testified the remainder was merely damaged in the nominal sum of $100. There is no evidence the 60-acre tract was used as a unit with the 140-acre tract, of which latter tract the 19.08 acres was condemned for the purposes above mentioned. However, the court allowed testimony over appellant’s objection concerning estimates of damages to the remainder of the property based upon damage to the 60-acre tract due to the prospective loss of traffic on the old road.

This Court has never dealt directly with the question of noncontiguity of certain land as it affects an award for damages to the remainder of the property in eminent domain cases. The question, however, is exhaustively treated in 6 A.L.R.2d 1197, and at page 1222 the rule is stated with reference to two tracts of land separated by a highway. This statement from Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211, which appears in the annotation, is in point:

“Where there is not only no evidence of unity of use but strong evidence of disunity, the presence of the highway becomes, of course, a deciding factor in preventing physical contiguity. Where one of several farms was taken, and it appeared that each of them had retained its identity by possessing its own house and outbuildings and being separately worked, the fact that the farm which hád' been taken was separated from the others by a public road was stressed as a factor in concluding that damages could not be assessed for the others as remaining property.”

Even if it is conceded, arguendo, that damages may be assessed as to the 60-acre tract, despite its rioncontiguity, the basis of such damages under the proof, i. e., diversion of traffic, is contrary to our decisions and unquestionably resulted in an excessive award. See Department of Highways v. Jackson, Ky., 302 S.W.2d 373, and DeRossette v. Jefferson County, 288 Ky. 407, 156 S.W.2d 165. In the opinion of the DeRossette case the reason discontinuance of public travel past one’s land is disallowed as a claim for damages is expressed in this language: “ * * * Benefits which come and go with changing currents of public travel are not matters in which any individual has any vested right against the judgment of those public officials whose duty it is to build and maintain these highways. ***"

It is next insisted the trial court erred in refusing to admit testimony of a comparable sale offered by appellant’s witness, James Workman, one of its appraisers. Workman testified the before-value of the 140 acre tract was $7575. His basis for this estimate was a recent sale of so-called comparable land in the same locality. The trial judge refused to allow him to make a statement as to the sale price. By avowal, he testified the consideration paid was $20 per acre. The court based its ruling on the fact that the comparable property was not affected by a new road in the same manner as the property in issue. Such reasoning is unsound. Comparable sales are competent evidence. In Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127, 128, this Court said:

" * * * It is well settled that evidence of the sales of land of like character, similarly situated and at a point of time not too remote, is admissible for the dual purpose of showing the value of the property taken and also to show the facts upon which the witness bases his opinion regarding the value of the property in controversy. * *

See also Stewart v. Commonwealth, Ky., 337 S.W.2d 880, and City of Paducah v. Allen, 111 Ky. 361, 63 S.W. 981.

The next complaint concerns the refusal to strike the testimony of appellees’ witness, Cager Lawson, whose testimony was based on prices paid by the Commonwealth in the acquisition of other rights of way on the same project. Such evidence was held to be incompetent in United Fuel Gas Co. v. Mauk, Ky., 272 S.W.2d 810; Kentucky-West Virginia Gas Co. v. Hays, 238 Ky. 189, 37 S.W.2d 17; Louisville & N. R. Co. v. Johnson, 233 Ky. 628, 26 S.W.2d 535; and Commonwealth by State Highway Commission v. Combs, 229 Ky. 627, 17 S.W.2d 748.

■ In the recent case of Stewart v. Commonwealth, Ky., 337 S.W.2d 880, this ground for the incompetency of such evidence was given (quoting from Nichols on Eminent Domain, 2d ed., Vol. 5, sec. 21.33, p. 294): “ * * * ‘The reasoning which forbids consideration of forced sales generally, renders it incompetent for either party to put in evidence the amount paid by the condemnor to the owners of neighboring lands taken at the same time, and as part of the same proceedings, however similar they may be to that in controversy and whether the payment was made as the result of a voluntary settlement, an award, or the verdict of a jury.’ ”

A final complaint is that the valuation testimony given by witnesses for ap-pellees was uninformative and worthless since none of the witnesses was qualified to give estimates of value or could supply any facts as a basis for his opinion. The transcript of evidence bears out this argument to a great extent. However, we have not adhered to the rule that witnesses must be expert land appraisers in order to state their opinions as to real estate values; nor have we taken the position that recent comparable sales of similar property situated in the same community are the only basis for correctly estimating the value of the land under consideration. See Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, and Commonwealth Dept. of Highways v. Citizens Ice & Fuel Co., Ky., 365 S.W.2d 113.

