text:
    Robert G. REYNOLDS, Appellant, v. Walter STEVES, Appellee.
    No. 13898.
    Court of Civil Appeals of Texas. San Antonio.
    March 21, 1962.
    Rehearing Denied April 18, 1962.

      Pat Maloney, San Antonio, for appellant.
    Kampmann & Kampmann, William C. Church, Jr., Robert P. Thomas, III, San Antonio, for appellee.
   MURRAY, Chief Justice.

Appellant’s statement of the nature of this case is as follows:

“This is an appeal from an order of the trial Court granting a Summary Judgment to one of two defendants. The plaintiff based his action against Walter Steves, individually, and Ingram Equipment Company, a corporation, seeking a joint and several judgment for damages for fraud. The Defendant Steves filed a Motion For Summary Judgment, which was denied. Later, at a hearing on a second motion for Summary Judgment, another Court granted same. No order of severance was entered and, subsequent to a trial on the merits of Plaintiff’s claim against Ingram Equipment Company, Appellant duly perfected this appeal.
“This appeal complains only of the error of the trial Court in granting the Summary Judgment of defendant Steves. No Appeal is made from the judgment entered in the Plaintiff’s case against Defendant Ingram Equipment Company.”

Appellant’s original brief contains but two points of error, presenting, generally, the contention that the trial court erred in granting Walter Steves’ motion for a summary judgment and dismissing him from the cause.

The cause thereafter proceeded to trial against the other defendant, Ingram Equipment Company, a corporation. This trial was to a jury and resulted in judgment in favor of plaintiff against Ingram Equipment Company in the sum of $621.25. In the judgment, the trial court brought forward its interlocutory order dismissing Walter Steves from the suit, thus making the dismissal a final judgment, to which action the plaintiff, Robert G. Reynolds, excepted and gave notice of appeal. The overall judgment was signed by the trial court on April 28, 1961. On May 18, 1961, appellant filed his appeal bond containing the following recital:

“Whereas in the above entitled and numbered cause pending in the 45th Judicial District Court of Bexar County, Texas, and at a regular term of said Court, to-wit, on the 19th day of January, 1961, a summary judgment was rendered in favor of Walter Steves, a defendant in the above styled and numbered cause, wherein and whereby the plaintiff was denied recovery against said defendant, Walter Steves, and the said plaintiff desires to appeal from such order granting a summary judgment to defendant, Walter Steves, and to take an appeal from such order to the Court of Civil Appeals for .the Fourth Supreme Judicial District Sitting in San Antonio, Texas; *

This appeal is only from that part of the judgment which granted a summary judgment to Walter Steves, and there is no appeal herein from that part of the judgment in favor of appellant against Ingram Equipment Company in the sum of $621.25. We will have more to say about this later.

Appellant’s petition alleged a cause of action against Ingram Equipment Company, a corporation, and its president, Waiter Steves, for a commission of $20,000.00 for making a sale to H. B. Zachry Company, of equipment amounting to about $2,000,-000.00. The defendants below defended upon the theory that appellant signed an agreement to settle his claim for commission for the sum of $2,500.00. Appellant controverted the affidavit of Walter Steves by stating in his controverting affidavit that he signed the agreement after Walter Steves had promised him that he, Reynolds, could personally and exclusively handle and service certain named accounts; that he believed these representations to be true and relied upon them, and would not have signed the agreement had he known the representations inducing him to execute it were false; and that he was damaged thereby. Appellant alleged in his petition and testified in his deposition, that two days after he signed the agreement to accept $2,500.00 as his commission on the Zachry deal, the accounts that had been promised to him by Steves were taken away from him and he was not thereafter permitted to service such accounts. Thus appellant attempts to set the agreement aside for fraud charged to both Walter Steves and the Ingram Equipment Company.

It is clear that appellant sets up as fraud a promise that in the future he was to service certain accounts and such promise was not kept. This would tend to show a breach of contract more than a fraud. For a promise to do something in the future to constitute actionable fraud, it is necessary that the promise be made with the intent at the time that it would not be performed, and with intent, design and purpose of deceiving. Texas Employers’ Ins. Ass’n v. West, Tex.Civ.App., 320 S.W.2d 55; Shaw v. Tyler Bank & Trust Co., Tex.Civ.App., 285 S.W.2d 782.

The record before us shows that appellant executed the agreement to accept the sum of $2,500.00 as his commission on the Zachry deal, and unless he could come forward and show by affidavit that this agreement should be set aside for fraud, it would stand as a complete bar to his recovery herein. The facts shown by appellant in his affidavit and deposition fall far short of showing fraud, therefore, the trial court did not err in granting Walter Steves a summary judgment.

Appellant contends that he appealed from the entire judgment, and that his statement in his original brief that “This appeal complains only of the error of the trial Court in granting the Summary Judgment of defendant Steves” was a mistake, and his appeal was actually from the entire judgment. We cannot accept this statement in view of the fact that the appeal bond recites that the appeal is only from the summary judgment in favor of Walter Steves. We are bound by this statement in the appeal bond.

There can be no question as to the right of a party to appeal from a severable part of a judgment. 3 Tex.Jur.2d p. 332, § 68; Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, affirming Reynolds v. Pierce, Tex.Civ.App., 320 S.W.2d 376.

Appellant’s original brief was filed in this Court on August 7, 1961, and that brief treated the appeal as one from only a part of the judgment. Appellee, Walter Steves, filed his .reply brief on August 31, 1961. Thereafter, on October 25, 1961, appellant filed his supplemental brief in which he undertook, for the first time, to question that part of the judgment which rendered judgment in his favor for the sum of $621.25, even though the Ingram Equipment Company was not named as an appel-lee in the appeal bond. This supplemental brief cannot be considered.

The judgment is affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Dorothy HULSE, Appellant, v. Fred DENNIS et al., Appellees.
    No. 7397.
    Court of Civil Appeals of Texas. Texarkana.
    April 3, 1962.
    Rehearing Denied April 17, 1962.
    Brown & Brown, Texarkana, for appellant.
    Harkness & Friedman, Texarkana, for appellees.
   FANNING, Justice.

This suit arose out of an automobile collision between the automobile driven by appellant Dorothy Hulse and an automobile driven by appellee Fred Dennis. Fred Dennis brought the suit individually and for his wife Faith Dennis and as next friend of his minor son Bryant Leslie Dennis. Appellant answered and filed a cross-action for damages against Fred Dennis. The case was tried before a jury upon special issues resulting in favorable findings for appellees and adverse to appellant. From an adverse judgment appellant has appealed.

Appellant on appeal contends to the effect that the trial court erred in not granting her motion for mistrial because of the injection of insurance in the cause by appel-lees; and in instructing the jury to the effect that appellant did not have insurance.

The matters complained of are more fully detailed in appellant’s Bill of Exception as qualified by the trial court; after omitting formal portions we quote from same in part as follows:

“ * * * while witness, Mrs. Fred Dennis, wife of the plaintiff, Fred Dennis, was testifying on direct examination, as a witness for plaintiffs, the following questions were asked said witness by plaintiff’s attorney, and the following answers were given, to-wit:
“Q. Did you talk to Dorothy Hulse that night?
“A. Yes, sir.
“Q. What did she tell you?
“A. Well, she told me — the first thing she said to me is: ‘You don’t need to worry; I am covered with insurance.’
“That immediately upon said witness testifying as set out above, the defendant, through her attorney, moved the Court to discharge the jury and declare a mistrial, because of the introduction of said unlawful and prejudicial evidence. The Court immediately called a recess, and talked with both attorneys, and discovered that neither party had liability insurance; the Court then overruled said motion of plaintiff, and prepared an instruction to the jury, informing them of such, to which action of the Court in overruling said motion and giving said instruction, the defendant excepted, and here and now tenders this her Bill of Exception No. 1, and prays that same be approved by the Court and made a part of the record in this cause. (Here follows signature of attorney for appellant.)
“The above and foregoing bill of exception No. 1, of defendant having been presented to the Court for approval, and after same was examined and considered and same is approved this the 10th day of May, A. D., 1961, with the following qualifications:
“After the testimony referred to in said bill of exception was introduced, and the Court had held a conference with the attorneys for both plaintiffs and defendant, the Court gave the following instruction to the jury, over the objection and exception of the defendant:
“ ‘Let the record show and reflect that the' Court, during the recess immediately following the mention of the word “insurance”, determined from all parties that the defendant Dorothy Hulse, did not have insurance coverage of any type or character whereby anyone other than herself would be responsible for any amount obtained as a result of a judgment unfavorable to her in this cause and the Court so informed the jury,’ “and that the defendant objected and excepted to the giving of said instruction to the jury, which was given over the objection of defendant, and the Court overruled said objection and exception, and defendant’s exception is hereby noted, and made a part of the record in this case.” (Here follows signature of the trial judge).

The record shows that the trial court gave the following quoted instruction to the jury:

“Ladies and gentlemen of the jury, at this time it becomes the duty of the court to instruct and inform you that all parties to this suit agree that there is no insurance of any type or character carried by Mrs. Hulse whereby anyone other than Mrs. Hulse would be liable for the amount or any amount which might be rendered against her as a result of the trial in this cause. In plain English, there is no insurance in the case.”

The record further shows that appellant’s counsel made the following objections and exceptions to the Court’s instruction in question:

“Mr. Brown: Defendant objects and excepts to giving the instruction set out above, because it would put the defendant in the position of proving from the witness stand that she had no insurance and that she did not tell the wife of the plaintiff that she did have any, and would raise the question in the minds of the jury as to the varacity of the defendant, and the said Mrs. Dennis; and furthermore, because a jury would be calculated to be prejudiced against the defendant because of the lack of insurance in operating her automobile on the highways of this state without any (insurance) ; the question of insurance being injected into the case by the wife of the plaintiff on direct examination and not on cross-examination is error, and calculated to prejudice the jury against this defendant.”

