text:
    Cecil ASHCRAFT, Appellant, v. CAPCO-DELUXE GENERATOR COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 7, 1964
    Rehearing Denied April 17,1964

      James A. Nolan, Ware, Bryson & Nolan, Covington, for appellant.
    Harry K. Aurandt, Covington, for appel-lees.
   DAVIS, Commissioner.

This appeal from the Kenton Circuit Court arises under the Workmen’s Compensation statutes and presents unique facts. The understanding of the questions involved depends upon grasp of the series of incidents from which the controversy stems. The incidents occurred in this chronological order:

Appellant, Ashcraft, sustained a com-pensable injury on March 2, 1961, while at work for appellee company.

On June 20, 1961, a compensation agreement between appellant and appellee was examined and approved by the Workmen’s Compensation Board. The agreement was on the standard S.F. 4 form provided by the Board. The form agreement contained, among others, these two pertinent provisions : “Probable length of disability 3-6 weeks”; and, “That the said Cecil Ash-craft shall receive compensation at the rate of $35.10 per week based upon an average weekly wage of $54.00 and that said compensation shall be payable from and including the 6th day of March, 1961, until terminated in accordance with the provisions of the Workmen’s Compensation Law of the State of Kentucky.”

The appellee employer paid the prescribed $35.10 for eight weeks, to and including May 12, 1961, at which time payments were discontinued, and the appellant resumed his regular duties working for appellee at the full rate of pay he had drawn prior to the accident.

On May 4, 1962, the present appellant filed proceedings in Kenton Circuit Court, pursuant to KRS 342.305, seeking judgment for $2,000.70. The action was founded on the claim that the compensation agreement was equivalent to an award by the Board, and that it had not been terminated, so payments at the rate of $35.10 per week had accrued for the benefit of Ashcraft for the 57 weeks since the last payment had been made on May 12, 1961.

On July 27, 1962, there was entered in the Kenton Circuit Court a judgment which denied the relief sought by Ashcraft. No appeal was taken from that judgment.

In November, 1962, Ashcraft moved the Compensation Board to reopen the award, but the Board denied that motion on the theory that there was nothing to reopen, inasmuch as there had never been a Board order terminating the agreed compensation under the S.F. 4 agreement.

On February 28, 1963, the appellee employer filed its motion with the Board seeking to have the claim reopened on the grounds of mistake, fraud and change of condition. This motion was overruled by the Board for the stated reason that there was inadequate showing of changed conditions. KRS 342.125.

The employer then appealed to the Kenton Circuit Court from the Board’s ruling on its motion; that procedure was filed April 24, 1963. In the same proceeding (from which the instant appeal arises) the present appellant filed counterclaim seeking to recover $l,825.00.

The Kenton Circuit Court rendered summary judgment July 16, 1963, dismissing the counterclaim of the employee. It is from that judgment that this appeal has been granted under KRS 21.080.

The appellant maintains that the judgment should be reversed on the theory that the compensation agreement had the effect of an award of the Board, and that it remains in full force until officially terminated by order of the Board. In support of that contention our attention is directed to three decisions of this court: Katterjohn v. Adams, Ky., 249 S.W.2d 952; Cornwell v. Commonwealth, 304 Ky. 182, 200 S.W.2d 286; and Lester Gregory v. Louisville Transit & Transfer Co., Ky., 356 S.W.2d 760.

The appellee concedes that the cases just cited do afford authority for the principle urged by appellant, but contends that the case at bar is distinguishable from those cited, and that the claim of appellant is foreclosed by the rules of res judicata.

In our view res judicata is determinative of this case. It is undisputed that the Kenton Circuit Court had jurisdiction of the parties and the subject matter of the first suit wherein Ashcraft sought recovery of $2,000.70. The sole basis upon which Ashcraft could predicate recovery in that action was the continuing validity of the compensation agreement to pay $35.10 weekly. The effect of the circuit court’s judgment was to judicially determine — to adjudicate — that Ashcraft had no legally extant compensation award entitling him to recover any sum.

The Kenton Circuit Court judgment attained unchallenged finality by Ashcraft’s failure to appeal from it. Thus,- the pivotal question as to whether Ashcraft has a legal compensation award in this situation is no longer open as between him and the appellee. It is res judicata. Ashcraft had only one cause of action • that was the compensation agreement. He may not re-litigate the question as to whether that cause of action now exists. The wellspring of his right to have money was the compensation agreement; it was found to be dehydrated by the first judgment. Nothing that has occurred since the judgment serves to replenish that withered fountain. See Vaughn’s Adm’r v. L. & N. R. Co, 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060, and 30A Am.Jur, Judgments, § 363, p. 403, et seq.

The judgment is affirmed.

      . The counterclaim sought $1,825.00 as the amount due from May 4, 1962, to April 30, 1963, plus 6% interest on past due installments, plus $35.10 per week thereafter for the compensable period, or until the compensation agreement is terminated by the Board.


source: Caselaw Access Project

author: MOREMEN, Judge.

license: Public Domain

text:
    Clifton Pratt SHELTON, Appellant, v. WEBSTER COUNTY SOIL CONSERVATION DISTRICT et al., Appellees. WEBSTER COUNTY SOIL CONSERVATION DISTRICT et al., Appellants, v. Glenn WATSON, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    Itehearings Denied April 17, 1964.