In 32 C.J.S. Evidence § 545, p. 299, this pertinent statement is set forth: “A witness, to be qualified to testify as to the value of realty, must know the property to be valued and the value of the property in the vicinity, must understand the standard of value, and must be possessed of the ability to make a reasonable inference.”

We quote this general rule for the future guidance of the trial court in the event of a retrial of this case.

Wherefore, the judgment is reversed for further proceedings consistent with this opinion.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. John Lewis FINLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Paul E. Hunley, Dept, of Highways, Frankfort, for appellant.
    J. Craig Bradley, Jr., Bradley & Bradley, Georgetown, for appellees.
   PALMORE, Judge.

The Highway Department appeals from a judgment of the Scott Circuit Court awarding $37,500 to J. L. Finley and wife as compensation and damages resulting from the acquisition of 7.96 acres of their 50-acre farm located on U. S. 460 about one mile east of Georgetown. It is contended that prejudicial error occurred in three respects, as follows:

1. James H. Reynolds, a professional land appraiser who testified for the owners, had made an appraisal of the Finley tract in 1956 for his employer, Equitable Life Assurance Society, for the purpose of enabling Equitable to apportion an existing loan following a partition or division between Finley and his brother. Based on Reynolds’s insistence that the appraisal was for “loan value” and did not reflect “market value,” the court would not permit counsel for the Department to elicit from the witness the amount of the 1956 appraisal.

2. Several of the witnesses, including Reynolds, were permitted over objection to cite for comparative purposes instances in which small acreages of farm land in the environs of Georgetown had been purchased for industrial rather than farm use.

3.The witness Reynolds was permitted over objection to cite for comparative purposes three sales of property located in adjacent Fayette County at distances of six, ten and twelve miles from the Finley place.

On the first of these points it is our opinion that the trial court was in error. Regardless of the different purpose of the 1956 appraisal, it had to do with the value of the property and was a relevant, competent subject of cross-examination for impeachment purposes. If it was intended to and did reflect a figure less than “market value” it was up to the witness to explain the difference, just as it often falls the lot of a landowner to explain why the value he places on his property from the witness chair is so different from the value he has listed with the tax assessor. All of this is for the jury to consider and weigh. In this case, however, the jury did hear enough to realize that Reynolds was evading the question and obviously must have put a lower figure on the property in his 1956 appraisal; and when it is considered that the verdict was for $37,500 as against Reynolds’s estimate of $56,690, it becomes apparent that the jury did not accept his testimony at face value. Under the circumstances, we are unable to say that the exclusion of this impeaching evidence, though erroneous, was prejudicial.

On the second point we find ourselves in disagreement with the Department’s fundamental contention. That similar property was purchased for a “particular purpose” different from that to which it had been theretofore devoted should not necessarily render evidence of the sale inadmissible for comparative purposes. Cf. Sewer and Water Works Imp. Dist. No. 1 v. McClendon, 187 Ark. 510, 60 S.W.2d 920 (1933). Although the witnesses substantially agreed that the highest and best use of the Finley property was for specialized farming purposes, this testimony referred to the tract as a whole. It is common knowledge that reasonably level land fronting a main highway just outside a city is valuable for a variety of purposes other than farming. This was true with respect to that portion of the Finley farm here under discussion. In the absence of a showing that the other properties, comparable in all other respects, had some peculiar desirability or adaptability to industrial use that did not exist with regard to the front part of the Finley property, there was no reason to exclude evidence of the prices paid for them in free and voluntary transactions. We recognize that such a comparison is inherently deceptive in that the price paid for the front portion of other similar property will necessarily include the resulting diminution in value of the remainder of the property. This, however, is a circumstance that can be exposed by cross-examination, and when due allowance is made for it the evidence should be of high probative value. As indicated in Stewart v. Commonwealth, Ky., 337 S.W.2d 880, 884, (1960), if the properties are reasonably similar and a qualified expert is of the opinion that the price brought by one either affects or tends to show the value of the other, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony.