In this cause appellant was cast in the role of both a defendant and a cross-plaintiff.

Showing that the defendant-cross plaintiff had insurance or that she did not was irrelevant in the case at bar. Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962, opinion adopted.

It was improper for appellees to directly inject insurance into the case at bar. Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962, opinion adopted.

It is our view that the matters complained of by appellant were reasonably calculated to cause and probably did cause the rendition of an improper judgment in this cause under Rule 434, Texas Rules of Civil Procedure.

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


author: GRISSOM, Chief Justice.

text:
    WESTERN UNITED REALTY COMPANY, Appellant, v. Joyce Reynolds SHAW et vir, Appellees.
    No. 3546.
    Court of Civil Appeals of Texas. Eastland.
    March 30, 1962.
    Rehearing Denied April 20, 1962.
    Bonham, Stanley & Campbell, George W. Eddy, Houston, for appellant.
    Kleinecke, Nussbaum & Piperi, Galveston, Eugene N. Catlett, Houston, Will Wilson, J. Milton Richardson, Austin, Vinson, Elkins, Weems & Searls, Boone & Kraft, Houston, for appellees.
   GRISSOM, Chief Justice.

Judgment was rendered in this case in May 1959. Appellant’s motion for a new trial was overruled on July 10, 1959. Numerous agreed motions for extension of time to file the statement of facts were filed prior to February 2, 1961. The original and copies of the statement of facts were delivered to appellant on February 2, 1961. Four motions for additional time to file the statement of facts, other than the one now in controversy, were filed by appellant after it received the statement of facts. They were granted. The last such motion, filed August 14, 1961, was granted by this court on September 8, 1961. The time for filing the statement of facts was, thereby, extended to October 15, 1961, and the time for filing briefs was extended to November 15, 1961. The Statement of Facts was tendered for filing on October 17, 1961.

Appellant did not request appellees to sign the original of the statement of facts until after expiration of the last extension period. Apparently, both the original and copies of the statement of facts were in appellants possession for more than four months and appellees’ attorneys approved and signed the original when it was presented to them. Without further statement of the details shown by the record, it was apparent that appellant had not shown good cause for its failure to file the statement of facts within the last extension period. Therefore, after a hearing, on January 5th, 1962, we overruled appellant’s motion, filed on October 23rd, 1961, to file the statement of facts.

Appellant filed its original motion for extension of time within the time prescribed by Rules of Civil Procedure, rule 386. We, therefore, had jurisdiction to grant appellant’s last motion for extension of time to file the statement of facts. Parks v. Purnell, 135 Tex. 182, 141 S.W.2d 585; Hodges et al. v. Nix, Tex.Civ.App., 225 S.W.2d 576 (Ref. N.R.E.). But, although we had jurisdiction, we could not grant the motion because appellant wholly failed to show good cause why it had not filed the statement of facts within the last extension period. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; Rodriguez v. Del Moral, Tex.Civ.App., 329 S.W.2d 896; Bradshaw v. Bradshaw, Tex.Civ.App., 187 S.W.2d 688; Darden v. Davies, Tex.Civ.App., 217 S.W.2d 892; Crawford v. Crawford, Tex.Civ.App., 256 S.W.2d 875; Pacific Fire Insurance Company v. Smith, 145 Tex. 482, 199 S.W.2d 486.

On January 15, 1962, the State filed a motion to dismiss the appeal for want of prosecution. On January 19, 1962, the Shaws filed a like motion. Appellant’s brief should have been filed by November 15, 1961. Appellant was promptly notified of the filing of said motions to dismiss its appeal for want of prosecution. Appellant has not replied to either of said motions. Perhaps appellant has concluded that its appeal could not be successful without a statement of facts. In any event, it has never replied to said motions to dismiss its appeal; it has tendered no briefs and it has made no effort to show good cause for its failure to timely file briefs or to show that appellees have not suffered material injury thereby. Therefore, appellees are entitled to have their motions sustained. R.C.P. 415; Haynes v. J. M. Radford Grocery Company, 118 Tex. 277, 14 S.W.2d 811; Wood v. Northeast Independent School District, Tex.Civ.App., 347 S.W.2d 847; Bloss v. Alston, Tex.Civ.App., 284 S.W.2d 416.

The appeal is dismissed.


author: DENTON, Chief Justice.

text:
    Essie Lee RICE et al. v. Ronnie SIMMONS.
    No. 7116.
    Court of Civil Appeals of Texas. Amarillo.
    March 19, 1962.
    Rehearing Denied April 16, 1962.

      Ray & Knudtson, Amarillo, R. Dale Win-get, Amarillo, of counsel, for appellants.
    Culton, Morgan, Britain & White, Amarillo, Jess Dickie, Amarillo, of counsel, -for appellee.
   DENTON, Chief Justice.

Essie Lee Rice, individually and as next friend of Vicki Lee McAdams, a minor, brought this suit for personal injuries against Ronnie Simmons received by Vicki Lee McAdams in a one-car collision. It is undisputed that Miss McAdams was a guest of Simmons. At the close of plaintiff’s testimony the trial court sustained defendant’s motion for instructed verdict. The principal question presented is whether there is any evidence of probative force upon which the jury could have made findings relied on by the appellant.

The facts are relatively simple and in the main uncontradicted. On the night of December S, 1959 Miss McAdams, along with another teenage girl and boy were guests in the car of Ronnie Simmons. The two couples were double dating and were riding around in the City of Amarillo. As they drove upon an overpass on the outskirts of the city Simmons stopped the car. Thereupon he and the other young man got out of the car and left the two girls inside. While the boys were out of the car it began to roll down the incline and came to rest at the foot of the overpass. In the meantime the girls had locked the car but after the boys ran to the car the doors were unlocked. Simmons had some difficulty in starting the car and all agreed he became “mad.” After a few minutes the car started and Simmons admitted he “took off fast” on a service road going in the direction of Amarillo. This service road ran alongside the main expressway between Canyon and Amarillo. The expressway was in the latter stages of construction but the service road was paved, and had gravel shoulders. The plaintiff testified Simmons was driving at a speed of approximately 75 miles per hour, although she admitted she did not look at the speedometer, and on cross examination she testified she did not know how fast he was actually driving. She further testified Simmons appeared to be mad because the car wouldn’t start, and stated, “He first drove along real fast and wouldn’t talk.” After the car had gone along the service road approximately three-quarters of a mile the road took a sharp turn to the left onto the main highway. Simmons began to apply his brakes, but after realizing he could not slow the car sufficiently to make the turn he proceeded straight into a field. As the car came to rest the two girls were thrown from the car. Miss McAdams was taken to the hospital for emergency treatment but she was not hospitalized. Her right leg, ankle and back were injured, and she was under the care of a doctor for several months.

In reviewing the action of a trial court in granting an instructed verdict, we must consider all the testimony from the standpoint most favorable to the party against whom the verdict was instructed. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. It is also equally well settled that in order to sustain the granting of the instructed verdict it must be determined that there is no evidence of probative force upon which the jury could have made findings relied on. Burt v. Loc-hausen, supra and cases therein cited.

These basic principles are to be applied to the evidence here as it concerns the conduct of Simmons, to determine liability under Article 6701b, Vernon’s Ann.Civ.St., commonly known as the “Guest Statute.” There can be no liability placed upon Simmons under this statute “unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.” No contention is made that the alleged acts of Simmons were intentional, therefore his liability must be based on the latter part of the quoted statute which has been held to be “gross negligence.” Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022.

In determining whether or not there is any evidence of probative force to hold Simmons guilty of gross negligence, we must consider the element of conscious indifference which is an essential element of gross negligence. Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571. In that case the Supreme Court said, “The ‘conscious indifference’ included in the definition of gross negligence is indifference ‘to the rights or welfare of the person or persons to be affected by it (the act or omission).’ * * * The probability of danger to all such persons must be considered in determining whether negligence exists, as well as the grade.”

In our opinion the facts of this case sustain the finding of the trial court that Simmons was ' not guilty of gross negligence. The evidence does not raise the issue that Simmons drove in reckless disregard of the rights of the plaintiff or was consciously indifferent to her welfare. The facts simply present a common custom or practice of teenage boys and girls “joy riding.” There is no evidence of any ill feeling among any of the occupants of the car. Simmons admittedly became mad or irritated because the car would not start, but the only outward manifestation of this state of mind was his remaining silent over a brief period of time and the fact he started the car off at a fast rate of speed. It is obvious Simmons’ ill feeling was directed to the automobile itself, rather than to the occupants thereof. We fail to see how these acts and omissions, 'in the light of the circumstances, would constitute gross negligence. It is undisputed that Simmons thought the service road led straight into the main highway, and he testified he was looking for a highway sign that would indicate the merger of the two roads. When the service road took an abrupt turn into the main highway without warning, Simmons proceeded straight into a field to avoid overturning the car. There was no traffic in the area and no evidence of obstructions along the service road on which the car was traveling. After reviewing this case as a whole, we are convinced Simmons committed acts of ordinary negligence in that he failed to exercise ordinary care in the manner in which he operated his automobile. However, there are no facts or circumstances shown which would justify the finding that Simmons’ conduct was grossly negligent.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Uhlon Glenn WATERS, Appellee.
    No. 7117.
    Court of Civil Appeals of Texas. Amarillo.
    March 19, 1962.
    Rehearing Denied April 23, 1962.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Gordon, Gordon & Buzzard, Pampa, for appellee.
   NORTHCUTT, Justice.

This is a workman’s compensation suit in which appellee, Uhlon Glenn Waters, was plaintiff and appellant, Texas Employers’ Insurance Association, was defendant. On findings of the jury that on the 20th day of June, 1960, plaintiff was injured and suffered total and permanent incapacity, the trial court entered judgment accordingly. From that judgment appellant perfected this appeal. Hereafter plaintiff will be referred to as appellee and the defendant as appellant.