      Dorsey & Sullivan, Henderson, Warren B. Miller, Dixon, for Webster County Soil Conservation Dist. and others.
    Damon A. Vaughn, Dixon, for Clifton Pratt Shelton and Glenn Watson. - .
   MOREMEN, Judge.

The above styled cases have been consolidated for hearing in this Court. The questions presented in each suit are not’ identical, but under the peculiar circumstances a decision in the second case will render answering the question in the first case unnecessary.

Appellee Watson instituted an action for_ a declaratory judgment to construe KRS 262.700 et sequitur which deal with Watershed Conservancy Districts.

On March 9, 1957, the Crab Orchard Creek Watershed Conservancy District was formed. (Hereinafter referred to as Watershed District.) A watershed conservancy district is a sub-district of county soil conservation districts.: The statute provides that if the watershed lies in more than one county, it may be organized under the soil conservation districts of thos.e. counties and is to be governed by a joint, board of supervisors of the county districts.

In 1960 the Watershed District levied a, tax. Thereafter the legality of the creation, of the Watershed District was attacked in. a suit styled Noah Dixon Watson,vs. Web-, ster County Soil Conservation District. That suit resulted in a judgment confirming ■ the legality of the formation of the Watershed District and the judgment was affirmed upon appeal to this Court. Thereafter the constitutionality of Chapter 262 was attacked by Clifton Shelton. About a month later Glenn Watson also filed a suit which concerned the problem of whether the District should be discontinued under the terms of the statute. The trial court sustained the constitutionality of the statute in the first suit, but decided in the second suit that a referendum should be held in connection with the discontinuance of the Watershed District. These are the two above styled actions which are being heard together.

The petition for discontinuance of the Watershed District was filed with-the.sejbp retary of the Webster Comity Board of Supervisors of the Soil Conservation District on March 9, 1962. Those seeking to dissolve the Watershed District proceeded under KRS 262.790. It provides as follows:

“(1) At any time after five years from the organization of a watershed conservancy district, twenty-five or more landowners within a district, or, if less than fifty landowners are involved, a majority of the landowners in such district, may file a petition with the board of supervisors, praying that the existence of the district be discontinued. The petition shall state the reasons for discontinuance, and that all obligations of the district have been met.
“(2) After giving notice as defined in KRS 262.010(4), the board of supervisors may conduct such hearings on the petition as may be necessary to assist it in making a determination.
“(3) Within sixty days after petition is filed, a referendum shall be held under the supervision of the board of supervisors as provided in KRS 262.750. No informalities in the conduct of the referendum or in any matters relating to the referendum shall invalidate it or its result if notice of the referendum has been given substantially as provided in subsection (2) of this section.
“(4) If a majority of the votes cast in such referendum favor the discontinuance of the district, and it is found that all the obligations have been met, the board of supervisors shall make a determination that the watershed conservancy district shall be discontinued. A copy of the determination shall be certified to the clerk of the county or counties involved, for recording. After recording, the certification shall be filed with the State Soil Conservation Committee.”

The petition was signed by 276 people. It stated that the signers were landowners within the Watershed District; that a majority of the landowners in the Watershed District desired to discontinue it; that all the obligations of the Watershed District, within the meaning of subsection (1) of KRS 262.790, had been met. The petition prayed that the Watershed District be discontinued.

It may be noted from the above quoted statute that subsection (2) provides that after the presentation of a petition for discontinuance the Board of Supervisors may conduct such hearing as may be necessary to assist it in making a determination: As the trial court queried, "a determination of what”? However, the Board of Supervisors did hold a hearing under the section and determined, as reflected by the minutes of the meeting, that in light of numerous obligations of the Watershed District “the petition was not in order and the district could not possibly be dissolved.” Some of the obligations, according to the Board, resulted from possible liabilities on the supersedeas bond in condemnation cases, costs in said cases, commissioners’ fees, attorneys’ fees, and other record fees and court costs. Other obligations existed in favor of the United States Government under a work plan. In addition, these reasons for dismissal of the petition were stated in the minutes:

“It was pointed out that the operation of Crab Orchard Creek Watershed Conservancy District had previously been determined to be administratively practical and feasible and was even more so at this time. Further, that there was no other statute or statutes under which the objectives of the Conservancy District could be accomplished; and that, although no detailed investigation had been undertaken of sentiment within the District, it appeared highly doubtful that a majority of the landowners in the District desired to have it discontinued.”

The Board of Supervisors decided that it would not hold the referendum provided for by the statute and this action followed. After trial the court entered a judgment ordering the Board to call and hold a referendum. Appellants argue that the court erred in ordering the referendum because (1)the District’s obligations had not been met as required by the statute and (2) the landowners did not state their reasons for wanting a discontinuance as required by the first subsection of the statute.

It is insisted by appellants that the word “obligations” means more than financial obligations and includes actions and operations which a District has agreed to perform in its work plan. It is argued that because the word “financial” is not used anywhere in the statute, the word “obligations” cannot be so limited. Stress is also placed upon the wording that “all the obligations have been met,” and it is contended that “have been met” may not be construed to mean “can be met.” Thus a petition could not be filed properly until all financial obligations of the District actually had been discharged.