Our opinion on the third and last claim of error is the same. That property is located several miles away and in another county or political subdivision does not necessarily destroy its comparability from the standpoint of valuation and sale. Sewer and Water Works Imp. Dist. No. 1 v. McClendon, 187 Ark. 510, 60 S.W.2d 920 (1933); Knollman v. United States (6 Cir., 1954), 214 F.2d 106. See also West Kentucky Coal Co. v. Commonwealth, Ky., 368 S.W.2d 738, 741 (1963). Again, it is the professional witness, and not the court, who is the expert, and if the distance makes, a difference it is a matter to be developed under examination and cross-examination. Jurors- are well able to understand and evaluate such differences, and it is evident in this case that the jury did in fact exercise discretion in weighing the evidence-of the various witnesses.

The judgment is affirmed.

      . Even the amount of insurance carried on a particular building is admissible for this purpose. Cf. Maxwell v. Iowa State Highway Commission, 223 Iowa 159, 271 N.W. 883, 118 A.L.R. 862, 869.

      . Estimates for the Department ranged from $20,590 to $25,276, and for the landowners, $54,433 to $62,000 (excluding Finley’s own estimate of $75,000).

      . The 7.96 acres taken consisted of the entire 960-foot frontage along U.S. 460.


author: MILLIKEN, Judge.

text:
    Lester ROARK, Appellant, v. ALVA COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.

      Julian H. Golden, Pineville, for appellant.
    William A. Rice, Harlan, for appellees.
   MILLIKEN, Judge.

The Harlan Circuit Court affirmed a ruling of the Workmen’s Compensation Board which concluded that the claimant, Lester Roark, did not have silicosis and therefore refused him compensation. A referee of the Board had concluded that the claimant was permanently and totally disabled from silicosis, but recommended that the Board appoint a medical specialist in the field to examine him, a recommendation which the Board accepted by appointing Dr. Oscar O. Miller of Louisville. After the examination by Dr. Miller, the receipt of his report and the taking of his deposition, the Full Board concluded, after consideration of all the medical evidence in the record as well as the findings of Dr. Miller, that “ * * * we are unable to determine that this plaintiff’s disability is the result of any occupational disease.”

There is no question but that the claimant had an employment background in the coal fields which could have been a source of silicosis. Certainly, three well qualified physicians testified that they thought he had silicosis. On the other hand, three of the defendants’ medical witnesses said that he didn’t have silicosis. Dr. Miller concluded '‘that the findings were compatible with a very early second stage silicosis which in my opinion was not incapacitating * * *. No, he did not have any symptoms of silicosis in my opinion.” He said the claimant’s disability was caused by emphysema of non-occupational origin.

The claimant offered sufficient evidence to support an award in his favor had the Board so concluded. The burden of persuasion is upon the claimant. He not only must present a prima facia case, but he must overcome the conflicting evidence of the employer sufficiently to persuade the triers of fact — the Board — to decide in his favor. This Court cannot supplant the Board in its fact finding duty when conflicting evidence is presented to it.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    John C. ANGGELIS, Appellant, v. Luther M. LAND, Individually and Luther M. Land, Fayette County Court Clerk, Appellee.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.

      Charles V. Collins, John W. Collis, Lexington, for appellant.
    Herbert D. Sledd, Armand Angelucci, Lexington, for appellee.
   WADDILL, Commissioner.

This is an appeal from a judgment of the Fayette Circuit Court refusing to order the Fayette County Court Clerk to issue appellant a certificate of nomination (KRS 119.090), as Democratic nominee, for the office of State Senator from the Twelfth Senatorial District of Kentucky.

By the 1963 Redistricting Act passed by a special session of the Kentucky Legislature, Fayette County, which had comprised the Thirteenth Senatorial District, was divided into two districts, the Twelfth, that part of the county outside the corporate limits of the City of Lexington, and the Thirteenth, that part of the county comprising the City of Lexington. See KRS 6.010. This Act was approved by the Governor and, by reason of an emergency clause which in effect recognizes that candidates for the office of State Senator from each odd-numbered district must file for nomination in 1963, became effective February 28, 1963.

Appellant contends that: The Act created a new Twelfth Senatorial District; there is a vacancy in the office of Senator from the Twelfth District, and the people of the District will not be represented in the 1964-Senate unless the county clerk certifies and places on the ballot for the November, 1963-Election the names of the qualified candidates for Senator from that District.