Appellant’s first three assignments of error deal with the question of no evidence, insufficient evidence, and against the overwhelming weight and preponderance of the evidence to sustain the conclusion that ap-pellee was permanently unable to procure and retain work as a salesman.

The appellee was working as a millwright and it is undisputed that he was injured on June 20, 1960, while setting a fin fan. Appellee testified as follows: While doing this work he fell through the floor of the story where they were working and fell about 12 or 15 feet to the story below. In th fall, appellee hit his back on a ladder and glanced off and went on down to the floor of the next story and hit on his back on the steel grate on the floor. After falling he was unable to get up and was practically carried down the stairs. He was taken to Dr. W. C. Barksdale’s office, the company doctor, where an X-ray was made of his back. Dr. Barksdale told appellee that he had a perfect back and he should go back to work. After going back to Dr. Barks-dale a time or two and the doctor thought it was a big joke, he went to see Dr. Margo, a specialist at the McBride Clinic in Oklahoma City. Dr. Margo took several X-rays, which he interpreted, and examined appel-lee and testified appellee had a forward displacement of the fifth lumbar vertebra over the sacrum and also had a bifid lumina of the first sacral segment with a marked increased angulation or lordotic curve. Dr. Margo also testified that appellee would get better with rest but would get worse with activity and based upon the objective symptom revealed by his examination appellee was disabled from performing manual labor. There was other testimony as to the suffering of the appellee and also as to his experience as a salesman.

Although there was other testimony, we think the above is sufficient to sustain the verdict of the jury as stated in Travelers Insurance Company v. Jordan, Tex.Civ.App., 339 S.W.2d 235, 240, N.R.E.:

“The foregoing evidence is deemed sufficient to sustain the jury findings in question; giving full effect, as we must, to the established rule that ‘If, discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor, then it is to be con-eluded that there is evidence to support the verdict.’ Traders & General Insurance Company v. Durrette, Tex.Civ.App.1953, 258 S.W.2d 346, 347.”

Since there is sufficient evidence in the record to support the judgment of the trial court for compensation by reason of total and permanent incapacity, the judgment will not he reversed merely because there is evidence in the record that appel-lee did some sales work and earned some money. That is an evidentiary matter. Trinity Universal Insurance Company v. Scott, Tex.Civ.App., 342 S.W.2d 348, N.R.E. and many cases there cited.

Total incapacity within the Workmen’s Compensation Law implies disability to perform usual tasks of a workman and not merely the usual tasks of any particular one trade or occupation. Texas Indemnity Ins. Co. v. Bonner, Tex.Civ.App., 228 S.W.2d 348; Travelers Insurance Company v. Truitt, 5 Cir., 280 F.2d 784. Appellant’s first three points of error are overruled.

By appellant’s fourth assignment of error it is contended the court in defining the term “total incapacity” restricted the jury to a consideration of the same type of employment at which appellee was working at the time of the injury. The charge of the court was as follows:

“The term TOTAL INCAPACITY does not imply ones absolute inability to perform any kind of labor, but means the one must be so incapacitated that he becomes disqualified for performing the usual tasks of a workman to such an extent that he cannot procure and retain employment. You are further instructed that the term TOTAL INCAPACITY does not imply that one has such incapacity merely in the event that, after the injury, he is unable to do the same or as much and hard work as he did before the injury, but if one has sufficient capacity for physical work in any employment suited to his experience and condition so that he is fit to find and retain work therein with reasonable regularity and duration, then such person is not regarded as totally incapacitated.”

The first sentence of this definition has been approved by our courts for a long period of time. Travelers Insurance Company v. Truitt, 5 Cir., 280 F.2d 784; Texas Employers’ Insurance Association v. Mallard, 143 Tex. 77, 182 S.W.2d 1000.

However, we think the second sentence of the court’s charge here is contrary to appellant’s contention and does not mean it must apply to the same type of employment. We overrule appellant’s fourth point of error.

Assignments of error five and six insist the court erred in admitting into evidence, over appellant’s objection, X-rays offered by Drs. Margo and Falkenstein since it did not appear that the doctors were personally present when the X-rays were taken. Each of the doctors testified the X-rays were either made by them or under their supervision and control and that each exhibit correctly portrayed that portion of the anatomy of the appellee they purported to portray. We think this is sufficient to admit the X-rays. Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753. Affirmed 132 Tex. 172, 123 S.W.2d 314. Appellant’s fifth and sixth points of error are overruled.

Assignment of error seven urges error by the trial court in admitting the testimony of Dr. Margo, a doctor who had merely examined appellee for the purpose of preparing himself to testify, which testimony did not exclude the subjective complaints and history given him by the appellee.

We are familiar with the rule where statements of subjective symptoms or past suffering, made to a physician employed to make examination for the purpose of qualifying such physician to testify, and not for the purpose of treatment, is inadmissible. But, we do not think that rule is applicable here because of the main and controlling portion of Dr. Margo’s testimony was based upon his examination, X-rays taken under his supervision and control, hypothetical question and objective symptoms. Dr. Margo testified what his findings were demonstrated objectively.

He was asked this question: “Basing your opinion on the objective symptoms revealed at the examination of Mr. Waters, please state whether or not Mr. Waters was disabled from performing ordinary manual labor.” His answer was: “He was.” He further testified from objective symptoms that appellee would get better with rest but would get worse with activity.

We think any doctor would ask a patient how he was hurt, if that hurts, etc. The following hypothetical question was propounded to Dr. Margo :

“Q. Assuming that Uhlon Glenn Waters was, on June 20, 1960, in good health and physical condition and that on this date he fell from a super structure approximately twelve feet to the next floor, landing on his back, and that he had had no trouble with his back prior to that date, but that he has had continued pain in his low back ever since the fall, do you have an opinion as to whether or not the fall of June 20, 1960, was the producing cause of the disability that you have found?”

His answer was:

“A. Assuming the history as given is correct that he had had no previous back trouble or injury, and that following such injury on June 20th, 1960, he has had pain and disability, I feel that the above accident was the producing cause of such disability.”

The hypothetical question was based upon evidence in the record. Appellant’s seventh point of error is overruled. Judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    George FARGASON et al., Appellants, v. ECONOMY FURNITURE, INC., Appellee.
    No. 10949.
    Court of Civil Appeals of Texas. Austin.
    March 28, 1962.
    Rehearing Denied April 18, 1962.

      Byrd, Davis & Eisenberg, Marion S. Roberts, Jr., Austin, for appellants.
    Fagan Dickson; Cofer & Cofer, Douglass D. Hearne, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a take nothing judgment rendered in a suit filed by appellants against the appellee for damages and for injunction.

The plaintiffs alleged that they owned and ■occupied as residences certain tracts of land in the vicinity of defendant’s furniture manufacturing plant and that the incinerator at the plant in disposing of the ■cuttings from the wood working mill by burning of the waste cast smoke, sawdust and fumes which would settle to the ground and follow the contour of the land and blow on plaintiffs’ property when the wind is in the right direction (South, South Southeast, Southeast, or East Southeast) ; that because of sawdust, fumes and smoke blowing in the windows, it is impossible for one to •sleep and unbearable when one works in the yard, caused more sweeping and cleaning than usual in the house, made necessary the closing of the windows and doors and laundry had to be brought into the house to avoid the soot and smoke; evaporative coolers are rendered ineffective and that ashes collected on utensils.

The plant is alleged to operate the incinerator continuously from 8:00 A. M. to 9:00 P. M. and continuously during operation to emit noxious, unwholesome, nauseating and offensive smoke onto the property of the plaintiffs, the use made by the defendant being alleged to be unreasonable.

The plaintiffs alleged as damages burning eyes, burning noses, throat tickling and burning, violent and painful coughing, difficulty in breathing, and great discomfort and pain. Damages were claimed in the sum of $5,000.00 each, and probable increase in damages of $250.00 a month.

On trial to a jury submitted on special issues the jury found that smoke, sawdust and fumes were blown onto the property of plaintiffs and that such constituted a nuisance to plaintiffs; that the incinerator could not be operated without creating a nuisance to plaintiffs. The jury further found that the operation of the incinerator caused injury or damage, or harm and inconvenience to the plaintiffs. In answer to special issue No. 8 the jury found that such injury or damage, or harm and inconvenience was not intentional on the part of the defendant.

In answer to issues inquiring as to the amount of damages, if any, that would fairly compensate the plaintiffs (submitted by separate issues) for the injury or damage, or harm and inconvenience, if any, the answer was none to each of the issues.

Based on the answers of the jury that the plaintiffs were not entitled to any amount of money, the Court entered a take nothing judgment.

The appeal is based on twenty four points of error and are that the plaintiffs and each of them suffered some damages as a matter of law; that the answer of the jury to special issue No. 9 is against the great weight and preponderance of the evidence; that there is a conflict between the answers to special issue No. 7 and the answer to issue Nos. 9 and/or 10, and/or 11; that the Court erred in failing to grant an injunction restraining the defendant from operating the incinerator in whole or in any of the several conditional manners, such as when it produces smoke, or sawdust, or when the wind is from certain directions.

The evidence is in conflict but there was no evidence of any actual measurable damage suffered by any of the appellants. There was no claim for damages to land.

Elroy Moore, one of the appellants, testified that he lived about 500 yards northeast of the incinerator and that the smoke, sawdust and fumes are unbearable that come from the incinerator and that sawdust collected on his premises and that it was impossible to sleep; that tests were made of falling sawdust by a Dr. Gloyna.

Mrs. Leta E. Fargason, an appellant, testified that she lived about one fourth of a mile from the plant in question and as to her residence and that sawdust and smoke goes over her house and gets in the house at times; that she is required to do more sweeping to get rid of the sawdust as well as washing the curtains, laundry and other house work; that the odor of smoke was present. The other appellants gave testimony concerning smoke and sawdust coming from the incinerator comparable to that of Mr. Moore and Mrs. Fargason and we do not give a résumé of such.