In a written opinion the trial court carefully analyzed this statute and correctly applied its terms to the facts presented. We adopt the following portion as the opinion of this Court:

“In order to construe any one section of this statute in an attempt to determine its meaning we must consider it in relation to the entire section, and we must admit that this section is difficult of interpretation.
“The basic problem is in determining whether or not the board shall call the election in any event or shall it call it only after and in the event it determines it has met all of its obligations.
“Subsection 2 provides that the board may conduct such hearings on the petition as rrjay be necessary to assist it in making a determination. The question is, ‘a determination of what?’ Must the board make a determination that the reasons for wanting a termination are reasonable and that its obligations have been met? There is nothing in this section that' gives any in- ■ dication of the purpose of the section.
“Then subsection 3 says the board shall conduct the referendum. There is no language in the section qualifying this mandate that the referendum shall be held only in the event the board determines all the obligations have been met or that the reasons are reasonable.
“Then subsection 4 complicates the issue further by stating that if a majority of the votes cast favor the discontinuance and it is found that all obligations of the district have been met, the board shall then make a determination that the district be discontinued. This might lead one to believe that the vote would come first and if the vote was in favor of discontinuance, then there must be a determination that the obligations have been met before the district could be discontinued. This seems to be an unrealistic interpretation of this section. The. most difficult, costly and time consuming step in the procedure would be calling and holding the referendum and it would be foolish to go through this procedure only to find that the obligations have not been met and the results of the referendum nullified. The more sensible interpretation of this section, it seems to the Court, would be that if the board determines that the - obligations have been met, then and only then must the referendum be called.
“It is argued that not only must' the proponents show that the obligations have been met but also must allege and prove the reasons for the desired termination. The Court cannot agree with this interpretation. The only mention of the reasons is contained in the section requiring the petition to the board to state the reasons. I don’t think the Board has any discretion in determining the soundness of the reasons. This is very evident from subsection 4, which sets as the only condition for the calling of the referendum that the obligations have been met.
“We then come to the question of whether the obligations have been' met and what is meant by obligations. ■!> think the only obligations that the Legislature is referring to are financial obligations. Otherwise the section is meaningless and no discontinuance could ever be had because in operating the district there is a continual .and eternal obligation of up-keep. We know this from our experience with the public drainage ditches and the structure under this program would no doubt require even more upkeep than the drainage ditch situation.
“The proof shows that cash on hand in the treasury of the district is ■$10,283.93. There are condemnation proceedings now pending, together with attorney fees and court costs which would in all probability take up or exceed the amount •on hand. However, the obligation to pay for the land sought to be condemned does not become vested until the district receives title to the land and takes possession and this had not been done as of the •date of the filing of the petition and has not yet been done and there is no binding ■obligation on the part of the district to take the land. The condemnor can dismiss its petition for condemnation at any time before receiving title to the land and taking possession. This being so, the only obligations which are binding on this fund are the attorney fees and court costs and the fund is more than ample to provide for these obligations.
“It is the Court’s personal belief that these Conservancy Districts and the whole soil conservation program are of .•great benefit to the people and I believe that there is a great need for this program; "however, this program, like any program, to be successful, must have the support of the majority of those involved. If it does -not it is doomed to failure. The Legislature has set up the provisions for determining the feeling of the people and any dissenters are entitled to have their vote. It •is my opinion that the Board of Supervisors shall call this election and further, I 'am holding Counsel for the plaintiff to his offer in.his brief in one of the related suits, to dismiss with prejudice all other actions now pending against the Board and District by the dissenters as soon as the election is called.”

It will be noted that in the last sentence of the foregoing quotation, the court refers to other cases then pending. One is the Clifton Shelton case which appears in the caption to this opinion. In that case appellant states that in the event the Watson case is affirmed and referendum is allowed, it will not insist upon a reversal in the Shelton case. That appeal is therefore abandoned.

Both judgments are affirmed.

PALMORE, J., not sitting.


author: DAVIS, Commissioner.

text:
    Stephen A. DERRY, Appellant, v. Maurice L. MILLER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.
    Rehearing Denied April 14, 1004.

      Laura Miller Derry, J. B. Gathright, Louisville, for appellant.
    Ernest G. Baxter, Stanford, J. W. Jones, Marshall, Cochran, Heyburn & Wells, Louisville, for appellees.
   DAVIS, Commissioner.

This appeal constitutes an abortive attempt to have readjudication of the matters disposed of in Derry v. Miller, Ky., 356 S.W.2d 39.

When the mandate of this court issued May 1, 1962, all justiciable items in' Derry v. Miller, supra, were put to rest. This elementary truth was ignored by appellant. Appellant continued to wage legal battle by filing motions in the trial court to reopen the affirmed judgment. On October 15, 1962, the judge of that court entered an order reciting that appellant had on several occasions renewed a motion to set aside the judgment which had already been affirmed by this court in Derry v. Miller, supra, all of which he had heard and found without merit. The order summarily enjoined appellant and his counsel, as well as any future counsel he might obtain, from persisting in such motions. The tenor of the motions was that there should have been an attorney’s fee allowed to Laura Miller Derry and that no fee should have been allowed to J. W. Jones. Of course, these were the partnership settlement matters disposed of in the original appeal.

In brief for appellant we are asked to read again the briefs and records in the original appeal. Then we are invited to “thoroughly consider all of the merits in this matter and set aside * * * opinion heretofore rendered and remand this matter to the trial court for complete hearing on the entire case.” Manifestly such procedure is not authorized.

The judgment is affirmed.


author: MILLIKEN, Chief Justice.

text:
    Chester I. BAYS, Administrator of the Estate of Oliver Lee Mayes, Deceased, et al., Appellants, v. INDIAN HILLS COUNTRY CLUB et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.
    Rehearing Denied April 17, 1964.