Section 31 of the Kentucky Constitution provides:

“At the general election in the year one thousand eight hundred and ninety-three one Senator shall be elected in each Senatorial District, and one Representative in each Representative District. The Senators then elected shall hold their offices, one-half for two years and one-half for four years, as shall be determined by lot at the first session of the General Assembly after their election, and the Representatives shall hold their offices for two years. Every two years thereafter there shall be elected for four years one Senator in each Senatorial District in which the term of his predecessor in office will then expire, and in every Representative District one Representative for two years.”

In implementing this Section the Senate in 1894 adopted a plan whereby the terms of all the Senators representing even-numbered districts expire at the same time and the terms of those representing odd-numbered districts expire two years later. See 1894 Senate Journal, page 127. In accordance with this Section as implemented only the terms of the Senators from the odd-numbered districts expire in 1963 and, as previously stated, this fact was recognized in the emergency clause of the Redistricting Act.

The Act does not abolish the office, nor shorten the term of the Senator presently representing the Twelfth District and it is doubtful whether the Legislature could validly have done so. Payne v. Davis, Ky., 254 S.W.2d 710. Contrary to appellant s contention, it is our opinion that the Act did not create a new Twelfth Senatorial District but merely changed the geographic boundaries of that District. Therefore, there is no vacancy in the office of Senator from the Twelfth District.

Section 35 of the Kentucky Constitution states:

“The number of Representatives shall be one hundred, and the number of Senators thirty-eight.”

If another Senator were permitted to be elected from the Twelfth Senatorial District there would be a violation of Section 35 as the number of Senators would exceed 38.

Admittedly the redistricting has caused an unusual situation in which the Senator representing the Twelfth District neither lives within the boundaries of that District as presently constituted nor was he elected by the people who do live within them. However, as stated in Selzer v. Synhorst, 253 Iowa 936, 113 N.W.2d 724:

“ * * * The idea that we are personally represented and represented only by officials for whom we have voted stretches too far the theory of representative government. In some states our incumbent President did not receive a majority vote. In Washington, D. C., the residents did not vote at all. The President however, is still the President of all the people.”

Although a Senator is required by Section 32 of the Kentucky Constitution to be a resident of the district from which he is elected, once he is elected he represents generally all the people of the state and specifically all the people of his district as it exists during his tenure in office. Certainly no one would suggest that a Senator represents only those persons who voted for him. The fact that the persons who are represented by the Senator from the Twelfth District are no longer the ones who elected him indicates there is a hiatus following a redistricting of the state. However, this situation is comparable to that which results when persons move from one district to another.

Section 33 of the Kentucky Constitution provides inter alia that the Legislature shall redistrict the state every ten years. The framers of the Constitution must have realized that for two years after each redistricting there would be some persons in the state who would not be represented in the Senate by a Senator of their own choosing. Apparently the men who framed our Constitution thought that this circumstance was offset by the desirability of maintaining a Senate, in which at least one-half of the members are always experienced men. Section 31, Kentucky Constitution; Cf. People ex rel. Snowball v. Pendegast, 96 Cal. 289, 31 P. 103.

In light of Sections 31, 33 and 35 of our Constitution we conclude that appellant is not entitled to the certificate of nomination which he seeks by this action.

The judgment is affirmed.


text:
    NASHVILLE COAL, INC., Appellant, v. Floyd C. DRAKE, Appellee. SUBSEQUENT CLAIM FUND, Appellant, v. Floyd C. DRAKE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 25, 1963.

      Armer H. Mahan, Louisville, for appellant Nashville Coal, Inc.
    Paul D. Rehm, Versailles, J. W. Craft, Jr., Hazard, for appellant Subsequent Claim Fund.
    Donan & Vick, William P. Donan, Greenville, for appellee.
   WILLIAMS, Judge.

The appellee, Floyd C. Drake, injured his back while in the military service during World War II. On February 9, 1960, while working for appellant Nashville Coal, Inc., he wrenched his back when a chain slipped while he was setting bits on a mine loader. The Workmen’s Compensation Board found that he was permanently and totally disabled, 20 per cent due to the injury received while working for Nashville Coal, Inc., and 80 per cent due to the pre-existing condition of his back. His claim against the Subsequent Claim Fund was dismissed. On appeal to the circuit court the award was modified to the extent that the Subsequent Claim Fund was declared liable for 80 per cent permanent partial disability to the body as a whole. Both the employer, Nashville Coal, Inc., and Subsequent Claim Fund have appealed, asserting the court erred in assessing liability against Subsequent Claim Fund, and the appeals have been consolidated.