The appellee called a number of witnesses, one of whom testified as to certain pictures of the plant and premises and we will not attempt to review all of such testimony but will restate in part the testimony of J. G. Albrecht, who lives near the plaintiffs Kingsbury, Fargason and Moore, who stated that he had not heard his wife complain of his house being full of sawdust and soot; that sometimes there is a slight attack of smoke, but such did not bother them. Mr. Bagley, an Agricultural and Mechanical College graduate and a retired army officer who owned two houses in the neighborhood, testified that he had not been annoyed by smoke, dust or sawdust from the incinerator and seldom smelled the smoke; that he burned his own trash and garbage and that he had no complaint as damage to his household goods because of smoke or dust.

Mr. Kern, plant superintendent, testified that the only persons complaining were Mr. and Mrs. Jirasek, plaintiffs in a former suit, and he further testified that the plant and premises were kept clean and that the incinerator functioned properly.

Special issue Nos. 9, 10 and 11 submitted the questions of the award of damages, if any, to the jury with the answers being none. No objection was made by plaintiffs to the charge.

We believe that the jury’s answers are reasonably supported by the evidence. Benoit v. Wilson, 150 Tex. 273, 239 S.W. 2d 792. The true measure of damages is compensation for injury or loss suffered. 31 Tex.Jur., Sec. 47, p. 464.

The cases such as Daniel v. Ft. Worth & R. G. Ry. Co., 96 Tex. 327, 72 S.W. 578, are authority for the recovery for discomfort as well as depreciation in the value of land, but they do not hold that a jury must allow damages for discomfort.

The Court recognized in submitting the damage issue, by using the words “What amount of money, if any * * * ”, that the jury was permitted to find no damage and no objection was made thereto.

“In an action for damages in which the law furnishes no precise legal measure for their recovery, and they are un-liquidated, the amount to be awarded rests primarily within the discretion of the jury, * * *” 17 Tex.Jur.2d Sec. 335, p. 408.

A jury is not required to speculate as to damages from examples of inconvenience and it is improper for it to do so. Hindman v. Texas Lime Company, 157 Tex. 592, 305 S.W.2d 947.

We do not believe the Court abused its discretion in refusing an injunction. King v. Miller, Tex.Civ.App., 280 S.W.2d 331, error ref., N. R. E.

The appellants in cross examination of Professor Thompson, Director of the Bal-cones Research Center, who had testified concerning the operation of the plant, stated that they were not trying to close the plant down or trying to cease the operations of that plant.

The abatement of a lawful business is a harsh remedy and there should be a balancing of equities by the Trial Court in order to determine if an injunction should be granted even though the jury found it to be a nuisance.

Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615; Lamb v. Kinslow, Tex.Civ.App., 256 S.W.2d 903, error ref., N. R. E.

The judgment of the Trial Court is affirmed.

Affirmed.


author: RENFRO, Justice.

text:
    AMBROSE & CO., Inc., et al., Appellants, v. C. O. HUTCHISON et al., Appellees.
    No. 16294.
    Court of Civil Appeals of Texas. Fort Worth.
    March 23, 1962.
    Rehearing Denied April 20, 1962.

      Lattimore & Lattimore and Hal M. Lat-timore, Fort Worth, for appellants.
    Elton M. Hyder, Fort Worth, for ap-pellees.
   RENFRO, Justice.

In a trial before the court the plaintiffs C. O. Hutchison and L. E. Nolley were awarded a money judgment against the defendant Ambrose & Co., Inc., and foreclosure of a constitutional lien upon certain described property against Ambrose & Co., Inc., and Eagle Mountain Holdings, Inc. Both defendants appealed.

The controversy arose out of the construction, under a written contract between plaintiffs and Ambrose & Co., Inc., of a pier at Eagle Mountain Lake.

The defendants took the position that the pier was not an “article” or “building” within the meaning of the Constitution.

It is provided in Art. 16, § 37 of the State Constitution, Vernon’s Ann.St. that “mechanics, artisans, and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; Sji ⅜ ⅜ >i

It is to be noted the constitutional provision does not define the word “building”.

In Mutual Lumber Co. v. Sheppard, Tex.Civ.App., 173 S.W.2d 494, 497, the court adopted the following definition of a building: “It is generally held * * * that the meaning of the noun ‘building’ depends usually upon the particular facts and circumstances of each case, controlled largely by the intention of the parties, or by the aim or purpose of a particular statute. The noun ‘building’ has been generally held to include any edifice erected by the hand of man of lumber, iron, stone, brick, wood, marble, cement, or any other substance, connected together, and designed for any use in the position fixed; or to include an edifice, an erection, a fabric built or constructed; a structure designed for the habitation of men or animals, or for the shelter and protection of property. Whenever the noun ‘building’ is used in this sense it has been held to include all sorts of structures, fabrics built or constructed, edifices or erections used or useful to man. See 12 C.J.S., Building, pp. 382, 383, for a list of such buildings or structures.”

The pier in question was built of steel and heavy timber. According to plaintiffs’ testimony its cost was in excess of $13,-000.00. One end was anchored on dry land and the balance was affixed in a permanent stationary manner in and over the water of the lake by means of steel pipes. Besides the usual purposes of a pier it was also designed to provide a storage place for boats and protection for boats, and to protect floating boat houses. Under parts of the pier-places were provided for the purpose of securing boats underneath the pier.

Under the definition set out above and taking into consideration the type of structure, cost, intention of the parties, and the uses for which it was constructed, we hold the pier was a building within the meaning of the Constitution.

In another point defendants contend the court erred in holding that the plaintiffs were mechanics or artisans within the meaning of Art. 16, § 37, supra. There was evidence that building a structure of the kind in question required special skills and that plaintiffs were experienced in such construction. There is ample evidence to sustain the court’s implied finding that plaintiffs qualified as mechanics or artisans under the constitutional provision.

Defendants contend the court erred in overruling two of their exceptions which attacked the sufficiency of plaintiffs’ pleadings. In our view the record does not reflect reversible error by reason of the ruling of the court.

The defendants also ask reversal upon the alleged grounds that plaintiffs waived their rights to a constitutional lien; that Eagle Mountain Holdings, Inc., was a bona fide purchaser without notice; that Am-brose & Co. was entitled to recover against plaintiffs on its cross-action, and that the described property was not properly identified as the property upon which plaintiffs furnished labor and material.

In a case tried without a jury, the court sits as a trier of the facts, as well as the law. He is the judge of the credibility of the witnesses and the weight to be given their testimony. Paddock Engineering Co. of Texas v. Rife, Tex.Civ.App., 310 S.W.2d 594. Where there is probative evidence to support the findings and judgment, they are controlling on the reviewing court and will not be disturbed even though the evidence is conflicting. 4 Tex.Jur.2d, p. 400, § 839.

There is ample evidence of probative force in the record to sustain the implied findings of the trial court to the contrary of the above stated contentions of the defendants. Since there is ample evidence to sustain such implied findings, this court is without authority to disturb them. Carter v. Richardson, Tex.Civ.App., 315 S.W. 2d 378; Munn v. Riggs, Tex.Civ.App., 257 S.W.2d 714.

All points of error are overruled and the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Herman PETERSEN et ux., Appellants, v. ROBINSON OIL & GAS COMPANY et al., Appellees.
    No. 13896.
    Court of Civil Appeals of Texas. Houston.
    April 5, 1962.

      Wilson M. Rutherford, El Campo, for appellant.
    Trotter, Cramer & Childs, Ray T. For-tenbach, K. Pat Gregory, Houston, for ap-pellees C. J. Downey and D. F. W. Downey.
    Wm. J. Zeman, Lloyd G. Minter, Bartles-ville, Old., E. H. Brown, R. K. Batten, Marion R. Froehlich, Houston, for appellee Phillips Petroleum Co.
   COLEMAN, Justice.

This is a suit to cancel and terminate an oil, gas and mineral lease on the ground that the primary term of the lease had expired prior to the time drilling operations began. After a trial to the court without a jury, the desired relief was denied.

The lease involved in this controversy was dated March 27, 1947, and contained the following material provisions:

“2. Subject to the other provisions herein contained this lease shall be for a terra of ten years from this date (called ‘primary term’) and as long thereafter as oil, gas or other mineral is produced from said land or land woth which said land is pooled hereunder.
******
“5. If operations for drilling are not commenced on land or on acreage pooled therewith as above provided on or before one year from this date the lease shall then terminate as to both parties unless on or before such anniversary date lessee shall pay or tender to lessor * * * the sum of two hundred forty four and no/100 dollars ($244.00) (herein called rental) which shall cover the privilege of deferring commencement of drilling operations for a period of twelve (12) months. In like manner and upon like payments or tenders annually the commencement of drilling operations may be further deferred for successive periods of twelve (12) months each during the primary term.
“6. * * * If at the expiration of the primary term, oil, gas or other mineral is not being produced on said land, or on acreage pooled therewith but lessee is then engaged in drilling or reworking operations thereon * *, the lease shall remain in force so long as operations are prosecuted with no cessation of more than sixty (60) consecutive days, and if they result in the production of oil, gas or other mineral so long thereafter as oil, gas or other mineral is produced from said land or acreage pooled therewith. * * * ”

Since the trial court filed no findings of fact or conclusions of law, the judgment implies all necessary fact findings in support of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

The primary term of the lease expired at midnight March 27, 1957, unless it has been extended as authorized by the terms of paragraphs 5 and 6 quoted above. Wheelock v. Batte, Tex.Civ.App., 225 S.W.2d 591, error ref., n. r. e.; Pitcock v. Johns, Tex.Civ.App., 326 S.W.2d 563, error ref. There is no contention that the delay rental was not properly paid on or before March 27, 1956. Such payment gave lessee the “privilege of deferring commencement of drilling operations for a period of twelve (12) months.” If, therefore, appellee commenced drilling operations on or before March 27, 1957, or on said date, as provided in paragraph 6, was “then engaged in drilling operations,” the lease did not terminate with the end of the primary term. The evidence shows that lessee engaged J. B. Ferguson, a drilling contractor, to drill a well on the leased land several days before the end of the primary term; that he employed a surveyor to stake a location for the well, who began his survey March 26, 1957, and staked the well location March 27, 1957. On March 27,1957, the employees of J. B. Ferguson moved a maintainer onto the lease and worked two hours leveling the well location. On the next two days a few hours’ work was done with the maintainer in draining the location. On March 30 a caterpillar was brought in and was used in leveling and draining the location that day and the next. On April 1, the caterpillar was used in constructing a road to the location. From the 1st of April through the 9th of April there was work on the road and location. On April 3 work was begun on moving a drilling rig onto the location. Work on the rig and drilling continued without interruption and resulted in the discovery of gas in paying quantities.