      Chester I. Bays, Bowling Green, for appellants. '
    Maxey B. Harlin, Bowling Green, for ap--pellees.
   MILLIKEN, Chief Justice.

This is an appeal from a judgment affirming a finding of the Workmen’s Compensation Board which denied compensation.

On April 8, 1960, Oliver Lee Mayes was" •operating a “bushhog” mower on the defendant’s golf course. He received a traumatic injury when his leg was struck by ■rocks thrown by the bushhog which was not ■equipped with a protective cover to guard ■persons and property from danger of articles thrown up by the operation of the mower. The Workmen’s Compensation Board found that this injury produced temporary total disability from April 2l, 1960, to May 21, 1960.

Though the claimant was obese, the injured leg swelled to about twice the size of ■the other leg. Claimant was unable to work and suffered generally from ill health .and from his injured leg in particular. He •died on April 16, 1961, a year and eight ■days after the. injury to his leg. During the interval between his injury and his death, he was treated by several physicians. No .autopsy was performed.

The administrator of the claimant’s estate (hereinafter referred' to as the claimant) contends that his traumatic injury caused deep thrombophlebitis; that the thrombi which attached themselves to walls of the deep veins became detached, circulated through his vascular system and lodged in an artery in the lungs, resulting in a pulmonary infarction or in a pulmonary embolus which caused his death. The claimant introduced the expert testimony of Dr. Morris M. Weiss of the Department, of Cardiology of the University of Louis7 ville School of Medicine who was of the opinion that the decedent died of a pulmonary embolus -which arose as a result of the injury of April 8, 1960. Inasmuch as Dr.,-Weiss had never examined the decedent,, his opinions were based on hypothetical questions. • The referee was persuaded ' by the claimant’s theory and felt that the reasonable and legitimate inferences from his testimony justified .an award.

It is the defendant’s theory that the claimant failed to present positive proof that the continuing disablement from the swelling or phlebitis was anything more than a consequential development of heart trouble of a protracted nature. The defendant offered proof that the claimant could have died of a coronary occlusion and its medical witnesses say that the claimant may have died of one or two things, one of these being .the cause to which the claimant attributed death. Dr. Charles B. Thorne of the Department of Cardiology of Vanderbilt University School of Medicine, stated that he was no.t able to attribute death to a definite cause. It was Dr. Thorne’s conclusion that the decedent died either of a heart attack or a pulmonary embolus; he added that if an autopsy, had shown ..that the decedent died of a pulmonary embolus, it would have been impossible to determine whether the embolus originated in the leg or in the heart. Dr. Thorne had examined the decedent while he was alive and had observed that he had a degenerative circulatory system — irregular heart due to auricular fibrillation, uncoiling aorta, and that he also had varicose veins in his legs. Three other physicians who had examined the decedent while he was alive were of the opinion that he died either of a pulmonary embolus or a heart attack.

The Workmen’s Compensation Board concluded that the claimant did not introduce sufficient evidence to satisfy the burden of proof that death was caused as a result of the leg injury. The claimant has the burden of persuasion in compensation cases and in a case like this where the evidence is conflicting we must sustain the conclusion of the Board. In other words, here the evidence of the cause of death is not so “clear-cut and convincing that we could justifiably conclude that the Board acted erroneously as a matter of law in reaching * * * its finding that the injury (death)” was not caused by the claimant’s injury. Lee v. International Harvester Company (1963), Ky., 373 S.W.2d 418.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    KERNS BAKERY, Appellant, v. John C. HODGES et al., Appellees.
    Court of Appeals of Kentucky.
    March 20, 1964.

      Robert L. Milby; Hamm, Taylor & Mil-by, London, for appellant.
    Luker & Luker, London, J. W. Craft, Jr., Frankfort, for appellees.
   WADDILL, Commissioner.

Kerns Bakery is appealing from a judgment upholding an award of the Workmen’s Compensation Board. The grounds relied on for reversal are that the Board erred: In receiving the report of a physician appointed under an invalid statute, namely KRS 342.121; in failing to apportion the award under KRS 342.120(1) to (4); and in failing to find that the Subsequent Claim Fund was liable for the payment of the award under KRS 342.120(5).

On August 20, 1960, John Hodges sustained an injury to his back which arose out of and in the course of his employment with Kerns Bakery. The accident occurred while Hodges was assisting in lifting a conveyor pan weighing approximately four hundred pounds.

Hodges was unable to work for approximately eight weeks and was paid compensation by Kerns Bakery for temporary total disability during that period. When he returned to work he was wearing a back brace that had been prescribed by his physician. Upon experiencing some difficulty in performing his work he was assigned to less arduous duties at a reduction in wages.

A specialist in orthopedic surgery diagnosed Hodges’ injury as a lumbo-sacral strain and was of the opinion that Hodges was permanently disabled to the extent of 30 per cent, 5 per cent of which was due to the injury sustained on August 20, 1960, and the remaining 25 per cent of which was attributable to a pre-existing condition of his back. However, another specialist was of the opinion that Hodges was permanently disabled to the extent of 25 per cent, all of which was due to the injury sustained on August 20, 1960. Upon this evidence a referee of the Board recommended, insofar as pertinent here, that Hodges be awarded compensation on the basis of 25 per cent permanent disability.