The circuit court’s right to amend the Workmen’s Compensation Board award is questioned by appellant. However, it will not be necessary to answer that contention due to the fact the case shall turn on the interpretation of the statute pertaining to Subsequent Claim Fund liability-The injury occurred prior to the effective date of the 1960 amendment to KRS 342.-120. The statute in effect at that time provided in part as follows:

“(1) If any employee who is permanently partially disabled, whether from a compensable injury or otherwise, receives a subsequent compen-sable injury by accident resulting in additional permanent disability so that the degree of disability caused by the combined disabilities is greater than that which would have resulted from the subsequent injury alone, and such employee is entitled to receive compensation on the basis of the combined disabilities, the employer shall be liable only for the degree of disability which would have resulted from the latter injury had there been no pre-existing disability. After the compensation liability of the employer, or his insurance carrier, if any, has been fully discharged, the remaining compensation to which such resulting condition would entitle the employee, less all compensation which the provisions of this law [chapter] would have afforded on account of the prior disability had it been compensated for thereunder, shall be paid out of the Subsequent Injury Fund * *

We interpret that statute to mean the Subsequent Claim Fund is liable when a present injury combines with the pre-existing permanent partial disability to produce a disability greater than that of the present injury alone and exceeding the total of the previous plus the present injury disabilities. See Combs v. Gaffney, Ky., 282 S.W.2d 817.

Because of appellee’s failure to divulge information concerning his pre-ex-isting back condition, only one doctor attempted to apportion the degree of disability resulting therefrom. Based on that doctor’s testimony the Board found that ap-pellee was totally disabled, 80 per cent of which was due to the pre-existing condition and 20 per cent to the last injury. Even if the pre-existing condition were considered a permanent partial disability, the sum of the previous and present injury disabilities equals 100 per cent total disability, leaving nothing over and above for which the Subsequent Claim Fund might have been liable. The Board had sufficient evidence before it to make the award, and the claim against the Subsequent Claim Fund was properly dismissed.

It follows that the circuit court was without authority to modify the award and to make the Subsequent Claim Fund liable for any part of it.

The judgment is reversed, with directions that a new judgment be entered in the circuit court affirming the award of the Workmen’s Compensation Board.


author: STANLEY, Commissioner.

text:
    King David CLARK, Appellant, v. TECON CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Oct 18, 1963.

      Tyler C.-Bourne, Paducah, for appellant.
    Reed & Hines, Paducah, for appellee.
   STANLEY, Commissioner.

The appeal is from a judgment dismissing a petition of the appellant, King David Clark, for a review of an order -of the Workmen’s Compensation Board denying him an award against the appellee, Tecon Corporation, by whom he was employed when injured.

The order of the Board was entered April 19, 1961, and the petition for review was filed in the Livingston Circuit Court 87 days later on July 14, 1961. The circuit court has no jurisdiction to review a decision of the Compensation Board unless the petition is filed within twenty days after its rendition. KRS 342.285. The respondent filed a motion to dismiss the petition for review upon this ground of limitations.

The plaintiff did not respond to the motion by any pleading. In a brief the plaintiff stated that he had filed a timely appeal from the decision of the Board in the Mc-Cracken Circuit Court because the hearings of the referee had been held in Paducah and process was served upon the employer in McCracken County, and that the Mc-Cracken Circuit Court had dismissed the proceeding bcause of the absence of jurisdiction, the plaintiff’s injury having been sustained in Livingston County. In that brief the petitioner invoked the provision of KRS 413.270 that if an action is commenced in due time and in good faith in any court and it is adjudged that the court has no jurisdiction, the plaintiff may within ninety days from the “time of that judgment” commence a new action in the proper court; and the time intervening between the commencement of the first and last actions shall not be counted in applying any statute of limitation. The application of that statute is pressed upon the appeal.

Conceding that the remedial statute applies to a judicial proceeding for review of a final order of the Workmen’s Compensation Board, in this case there was no proper showing in the Livingston Circuit Court of the facts or grounds for its application. A court, in determining legal questions, is limited to the consideration of the facts as pleaded. The facts relied on here were not alleged of record, and the court was not authorized to consider the attorney’s brief or argument unsupported by the record and presented extrinsically.

The judgment is affirmed.