It is appellants’ contention that drilling operations could not “commence” until machinery capable of drilling an oil or gas well was placed on the lease. They rely on such cases as Woods v. Bost, Tex.Civ.App., 26 S.W.2d 299, writ dism.; Guleke v. Humble Oil & Refining Co., Tex.Civ.App., 126 S.W.2d 38; Street v. Masterson, Tex.Civ.App., 277 S.W. 407, writ dism.; Gilliland v. Kimbrough, Tex.Civ.App., 146 S.W.2d 1101; Witherspoon v. Staley, Tex.Civ.App., 156 S.W. 557, writ ref.; Jackson v. Anglin, Tex.Civ.App., 252 S.W. 1085, writ dism.; and Moore v. West, Tex.Civ.App., 239 S.W. 710, writ dism.

Appellees cite McCallister v. Texas Company, Tex.Civ.App., 223 S.W. 859, error ref.; Terry et al. v. Texas Company, Tex.Civ.App., 228 S.W. 1019; Wheelock v. Batte, supra; and Summers Oil and Gas, § 349, Vol. 2, pp. 459-460. We do not find the cases in conflict and think the rule deducible from an analysis of all the cases cited well stated in Summers, supra, as follows :

“The general rule seems to be that actual drilling is unnecessary, but that the location of wells, hauling lumber on the premises, erection of derricks, providing a water supply, moving machinery on the premises and similar acts preliminary to the beginning of the actual work of drilling, when performed with the bona fide intention to proceed thereafter with diligence toward the completion of the well, constitute a commencement or beginning of a well or drilling operations within the meaning of this clause of the lease.”

If drilling operations have “commenced,” as that term is used in paragraph 5, then lessee is “engaged in drilling operations.” Guleke v. Humble Oil & Refining Company, supra; Whelan v. R. Lacy, Inc., Tex.Civ.App., 251 S.W.2d 175, error ref., n. r. e. The record in this case supports the implied findings of the trial court that prior to the end of the primary term of the lease the lessee had set into motion the process of drilling a well, and that such acts preliminary to the actual work of drilling were performed with the bona fide intention of proceeding with diligence to the completion of the well. The lease did not terminate, as appellants contend, by reason of the failure of lessee to begin and prosecute required drilling operations.

A previous trial of this case ended in a mistrial when it was brought to the attention of the court that parties other than Robinson Oil Company and John V. Robinson should have been joined in the suit. The court’s action in terminating the previous trial and requiring additional parties to be impleaded is made the subject of a point on this appeal. Appellants also complain that the trial court erred in admitting into evidence certain written instruments offered by the impleaded defendants to prove their interest in the subject matter of the suit. The points do not present error. The parties impleaded claimed an interest in the outcome of the suit by reason of liens which they had acquired on the leasehold estate and the instruments to which objections were made were offered for the purpose of proving the liens.

In suits to cancel written instruments all persons whose rights would be affected by such a cancellation are necessary parties. Sharpe v. Landowners Oil Association, 127 Tex. 147, 92 S.W.2d 435; Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313. The mortgages were properly introduced into evidence to prove the interest of offeror in the subject matter of the suit. The objection made was that the instruments were executed after the date of the defaults which appellants relied on to terminate the lease. Even if they were erroneously admitted, no harm to appellants has been demonstrated, as required by Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    Karon SMITH, Appellant, v. WILSON COUNTY, Appellee.
    No. 13914.
    Court of Civil Appeals of Texas. San Antonio.
    March 21, 1962.
    Rehearing Denied April 18, 1962.
    Sam L. Harrison, San Antonio, for appellant.
    Clark Murray, Floresville, for appellee.
   POPE, Justice.

Wilson County obtained an injunction which commanded Karon Smith to remove two gates which she erected across a road. The injunction permanently enjoined those obstructions. The issue is whether from long use and public maintenance, the public has acquired rights in the road as a public road. The court so found, and the evidence supports the decree. Appellant has four points but has briefed only one of them.

The evidence shows the existence and use of the road since 1926. The road has been maintained and repaired by and at the expense of the County at least since 1942. Whether it was maintained by the County prior to that time is uncertain. The road has been fenced on both sides for more than twenty-five years, and had always been free of obstructions until defendant erected a fence and two gates across the road in 1958. The evidence shows that deeds to lands which front on the road have acknowledged and described the presence of the road. The deed from appellant’s grantor does this. The evidence supports the judgment. Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609; Phillips v. Texas & P. R. Co., Tex.Com.App., 296 S.W. 877; Click v. Lamar County, 79 Tex. 121, 14 S.W. 1048; McWhorter v. State, 43 Tex. 666; Weldon v. Quaite, Tex.Civ.App., 175 S.W. 2d 969; Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874; Hall v. Austin, 20 Tex.Civ.App. 59, 48 S.W. 53; Texas & P. R. Co. v. Kaufman County, 17 Tex.Civ.App. 251, 42 S.W. 586; 6 Tex.L.Rev. 365.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION v. Earnest E. MORRELL.
    No. 7118.
    Court of Civil Appeals of Texas. Amarillo.
    March 26, 1962.
    Rehearing Denied April 23, 1962.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Gordon, Gordon & Buzzard, Pampa, for appellee.
   CHAPMAN, Justice.

This is an appeal by Texas Employers’ Insurance Association from a judgment of the court below based on a jury verdict for Earnest E. Morrell in a workmen’s compensation case wherein he recovered maximum compensation for 401 weeks, but was denied a lump sum settlement. The injury from which recovery was allowed was a severe heart attack suffered on May 26, 1960 while appellee was in the course of his employment as a driller for J. M. Johnson Drilling Company supervising a drilling crew in the laying of matting boards in preparation for moving in a drilling rig. Becoming aggravated by mid-morning when it developed that the boards were still not level he began throwing around heavy, muddy, wet, 3 x 12 boards 7 or 8 feet long. Immediately following such violent physical exertion he slumped over, “turned white” and became violently ill. He was taken by one of the crew members to Coon Memorial Hospital in Dalhart, where he was administered to by Dr. Cunningham. On May 31, 1960 he was transferred to Highland General Hospital in Pampa, where he was treated by Dr. R. D. Falkenstein for 22 days in the hospital and up to the time of the trial at his home. Both doctors agreed he had sustained damage to his heart in the form of a posterior myocardial infarct.

The testimony developed the fact that appellee had suffered a back injury on September 6, 1959 and was off work approximately seven months as a result thereof. He compromised and settled his back injury claim with the insurance company for $5,500.00 while it was still pending with the Industrial Accident Board and had, in addition, been paid $955.00 in weekly compensation. He had returned to his usual work as a driller, the only work he had known during his adult life, on March 16, 1960 prior to settling his claim in May, 1960. The defense before us to the judgment rendered narrows itself to the question of whether any compensation recoverable by appellee is subject to be reduced on account of the prior compensable injury to the back, pursuant to Section 12c of Article 8306, Vernon’s Ann.Tex.St. The judgment is attacked from various approaches.

In its first two points appellant urges the insufficiency of the evidence to sustain full total and permanent benefits without reduction on account of the prior back injury, as against the insurance company’s contentions that the evidence was not sufficient to sustain the conclusion that the prior com-pensible injury did not contribute “in some part at least to the incapacity for which recovery was allowed.” Placed in the language of appellee’s brief, the insurance company contends “that if a man has ever sustained a partial permanent disability, he is thereafter, in the eyes of the law, only a part of a man and can never recover compensation for total disability for any period of time.”

Art. 8306, Sec. 12c of V.A.T.S. provides in part as follows:

“If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.” (Emphasis ours.)

Appellee testified in effect that the back bothered him a little, but not too much, and that he was making a hand in charge of a crew. The medical testimony is more than sufficient to sustain the jury’s finding that the incapacity from the heart attack would have been the same had there been no previous injury. It indicated that worry or stress could produce a heart attack and that back pain might be a contributing factor but assuming there was not any back pain at the time of the attack then the back injury was not a contributing factor to his heart attack or its symptoms. The evidence shows appellee had no pain from his back injury at the time of the heart injury, nor had he had any since. His treating physician testified:

“A. The injury to the heart does not have any relation or is not dependent on his back.
“Q. Well, how do you reason that, please?
“A. Well, as I stated before, severe pain or excitment or shock can cause a coronary occlusion, exertion and strain and so on. Since there was no pain, I have to say that that is not contributing, that the back is not contributing.
“Q. And what about his present disability, does the back contribute to that, please?
“A. No. As far as the heart is concerned, there is no connection.
“Q. Had he been a well man and not had any back injury, would the resulting disability be just the same?
“A. No, there is no connection there. This doesn’t have any influence on the state of his heart.”