Having reviewed the referee’s recommendation pursuant to KRS 342.280, the Board found that a medical question was at issue and in accordance with KRS 342.-121 it appointed a physician of its own choosing to make an investigation to determine the amount of Hodges’ disability and what portion of it, if any, was attributable to a pre-existing condition. This physician’s report to the Board contained, among other things, his conclusion that the injury Hodges sustained on August 20, 1960, resulted in a permanent partial disability of 25 per cent and that no significant disability existed prior to that time. Kerns Bakery filed specific exceptions to the report and upon a submission of the case the Board found, in pertinent part, that Hodges sustained 25 per cent partial permanent disability due solely to the injury he received on August 20, 1960.

In support of its first contention Kerns Bakery urges that KRS 342.121, which provides for the appointment of a physician and governs the probative effect to be given his report, is invalid in that it usurps the function of the Board and does not afford due process of law because the parties have no opportunity to cross-examine the physician.

The statute unquestionably confers upon the Board-appointed physician the authority to initially decide any medical questions at issue. The fact that this function was previously performed by the Board is irrelevant because the Legislature may at any time change the procedure for administering the Compensation Act. General Refractories Co. v. Henderson, 313 Ky. 613, 232 S.W.2d 846. While the statute does permit the Board-appointed physician wide latitude in conducting his medical investigation this fact does not render the statute invalid. As we interpret this statute, if there are no exceptions timely filed to the Board-appointed, physician’s report it is presumed that the parties accept the report which thereupon becomes conclusive of the medical questions involved. If exceptions are timely made the Board may modify <pr set aside the report under which circumstance it becomes analogous to a recommendation of the Board’s referee and. is not controlling on the Board. This op-; portunity for review, and the judicial review afforded by KRS 342.285 and 342.290, adequately .preserve the safeguards of due process of law. Consequently, we find that, there is no merit to the contention that KRS 342.121 is invalid.

It is further contended’ that the award should have been apportioned under KRS 342.120(1) to (4). There is no merit to this contention because, aside from the’ Board-appointed physician’s report, there was medical testimony upon which the Board could determine that no pre-existing condition contributed to Hodges’ disability.

It is finally contended that, since Hodges was re-employed by Kerns Bakery, KRS 342.120(5) requires the compensation thereafter due be paid from the Subsequent Claim Fund. This subsection of the statute is only applicable if the claimant has been re-employed at wages equal to or greater than those he was receiving before his injury. The fact that Hodges accepted a lower rate of pay soon after his re-employment renders this subsection inapplicable from the date his wages were lowered.

We conclude that the evidence supports the award and the contentions of error are unavailing.

The judgment is affirmed.


text:
    Fred CAIN, Appellant, v. S. C. WHITE, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.
    Rehearing Denied April 17, 1964.

      James F. Clay, Danville, for appellant.
    Wesley Gilmer, Jr., Danville, for appellee.
   WADDILL, Commissioner.

Neither appellant, Fred Cain, nor appel-lee, S. C. White, when terminating their partnership business in 1954, desired to dispose of his interest in a certain clip wheel upon which they had applied for a patent. Instead, they made it the subject of a separate contract by the terms of which Cain was permitted to manufacture this wheel so long as he paid White 55‡ for each unit he sold and guaranteed him a minimum payment of $500 a year. Pursuant to this contract Cain manufactured the wheel and paid White from 1955 through 1958. During 1959 and 1960 Cain continued making the wheel but refused to pay White the sum due him under their contract.

White brought this action to recover the amount Cain allegedly owed him for 1959 and 1960. From a judgment entered against him, Cain appeals contending that the contract is unenforceable as lacking in mutuality since no duties or obligations were imposed on either party.

As we view the contract it is enforceable because White, a co-owner of the clip wheel, gave Cain the exclusive right to manufacture the wheel for which Cain was obligated to pay the specific pecuniary consideration so long as he manufactured and sold the wheeel. Mutuality exists even though the contractual obligations were not exactly commensurate one with the other. Hamrick v. City of Ashland, Ky., 321 S.W.2d 401; United States Fidelity & Guaranty Co. v. Cahill, 264 Ky. 135, 94 S.W.2d 320. The fact that Cain could terminate the contract does not relieve him of his obligation to pay White for the units sold during 1959 and 1960. See 1A Corbin on Contracts, Section 168, pages 94 — 96. Hence, the court properly granted recovery under the contract.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Charles William WALKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.

      Charles W. Walker, pro se.
    Robert Matthews, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Charles William Walker was convicted of armed robbery and given a life sentence. On the day of trial he discharged his court-appointed counsel and defended himself. His appeal is prosecuted pro se.

In a detailed written statement Walker admitted all of the elements of an armed robbery. At that time he had been charged with armed assault with intent to rob the Central Liquor Dispensary, KRS 433.150, and with grand larceny of an automobile. He was subsequently indicted and charged with armed robbery, KRS 433.140. This gives rise to two claimed errors.

First, he urges that the court erred in failing to instruct the jury that he could have been given a sentence of 21 years. There is no merit in this contention since he was charged with a violation of KRS 433.140, for which no penalty of 21 years is provided. He is mistakenly urging that the jury should have been instructed to give-the penalty under KRS 433.150, when the evidence established a violation under KRS-433.140.

Second, the contention in this-regard is that appellant confessed to a violation of KRS 433.150 instead of KRS 433.140.At the time of his confession he was being held for a violation of KRS-433.150, but in the confession he admitted all of the elements of a violation of KRS 433.140. On the evidence presented to the grand jury, he was indicted' for a violation of KRS 433.140. A confession may become evidence of the facts-therein stated but it has no relation to the-offense charged except as proof that may or may not sustain the charge made. This-contention is equally meritless.

Further claimed errors are that the indictment was not read to him and that he was indicted twice for armed robbery. No-proper and timely objection was made to-preserve either claimed error. It is just as-well. The indictment under which appellant was convicted followed a previous indictment returned for the same charge which had been re-referred to the grand' jury, and the later indictment was properly returned thereafter. An uncontradicted affidavit of the Commonwealth’s attorney shows that the indictment was read in its entirety in open court to the appellant prior to the entering of his plea of not guilty.

Appellant claims that the written statement signed by him and introduced should have been held inadmissible. He argues that Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, sustains his contention. Mallory condemns unreasonable delay in taking an accused before a magistrate in order to extort a confession. The delay complained of by appellant here was long after he had confessed. There is no claim of any violation of KRS 422.110, the Anti-Sweating Act. Everything in the case indicates that the confession was freely and voluntarily given about two hours after the commission of the offense. In fact, there was ample evidence aside from the written statement. When apprehended by officers about thirty minutes after the holdup, appellant said, “I am the man you are looking for.”

The trial court, pursuant to KRS 422.-110(2), determined that the confession was competent and admissible and that Mallory v. United States was not applicable. The confession was properly admitted.

Judgment affirmed.


author: STEWART, Judge.

text:
    Eva Eller CAMPBELL, Appellant, v. Homer CAMPBELL and Flonnie Byers, Individually, and as Coexecutors of the Estate of Z. W. Campbell, Deceased, Appellees.
    Court of Appeals of Kentucky.
    March 20, 1964.
    Fritz Krueger, Somerset, Bertram & Bertram, Monticello, for appellant.
    E. R. Denney, Denney & Landrum, Lexington, for appellees.
   STEWART, Judge.

This action involves a postnuptial contract executed by a husband and wife under which she accepted certain property in lieu of her prospective distributable share of her husband’s estate. Upon her husband’s death testate, she renounced the provisions of his will and, claiming the contract was invalid, sought to take under the provisions of KRS 392.020. The trial court upheld the contract, ruled that her renunciation of his will was ineffective, and decided she could not take what would, otherwise amount to her statutory interest. The widow has appealed.

Z. W. Campbell died March 15, 1961, at age 82, a resident of Monticello, Wayne County. Surviving him was his second wife, Eva Eller Campbell, 66 years of age, and two adult children by his first marriage, Homer Campbell and Flonnie Byers. The decedent’s first marriage was terminated by the death of his first wife on September 14, 1941. He and the second Mrs. Campbell were married in 1944 and lived together in domestic accord continuously until his death.

The decedent’s estate consists, after the payment of funeral expenses, of personalty in the approximate amount of $30,000, and of real estate comprising a house in Monticello, known as the “home place,” valued at $7000. Practically his entire estate had been inherited from his father.

On December 8, 1953, when he was 74 and she was 57, the Campbells entered into a contract by the terms of which he agreed to execute a will and devise and bequeath -unto her the home place for her lifetime, or so long as she remained his widow, “together with all appliances, fixtures and appurtenances located therein or used in •connection therewith.” In addition he agreed to bequeath unto her for life the income from $7000 which was to be invested in United States bmids.

In consideration of the benefits to be received under the contract, Mrs. Campbell agreed to relinquish all claims to any further portion of or interest in Mr. Campbell’s estate at the time of his death by reason of the marital relationship; and Mr. Campbell likewise obligated himself to release any and all similar claims in and to her estate in case she predeceased him.

On December 9, 1953, Mr. Campbell executed his will which undertook to fulfill the provisions imposed upon him by the contract. After his death on March 15, 1961, the will was duly probated.

After the renunciation of the will by Mrs. Campbell, and her announced intention to disregard the contract, Homer Campbell and Flonnie Byers, the two adult children of Mr. Campbell who had qualified as coexecutors under his will, brought this action to have the respective rights of the parties judicially determined. We have heretofore pointed out that the trial judge upheld the contract and restricted Mrs. Campbell’s share in her husband’s estate according to its terms.

It is not disputed that Mr. and Mrs. Campbell could enter into a valid postnup-tial contract wherein each relinquished his or her respective interest in the property of the other, if such an agreement was fair and equitable, and supported by an adequate consideration. See Smith v. Smith (2 cases), 295 Ky. 50, 173 S.W.2d 813, 815, Smith’s Adm’r v. Price, 252 Ky. 806, 68 S.W.2d 422. This is the weight of authority under statutes such as ours enlarging the powers of married women and empowering them to make contracts “as a single woman.”

The trial court considered very thoroughly the evidence in this case and reached the conclusion that' since Mrs. Campbell, uninfluenced by fraud and upon a sufficient consideration, voluntarily agreed to the terms and conditions of the contract, she must take under it, and under the will which carried out its provisions.

However, it is vigorously argued that, although no deceit or coercion was proven, the contract is not supported by an adequate consideration. Appellant relies upon Redwine’s Ex’r v. Redwine, 160 Ky. 282, 169 S.W. 864, to sustain her contention in this respect. In that case it was determined there was not only an insufficient consideration to support the agreement but that the postnuptial contract was not “freely and voluntarily executed” by the wife.