Appellee had returned to his work on a trial basis after his back injury with the doctor’s consent. There is no showing in the record that he was working temporarily, that he had a benevolent employer who was using him as a gratuitous gesture or that he was working under the whip of economic necessity. Apparently he and his employer were satisfied with his performance because he worked several weeks before settling his back injury claim, and at the very time of his heart attack was performing very vigorous physical work without any back pain. Surely under this record it could not be said, in the face of all the medical testimony showing no connection, that the first injury contributed to the second as a matter of law. We believe the authorities do not sustain appellant’s contentions. Art. 8306, Sec. 12c, V.A.T.S.; Lumbermen’s Reciprocal Ass’n v. Coody et al., Tex.Civ.App., 278 S.W. 856 (N.W.H.); Texas Employers’ Insurance Association v. Swaim, Tex.Civ.App., 278 S.W.2d 600 (N.R.E.); Employers Reinsurance Corp. v. Wagner, Tex.Civ.App., 250 S.W.2d 420 (N.R.E.). Accordingly, the points are overruled.

Through points 4, 5 and 8 appellant asserts error in the court’s admission of the doctors’ testimony and counsel’s argument to the effect that the heart injury would have resulted even had there been no prior injury as distinguished from its theory asserted in point 3 to the effect that the back injury was a continuing incapacity and constituted a part of whatever incapacity ap-pellee had as a result of the heart injury. The association pleaded: “A prior com-pensable injury, to-wit, a back injury sustained about September of 1959, while in the employee of Service Drilling Company contributed to any incapacity plaintiff may have.” Their theory simply does not sustain appellant’s contention of error by the court in these respects and we feel what we have said in a discussion of points 1 and 2 is sufficient to dispose of the points here under consideration.

In its points 6 and 7 appellant complains of the method of submission of the court because of its theory asserted in point 3 shown above. Actually, the points simply approach the question from different angles.

Special Issue 16 inquired if the disability did not result solely from natural causes not contributed to nor aggravated by the claimed incident on which the suit was founded. Special Issue 17 asked the same question with the back injury in combination with the heart attack. Both were answered favorable to appellee. Then Special Issues 18 and 19 were asked as follows:

“SPECIAL ISSUE NUMBER 18:
“Do you find from a preponderance of the evidence that the incapacity, if any, that you have found, if any, in response to the foregoing special issues would have been the same had there been no prior injury?
“Answer ‘it would have been the same’ or ‘it would not have been the same.’
“Answer: It would have been the same.
“If you have answered the foregoing issue, ‘it would not have been the same,’ and in that event only, then answer the following special issue:
“SPECIAL ISSUE NUMBER 19:
“Find from a preponderance of the evidence the percentage of the incapacity, if any, that you have found, if any, in response to the foregoing issues, that would have resulted had there been no previous injury.
“Answer by stating in percentage, or ‘none.’
“Answer: -.”

The jury answered to Special Issue 18: “It would have been the same” [had there been no prior injury].

It is to be noted that Special Issue 18 as framed followed almost exactly the wording of the applicable clause in Sec. 12c of Art. 8306. The only difference was the substitution of the word “prior” for the word “previous”. The terms are synonymous as used. The statute provides the Association shall be liable “only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.” (Emphasis added). That is exactly the question asked in Special Issue 18 — -if the incapacity would have been the same "had there been no prior injury.” We believe the expression of Justice Holmes of the 5th Circuit in McGowen v. Pacific Employers Ins. Co., 205 F.2d 533, 534 answers very well the theory of appellant’s defense raised through its various approaches where he said: “An employee does not sell part of himself in accepting statutory payments for partial or temporary disabilities brought about by accidental injuries sustained in the course of his employment. Partial or temporary disability payments are made in lieu of wages lost through accidental injuries; and they are not accrued credits to be given the employer or insurance carrier of an employee who subsequently is totally and permanently disabled in * * * his employment.”

We believe this case was properly tried and the judgment is affirmed.


author: PALMORE, Judge.

text:
    C. W. MOORE, Appellant, v. LOCAL UNION NO. 89, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 13, 1962.
    As Modified on Denial of Rehearing May 4, 1962.

      John Young Brown, Louisville, for appellant.
    Ralph H. Logan, Louisville, Hardy, Logan & Tross, Newell N. Fowler, Memphis, Tenn., for appellees.
   PALMORE, Judge.

This injunction suit brought as a class action by a member of a labor union questions the right of the union and the plaintiff’s employer, Dealers Transport Company, to carry out the terms of a decision relating to job seniority rights. The decision in question was reached through the grievance procedure set forth in a contract between the union and the employer. The chancellor upheld the decision and denied relief.

Dealers Transport Company, of Memphis, Tennessee, and E & L Transport Company, of Detroit, Michigan, were competitors in the transportation of new automobiles and trucks from the Louisville assembly plant of the Ford Motor Company. With the development of multi-level or “piggy-back” railroad shipments they began to lose business, and Ford advised both companies that eventually there would be room for only one of them. Following discussions over a period of 1½ to 2 years it was agreed between Dealers and E & L that E & L would withdraw, leaving the Louisville field to Dealers. This arrangement does not involve the sale or transfer of any equipment, facilities, or other property, but an application has been made to the Interstate Commerce Commission for the transfer to Dealers of E & L’s authority to make “secondary” runs out of Louisville. For this transfer Dealers is to pay a nominal consideration covering the expense of the transaction. There was and is no agreement between the companies calling for a transfer of any employees from one to the other.

Because of the increased competition from both rail and water shippers, Dealers and E & L decided also that it would be advisable for each of them to retrench by drawing its operations closer to home. So, at the same time the application was made for a transfer of E & L’s secondary authority out of Louisville to Dealers, two other applications were submitted to the I.C.C., as follows: '

(1) To authorize the sale and transfer to E & L of Dealers’ initial authority out of Lorraine, Ohio, along with physical assets such as tractors, shop equipment, and terminal facilities there located.

(2) To authorize the sale and transfer to Dealers of E & L’s secondary authority to serve New Orleans and Shreveport, Louisiana, and Jackson, Mississippi.

It was emphasized in the testimony that each of these proposed transfers is separate, none being contingent on either of the others. All are pending before the I.C.C.

Most if not all of the labor forces at both Dealers and E & L are members of Local Union No. 89, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which in turn is “affiliated” with two autonomous but apparently interlocking organizations, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and the National Truckaway and Driveaway Conference. For convenience we shall refer to these three organizations as the Local Union, the International, and the National Conference.

The Teamsters Union, as it is commonly called, has represented the employees of E & L and its predecessors in business for over 20 years and has represented the Dealers employees since 1955 or 1956.- The National Conference, in behalf of its member local unions, is the exclusive representative of the employees for purposes of collective bargaining, and its standard contract for the period March 1, 1961, to February 29, 1964, printed in booklet form, has been separately executed by Dealers and by E & L. In each instance the agreement is signed by the Local, the National Conference, and the employer, but not by the International as such.

The standard contract secures job seniority rights to the employees. These rights are established, broadly speaking, on a terminal or local rather than a company-wide basis. For example, Article 4, Sec. 1, says: “Terminal seniority shall prevail at all times except as provided for in Article 4, Section 6, Subsection (b)2.” The latter subsection provides that if a branch or terminal is closed or partially closed and its work transferred to another branch or terminal an employee transferring from one to the other shall go to the bottom of the seniority board for purposes of job selection but shall exercise his company seniority for lay-off purposes and all other contract benefits. When a new branch or terminal is opened a new seniority board is established, and an employee who transfers to it from another location loses his seniority rights at the old terminal at the end of 2 years. (In the case of Dealers, which established its Louisville terminal in 1955, there was a special exception under which the first 50 employees transferring from Memphis were permitted, for some reason not disclosed in the record, to carry with them their original seniority dates.)

The standard contract (Article 7, Section 2) further provides a grievance procedure under which “disputes” shall first be taken up between the employer and the local union involved. On their failure to agree the dispute is taken before a “Local Joint Committee” composed of both union and management representatives. If this committee cannot resolve the controversy it may be appealed to a body called the Automobile Transporters Joint Conference Committee (hereinafter called the Detroit committee), which consists of both labor and industry-wide management representatives. When this panel is unable to agree the matter must be submitted to further arbitration.

Though E & L is still operating in Louisville, in August of 1961, when this controversy developed, a shift of business from E & L to Dealers obviously was taking place. As E & L began to drop its men employment at Dealers increased. Some of the E & L men were taken on by Dealers, but as the layoffs at E & L accelerated it was inevitable that there would be no room at Dealers for any more. Then it was that two of the former employees of E & L filed with the Local Union a grievance claiming that they and other displaced employees of E & L were entitled to employment by Dealers through a merger of the respective seniority lists of the two companies.

Without taking the question up with Dealers (thereby omitting the first step in the grievance procedure), the Local Union submitted it to the Local Joint Committee, where, at the recommendation of one of its members, Paul Priddy, president of the Local Union, it was “deadlocked,” meaning that the Local Joint Committee decided to pass the problem to the Detroit committee for solution. The Dealers employees were disturbed at this turn of events, but their apprehensions were allayed by assurances from Mr. Priddy’s assistant that they were protected by their terminal seniority rights and were not in any trouble. Three of these men attended the Detroit hearing, where they expected their interests to be represented and upheld by Mr. Priddy. But, like the innocent little oysters who took the famous walk with the walrus, they were mistaken, for, according to the testimony of Dealers’ personnel manager, when Mr. Priddy had suggested to the Local Joint Committee that the grievance be “deadlocked” and sent to Detroit he remarked “that he knew Mr. Hoffa’s thinking on matters of this nature and that these men were going to be sandwiched in.” (Mr. Hoffa was president of the International, chairman of the National Conference, and chairman of the Detroit committee.)

When the grievance was called on the docket of cases being heard before the Detroit committee, Mr. Priddy, who also was one of the members of that tribunal, vacated the bench, as was customary for the committee members to do when their own cases were involved. At this time he informed the three Dealers employees, to their surprise and consternation, that he was going to take a stand in favor of merging the Dealers and E & L seniority boards. Representing the Local Union, he thereupon proceeded to state the grievance to the Detroit committee and successfully recommend its solution on that basis. The decision of the Detroit committee, announced a few days after the hearing, was to the effect that the seniority registers of Dealers and E & L at Louisville were to be merged within 30 days.

E & L’s Louisville terminal evidently is older than that of Dealers, which was established in 1955. This means that by and large the E & L employees will have greater seniority in the event the merger of seniority boards stands. For example, even with the right of the first 50 Dealers men who came from Memphis in 1955 to retain their original. Memphis hire-in dates, out of the first 200 men listed on the new board only 58 will be Dealers men. As a result, on November 25, 1961, just before this suit was filed, Dealers laid off 96 of its Louisville employees who were displaced by former employees of E & L.

The decision of the Detroit committee is being attacked in this case upon the ground that it is so unjust as to imply fraud, or, to put it another way, that it is arbitrary and therefore subject to judicial inquiry and disposition. Specifically, the court is asked to enjoin- the Local Union, the International (though it was not, as such, a party either to the contract-or the grievance proceedings), and Dealers from carrying into effect the'decision of the -Detroit committee. Affected E & L' employees were made defendants by amendment.

The question has been raised as to the amenability of International to process through service on the president of its affiliated Local Union. Since, however, International was not a party to the contract or the grievance proceeding we believe its connection with the controversy is insufficient to warrant any relief against it. Hence the judgment of dismissal as to International was correct and it is unnecessary to consider the jurisdictional point.

Appellant and his fellow-employees of Dealers rely heavily on one of the provisions of a special rider attached to the contract between Dealers and the Local Union. It reads as follows:

“The Louisville domiciled employees of the Employer shall have exclusive rights to all work originating at the Louisville Terminal.”

This provision, or its progenitor, grew out of a controversy in Memphis in 1955, when the Memphis employees, during a slack period, sought to displace drivers of loads passing through Memphis from other points of origin. We agree with the chancellor that it is not dispositive of the problem that arose in this case. The real question was whether the E & L drivers are entitled to be employees of Dealers, and the Detroit committee ruled, in effect, that they were. If that is correct, then the rider provision had no more application to their employment than it would have to the hiring of a new employee from any other source.

The contract provision (Article 4, Section 5) on which the Detroit committee based its ruling to the effect that the E & L employees are entitled to employment by Dealers reads as follows:

“In the event that the Employer absorbs the ■ business of another private, contract or- common carrier, or is a party to a merger of lines, the seniority of the employees absorbed" or 'a-ffected thereby shall be determined by mutual agreement between the employer and the Unions involved. Any controversy with respect to such matter shall be submitted to the joint grievance procedure.”

It is the theory of the E & L employees that the transfer to Dealers of E & L’s secondary runs out of Louisville constitutes an absorption of business and that under this clause Dealers is required to absorb the affected employees as well as the business. We cannot find any such meaning in the clause. It deals only with seniority, and not with initial employment. Unless and until the absorbing company agrees to take the employees of the company whose business is being absorbed no seniority problem is created, hence this provision of the contract can have no application. It does not require that the absorbing company take these employees, but only that if it does take them the question of seniority between the old and new employees will be worked out by agreement or else be submitted to the grievance procedure.

It must be remembered that even though Dealers and E & L have signed practically identical contracts with the same union, still they are separate agreements. These two employers, their respective employees, and the union are not all one big happy family living under the same tent. As we see it, the displaced E & L employees can have no greater right to employment by Dealers than they would possess if they belonged to a different union, or to no union at all. Note, for example, that the contractual provision just quoted mentions ■“the Unions involved.” (Emphasis added.) Suppose that the E & L men were represented by a different union. Would they have any rights under this contract between Dealers and another collective bargaining agent? Surely not. Nor would it be possible for them to initiate a grievance ■directed toward a company with which they .had never enjoyed an employer-employee relationship. They are strangers to the Dealers contract, and it was not made for their benefit.

Since Article 4, Section 5, had no application under the circumstances of this case we are of the opinion that the question was not arbitrable under the grievance procedure. Arbitrability is an issue of law, which may be determined judicially. See discussion in Harbison-Walker Refrac. Co. v. United Brick & C. Wkrs., Ky.1960, 339 S.W.2d 933. But even if it were otherwise, we find the decision of the Detroit committee to be so erroneous, and made under such circumstances, that it was arbitrary.

Before proceeding further let us clarify the position of Dealers, the employer, in this matter. It is neutral. Its relations with its employees have been highly satisfactory, and the year ending July 1, 1961, was its best year to date for efficiency as to accidents, cargo-damage, and the like. It has recognized all along that the real controversy here was within the union itself. It feels bound to honor the contract and the ‘‘decisions of all agents to the employees who legally work for us.” At Detroit it took the position that it was up to the union to decide what to do with the employees. In its November 25 letters to the 96 displaced employees it specifically advised them that their dismissal was “necessary due to Union action whereby the decision was rendered” by the Detroit committee requiring absorption of the E & L seniority list. It seems clear that Dealers was scarcely a real party in interest to the grievance proceeding. The actual antagonists were the E & L men on the one hand and the Dealers men on the other, all union members.

Representing these two antagonistic interests was the same union. It is useless to say that the union did not “represent” anyone in the grievance proceeding. Common sense verifies the testimony in this case to the effect that the men looked to and depended on their union officials to espouse their "rights. Otherwise, what legitimate business does a union have'in such a proceeding ? It would be equally unrealistic to hold that the Dealers employees had representation before the Detroit committee through the presence of three of their number who made the trip with Mr. Priddy and his assistant. As one of them said, he was only a shop steward and was not prepared or qualified to make a presentation to the national grievance panel. So we have a situation in which two antagonistic interests were represented by the same advocate. This of itself is enough to destroy the traditional presumption in favor of an arbitration award. Moreover, we cannot overlook the fact that even the advocate must have had an interest of its own, in that the power and influence of the union stood to be enhanced by a decision permitting the employment and seniority of its members to cut horizontally across company lines. Under these particular circumstances the solution of the controversy under cloak of a spurious “grievance” against a virtually disinterested employer simply will not bear careful scrutiny, and when we view the erroneous decision of the Detroit committee against such a background we judge it as having been arbitrary and violative of natural justice. Any other conclusion would reduce these employees to the status of pawns instead of free men. So, even though it be considered that the Detroit ruling was made pursuant to Article 7, Section 2(d) of the contract, providing for arbitration of all questions of contract interpretation, it still cannot stand. This result is not in conflict but is consistent with the principles stated in Smith v. Hillerich & Bradsby Co., Ky.1952, 253 S.W.2d 629.

The most difficult question in this case is whether the complaint of the suing employee is within the exclusive jurisdiction of the National Labor Relations Board.

Section 10(a) of the Taft-Hartley Act, 61 Stat. 146 (1947), 29 U.S.C.A. § 160(a), empowers the NLRB “to prevent any person from engaging in an unfair labor practice * * * affecting commerce,” subject to certain exceptions. Unfair labor practices are defined in Section 8 of the Act, 29 U.S. C.A. § 158. An examination of the latter section convinces us that the controversy in this case does not involve an unfair labor practice. Section 8(b) (2) makes it an unfair labor practice for a union “to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3).” However, the latter subsection is confined to discrimination the purpose of which is “to * * * discourage membership in any labor organization.” Obviously, this is not such a case. Whatever may have been the end result of the actions of the union and the employer, they were not motivated by any of the illicit objects and designs set forth in Section 8 of the Act as constituents of an unfair labor practice. As we see it, what we have here is not a labor dispute, but simply an action to construe and enforce a contract under which the complaining employee and' his fellows have certain rights of tenure. By entertaining that action the courts of this state neither intend nor claim to exercise any jurisdiction in the field of national labor policy, which has been delegated by Congress exclusively to the NLRB. We find inferential support in that Congress has expressly authorized the federal courts to adjudicate suits for violation of labor contracts (29 U.S.C.A. § 185), which means that the enforcement of a contract is not within the ken of the NLRB merely because it involves a labor problem.

We recognize that if an activity is “arguably” subject to the Act “the States as well as the federal courts must defer to the exclusive competence” of the NLRB. San Diego Building Trades Council Millmen’s Union v. Garmon, 1959, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775. However, we are not convinced that the question in this case is reasonably arguable.

Insofar as it dismissed the action against the International union the judgment is-affirmed. Otherwise it is reversed with directions that a judgment be entered in accordance with this opinion.

MOREMEN and WILLIAMS, JJ., dissenting.


author: MONTGOMERY, Judge. MILLIKEN, Judge

text:
    GATEWAY CONSTRUCTION COMPANY, Appellant, v. Edward WALLBAUM et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.
    As Modified on Denial of Rehearing May 4, 1962.
    William Mellor, Louisville, for appellant.
    Wilton R. Long, Jr., Louisville, for ap-pellees.
   MONTGOMERY, Judge.

Gateway Construction Company appeals from a judgment sustaining an award of the Workmen’s Compensation Board in favor of Edward Wallbaum. Gateway had a contract to alter and repair a dwelling in Louisville. It had a subcontract with John G. Straub to do the roofing work. On June 6, 1960, while working for Straub on the job, Wallbaum fell from a ladder and was injured.

The latter sought to recover benefits under the Act against Gateway. It is asserted in Wallbaum’s brief that the proceeding was instituted jointly against Gateway and Straub, but this is not shown by the record.

Gateway had accepted the provisions of the Workmen’s Compensation Act. Straub had two employees, one of whom was Wall-baum. Under KIRS 342.005(2), in effect on the date of the injury, the only way an employer having less than three employees and his employees could have come under the Act was by joint voluntary application in writing to the Board. No such application had been made by Straub and Wall-baum.

Further, the employer-employee relationship between Straub and Wallbaum arose from a contract for hire. There is no such contract or relationship shown between Wallbaum and Gateway. KRS 342.-395 provides that the election of the employer to operate under the Act carries with it “as a part of his contract of hiring” a corresponding acceptance by the employee. The absence of any contract for hire between Wallbaum and Gateway closes that avenue of relief under KRS 342.395. The claimant has the burden of showing coverage under the Act. Collier v. Wright, Ky., 340 S.W.2d 597.