In Pittsburg, C., C. & St. L. Ry. Co. v. Carmody, 188 Ky. 588, 222 S.W. 1070, 12 A.L.R. 469, it was held that, if the subject of a contract is lawful and the parties are sui juris, the right to bind themselves cannot he restricted because it is to the disadvantage of one of the parties making it. Robbins v. Robbins, 246 Ky. 411, 55 S.W.2d 31, points out that mutual promises form a valuable consideration for an agreement where there is benefit to the promisor or detriment to the promisee. See also Smith’s Adm’r v. Price, cited above.

We are unable to say under the evidence that the findings of fact of the trial judge are clearly erroneous. See CR 52.

Wherefore, the judgment is affirmed.


author: FRASER, Chief Justice.

text:
    FIRST STATE BANK OF MONAHANS, Texas, Appellant, v. James A. HENDERSON, Appellee.
    No. 5628.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 19, 1964.
    Tom L. White, Monahans, for appellant.
    W. F. Leigh, Pecos, for appellee.
   FRASER, Chief Justice.

This is an appeal from a summary judgment rendered by the trial court in favor of the plaintiff-appellee and against the defendant Bank. Plaintiff’s position is that the Bank wrongfully honored and paid a check in the sum of $4,200.00 made payable to one Worsham. He maintains that the Bank was at fault in honoring the check because it was not countersigned by plaintiff. Said check is not included in the record.

The transcript and the record as a whole reveal that the plaintiff, in addition to his petition, filed two affidavits in support of his motion for summary judgment. Included in the record are plaintiff’s request for admission of facts and the Bank’s answers thereto. The defendant Bank sent up its original answer, its amended original answer, and its answer to plaintiff’s motion for summary judgment to which is attached an affidavit by one Archer, president of Tumbleweed Designs, Inc. Defendant also included copies of alleged contracts between Tumbleweed, plaintiff, and Worsham. The plaintiff urged, and the trial court held, that the defendant Bank’s pleadings and documents and exhibits showed an absence of genuine issue of any material fact, and further that the Archer affidavit was inSufficient as a matter of law. The court rendered judgment against the defendant Bank in the sum of $4,149.44.

The matter appears to have arisen in the following manner: a corporation, known as Tumbleweed Designs, Inc., was in existence at Monahans, Texas, its president being A. R. Archer, Jr., the maker of one of the proffered affidavits in the record. It seems that this corporation desired to improve its financial picture, and made an agreement with plaintiff under which plaintiff would deposit the sum of $10,000.00 in the defendant Bank to the credit of Tumbleweed Designs, Inc., this to be done with the understanding that the plaintiff would not draw any of this money out for himself for a period of thirty days. It was further agreed that Tumbleweed was to have the use of this money for sixty days, with the exception of such amounts as plaintiff might withdraw after the first thirty days had expired. It is not contradicted that Tumbleweed wished to have this money in its bank account in order to help acquire a loan of some $75,000.00 from another source. Plaintiff alleges that it was agreed that Tumbleweed could not draw on its account after the deposit of the $10,000 except on a check executed by the corporation and countersigned by the plaintiff, and that a new signature card to that effect had been executed. The check in question here was not countersigned by the plaintiff. It is apparent from the record that prior to the deposit of this $10,000, Tumbleweed corporation did have a bank account and a signature card on file with the defendant Bank. It is alleged that the new signature card was made out by plaintiff, Archer, and a Mrs. Walsh, a representative of the Bank, but there is some confusion between the parties as to the date this was accomplished.

Now it must be remembered that the judgment of the trial court recites that defendant Bank failed to successfully controvert plaintiff’s motion for summary judgment, and failed to indicate that there existed a material fact question.

Our study of the record impels us to believe that there are questions of fact that need to be determined before this controversy can be properly adjudicated. For example, the Bank maintains that the new signature card (which was intended to replace and cancel the one under which Tumbleweed Designs, Inc., had been operating) was inadequate and legally insufficient; this because, according to the Bank, Tumbleweed had been enjoying the valid right to write its own checks; the new signature card, according to defendant, lacked one required signature; and said signature card did not show (nor does the record show) that the new card, replacing the old one, was drawn up with proper corporate authority. Defendant therefore urges that it had a right and obligation to continue paying checks on the authority of the original Tumbleweed corporation card. The defendant points out provisions of the Business Corporation Act with regard to corporate obligations and powers, and further states that there is no evidence in the record that Archer was a director; the Bank thereby taking the position that the original card allowing Tumbleweed to draw its money out in its own way had not been superseded or canceled because the new card was inadequate, insufficient, and lacked corporate authority; and that therefore the Bank had the right and the obligation either to continue paying on the basis of the original card, or at least not to pay out any money until a proper signature card had been executed. This appears to us to be an important fact. The money was deposited by plaintiff in the Tumbleweed corporation account, and unless there was an adequate and legal change, Tumbleweed still retained the power to write checks as it had been doing previously. We cannot pass upon whether or not the new signature card has enough signatures because neither the card nor a copy thereof is in the record, and it is not known what is on said card other than assertions in the affidavit of plaintiff and defendant’s answers to request for admissions. Furthermore, there are no documents in the record showing corporate authority with reference to the new signature card.