Wallbaum, therefore, insists that he is a so-called “statutory employee” of Gateway, the principal contractor, under KRS 342.-060, referred to as a “contractor-under” statute. The sole question presented is whether an injured employee of a subcontractor can recover workmen’s compensation under KRS 342.060 against the principal contractor where the principal contractor had elected to be covered by the Workmen’s Compensation Act but where neither the subcontractor nor his injured employee had so elected.

The effect of KRS 342.060 of the Act is involved. KRS 342.060 follows:

“A principal contractor, intermediate or subcontractor shall be liable for compensation to any employe injured while in the employ of any one of his intermediate or subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer. Any principal, intermediate or subcontractor who pays such compensation may recover the amount paid from any subordinate contractor through whom he has been rendered liable under this section. Every claim to compensation under this section shall in the first instance be presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employe’s rights to recover compensation under this chapter from the principal or intermediate contractor. The collection of full compensation from one employer shall bar recovery by the employe against any other. But he shall not collect from all a total compensation in excess of the amount for which his immediate employer is liable. This section shall apply only in cases where the injury occurred on, in or about the premises on which the principal contractor has undertaken to execute work or which are under his control otherwise or management.”

The question presented is one of law on which the employee is entitled to a liberal construction. KRS 342.004; Dick v. International Harvester Company, Ky., 310 S.W.2d 514. However, it is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there. Arduini v. General Ice Cream Company, 123 Conn. 43, 192 A. 314, 114 A.L.R. 1333; Doherty’s Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576. The humane spirit of the statute does not warrant its extension beyond its legitimate scope. 58 Am.Jur., Workmen’s Compensation, Section 27, page 597.

Statutory law has been held to be an expression of the intention of the Legislature. To interpret a statute, the common rule is to ascertain and determine the legislative intent. Hopkins v. Dickens, 188 Ky. 368, 222 S.W. 101. It should be pointed out, however, that legislative intent is at best a nebulous will-o’-the-wisp. Far better it is to be guided by the old adage, “Plain words are easiest understood.”

The best way in most cases to ascertain such intent or to determine the meaning of a statute is to look to the language used, hut no intention must be read into the statute not justified by the language. Bohannon v. City of Louisville, 193 Ky. 276, 235 S.W. 750. The primary rule is to ascertain the intention from the words employed in enacting the statute and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R. R. Co., 144 Ky. 646, 139 S.W. 854; Goodpaster v. United States Mortgage Bond Co., 174 Ky. 284, 192 S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to he given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F.Supp. 915; Thompson v. Bracken County, Ky., 294 S.W .2d 943.

The language of KRS 342.060 contains usual, ordinary, everyday words. It is plain and free of ambiguity. The entire statute indicates that a liability against the principal contractor and in favor of the subcontractor’s employee is created which is dependent on the determination of the amount of the claim awarded in a proceeding against the immediate employer. This proceeding is a condition precedent to liability on the part of the principal contractor.

The language of the statute expressly provides that “Every claim * * * shall in the first instance be presented to and instituted against the immediate employer * * The liability of the principal contractor is limited “to the same extent as the immediate employer.” The liability of the latter must be determined first. The total compensation that may be recovered by the employee is further limited to the amount of compensation for which the immediate employer has been held liable. A right of recovery is given the principal contractor against the immediate contractor in case the latter has failed to satisfy the award. All of the language used in the statute, when given its usual meaning, indicates a legislative intent to require a proceeding against the immediate contractor first and that no award is authorized against the principal contractor until and after the proceeding against the immediate contractor. Inasmuch as Wallbaum has never proceeded against Straub, his immediate employer, (in fact he could not do so validly) and has proceeded directly against Gateway, the principal contractor, he has done so erroneously. See Industrial Commission v. Everett, 180 Ohio St. 369, 140 N.E. 767; Keeling v. Schuman Brothers Lumber Company, 204 Okl. 277, 229 P.2d 193; Doherty’s Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576.

Wallbaum relies on Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, wherein it was assumed that the employee of the subcontractor had elected to accept the Workmen’s Compensation Act. The language of the Tennessee Act is dissimilar and the construction given it is questionable. Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691, cited as following the Tennessee case, was decided on a question of whether there was sufficient evidence to sustain the Board’s finding of fact. The latter portion of the opinion devoted to the “contractor-under” statute may be considered as dictum and not binding since a majority of that court did not agree with it. The reliance of Wallbaum on DeLonjay v. Hartford Accident & Indemnity Company, 225 Mo.App. 35, 35 S.W.2d 911, and Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, is not justified since the Missouri statute deals with primary and secondary liability in a manner not embraced in KRS 342.060.

Accordingly, it is felt that a liberal construction of the statute does not justify a construction in derogation of its plain language. Western & Southern Life Insurance Company v. Weber, 183 Ky. 32, 209 S.W. 716; Clark v. Riehl, 313 Ky. 142, 230 S.W.2d 626; Meyers v. Walter, Ky., 253 S.W.2d 595; Bedinger v. Graybill’s Ex’r and Trustee, Ky., 302 S.W.2d 594.

Judgment reversed.

STEWART, C. J., and MILLIKEN, J., dissent.

MILLIKEN, Judge

(dissenting).

My difference with the majority opinion is a basic attitude toward statutory construction. Instead of worrying about whether we as a court were dotting some of the “i’s” and crossing some of the “t’s” left undotted and uncrossed by the Legislature, I would ask the purpose of the legislation —what did the Legislature want to do, and would then pursue a course calculated to effectuate what I thought the Legislature sought to accomplish. Such an approach is especially practicable in the field of social legislation such as the Workmen’s Compensation law and in the field of public administration generally, for inability to foresee all of the ramifications of the various fields affected is the very reason for the creation of boards of specialists by the Legislature.

The obvious purpose of the section of the Workmen’s Compensation Act involved here is to protect the employees of subcontractors, who are not financially responsible, when they work on a project supervised by a general contractor who has his own employees protected by Workmen’s Compensation and, corelatively, to prevent general contractors from relieving themselves of liability for compensation by doing through uncovered subcontractors what the general contractor would otherwise do directly through his own protected employees. The section declares “[it] shall apply only in cases where the injury occurred on, in or about the premises on which the principal contractor has undertaken to execute work or which are under his control otherwise or management,” thus impliedly reflecting the legislative intent to protect all of the workmen on such a job if the general contractor was protected by his acceptance of the Act from ordinary common law liability. Unless that is. the overall purpose of the legislation, it has little reason to be in the Workmen’s. Compensation law. We are not the only state with analogous statutes to contend with.

Statutory provisions with the same purpose as the one here involved may be found' in the Workmen’s Compensation laws of most of the states. According to Larson, Workmen’s Compensation Law, Sec. 49.111

“Thirty-nine states have adopted ‘contractor-under’ statutes, imposing on the general employer compensation liability (sometimes joint, sometimes primary, but usually secondary) to the employees of contractors (in most instances uninsured contractors) under him. It has become quite common to speak of the liability so created as that of the ‘statutory employer’ to a ‘statutory employee.’ This terminology is the most convenient yet devised for this new concept, and will be used Ihere, with the caution that it is inaccurate and misleading' in those states which regard the general employer merely as a sort of guarantor or insurer, having none of the immunities, such as immunity from common-law •suit, that go with employer status.
“The purpose of this legislation was •to protect employees of irresponsible •and uninsured subcontractors by im■posing ultimate liability on the pre•sumably responsible principal contrac■•tor, who has it within his power, in -choosing subcontractors, to pass upon their responsibility and insist upon appropriate compensation protection for their workers. The statute also aims to forestall evasion of the act by those •who might be tempted to subdivide their regular operations among sub■contractors, thus escaping direct employment relations with the workers •and relegating them for compensation protection to small contractors who fail to carry (and, if small enough, may not even be required to carry) compensation insurance.”

Could there be any better example of the need for legislation with this purpose than the case at bar?

The general contractor here contends that it cannot be liable until a claim “shall in the first instance be presented to and instituted against the immediate contractor” which procedure would, of couse, be futile in the present case because the immediate contractor was not covered by the Act. The general contractor contends that any liability it may have is secondary, not primary. In DeLonjay v. Hartford Accident & Indemnity Company, 225 Mo.App. 35, 35 S.W.2d 911, the Court said:

“ * * * The cause does not say that the immediate employer must be liable to the employee under the act in order to make the principal contractor liable to the employee. * * * If the principal contractor does not have recourse (against the immediate contractor) in every case, it is because of a situation which the contractor itself has created by subcontracting with a minor employer who does not accept, and is therefore not subject to the provisions of the Act. Of this the contractor has no right to complain. The most that can be said of the clause in question is that it introduces ambiguity, and under the rule of liberal construction, this must be resolved in favor of the right of the employee to compensation. Surely, it does not justify interpolating into the act language which the Legislature did not see fit to put in it.”

And in Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, in approving the DeLonjay case, the Missouri Supreme Court said:

“Even if they (the principal contractor) cannot recover over against a minor employer not subject to the act, yet it must be kept in mind that the act is purely elective as to all major employers * * * and such major employers may protect themselves by requiring the subcontractors, whether major or minor employers, to insure their employees.”

The Missouri opinions above adhere to the intention of such legislation. Regardless of any difference in wording between their comparable statute and ours, the very questions raised in the case at bar were raised there and disposed of on the basis of reasoning — of looking to the intention of the statute, and, consequently, concluding to protect the injured worker — the principal overall purpose of Workmen’s Compensation legislation. In 1935 Tennessee reached the same conclusion under a greatly similar statute, Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564; and North Carolina in Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691. See, also, annotation in 105 A.L.R. 581 et seq.

For the reasons stated I dissent from the majority view, and would also allow recovery.

STEWART, C. J., concurs in this dissent.