Plaintiff alleges in his affidavit that the check in question was written and cashed some time during the month of February, 1962, hut he does not indicate how he knows this to he true or how such fact can he substantiated; and — as heretofore stated— neither the check nor a photostatic copy thereof is included in the record. If the signature card which was alleged to have been executed on the 24th day of January, 1962 was valid, then the date of the cashing of the check would be not only important, hut vital. The only information we have is that plaintiff says in his affidavit that it was cashed in February. There is further confusion because plaintiff, by his interrogatories, asked the Bank to admit that the $10,000 deposit was made on or about January 10th. The Bank replied that it was made on or about the 22nd day of January, 1962. The same is true about the date of the new signature card, which the Bank denied was made on the 10th day of January, 1962, but stated was actually executed on the 24th day of January, 1962. If this check was written and cashed before January 24th (the alleged date of the execution of the new signature card), then plaintiff would have no cause of action, because up until that time the Bank was honoring checks on the original corporate signature card of Tumbleweed Designs, Inc. In other words, the date of the cashing of the check is very important because, if the new signature card was improper, insufficient, or executed after the check in question was cashed, defendant Bank would likely not be liable.

Plaintiff, in his affidavit, states that there was an agreement about the placing of the $10,000 in Tumbleweed’s account, and that such agreement was made between plaintiff, Archer (President of Tumbleweed), and Mrs. Walsh, an admitted representative of the Bank, and apparently urges that the agreement was made simultaneously with the deposit of the- money. There is no deposition and no testimony from the Bank representative on this particular phase of the matter, and we are therefore again confined to the statement in plaintiff’s affidavit.

In examining the Bank’s answers to the interrogatories submitted to it by plaintiff, the Bank, under question and answer No. 24, says that it is not true that it honored checks subsequent to January 10, 1962 knowing that James A. Henderson had to countersign the same. The Bank also says, in answer No. 26, that it is not true that it knowingly and willfully allowed Tumbleweed Designs, Inc., to write such checks without such signature. In answer No. 27 it says that it is not true that said defendant negligently allowed and permitted Tumbleweed Designs, Inc. to write such checks on said account (meaning thereby checks not countersigned by plaintiff). And in answer No. 28 the Bank says that it knowingly and willfully honored and paid checks on the Tumbleweed account without the signature of plaintiff. Defendant urges that, by these answers, it is evident that defendant Bank did not know or recognize that plaintiff’s signature was necessary on Tumbleweed checks, and that therefore it continued to pay Tumbleweed checks without plaintiff’s countersignature. Here again we .have a disagreement on what, to us, s.eems to be a material fact issue.

Defendant also urges the existence of a contract or partnership between Tumbleweed, Worsham (who received the proceeds of the check), and plaintiff, and that plaintiff’s own partner received the proceeds of the check.

Now in summing up, it seems that the trial judge rested his decision on inadequacies and defects in the Bank’s defense to the motion for summary judgment and his belief that there were no material fact issues in controversy. Plaintiff urges that this decision was correct because of what he describes as deficiencies in these affidavits and their contents.

We do not believe that a summary judgment can be justified on the circumstances here present. The plaintiff himself, in his interrogatories and his affidavits, shows considerable confusion about when the money was deposited, the signature card executed, and its adequacy; and states, without any substantiation, that the check in question was cashed in February, 1962. The Bank maintains that it did not know, or admit, that plaintiff’s signature was required on Tumbleweed corporation checks. Again we point out that we do not have in this record any copies of either the new signature card or the check in question.

In his affidavits plaintiff alleges that he did not know that the $4,200.00 check had been issued to and cashed by Worsham until many weeks after this had been accomplished ; and finally, that in March he himself drew out $5,000.00, which left very little of the $10,000 deposit in Tumbleweed’s account.

We think the law as enunciated in Pattison v. Highway Insurance Underwriters, 292 S.W.2d 694 (Tex.Civ.App.,N.R.E.) is pertinent here, as illustrated by the following quotation:

“The Supreme Court has announced as a general rule, 'that if a motion involves the credibility of affiants or deponents, or the weight of the showings or, it is said, a mere ground of inference, the motion will not be granted.’ See Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929, 931, where the Court quotes with approval statements from courts of civil appeals to the effect that summary procedure is not intended to deprive litigants of their right to a ' “full hearing on the merits of any real issue of fact” ’ and that “All doubts as to the existence of a genuine issue as to a material fact” ’ must be resolved against the motion. (Emphasis supplied).
“Courts of civil appeals—see Loud v. Sears, Roebuck & Co., Tex.Civ.App. Dallas, 1953, 262 S.W.2d 548—have declared that the summary judgment practice is to be exercised with great caution since litigants are entitled to a final trial where there is the slightest doubt as to the facts.
“The cases make it plain that in summary proceedings the burden rests heavily upon the moving party to negative conclusively the existence of a genuine issue in regard to some controlling fact entitling the movant to judgment. And that where it appears that such an issue ‘may exist’, summary relief is to be denied without regard to informalities or defects in the resisting party’s showing. See Felker Lumber Co. v. Superior Insurance Co., Tex. Civ.App. Texarkana, 1954, 272 S.W.2d 161.”

Also, in the case of Langehennig v. Hohmann, 365 S.W.2d 203 (Tex.Civ.App., N.R.E.), the court points out that the affidavits filed in a summary judgment case must contain statements of fact which affiant knows and is able to substantiate on a trial of the case on the merits. On the basis of these two cases and the cases cited therein, we believe that the law clearly states that the movant in a summary judgment case has a great burden not only to negative conclusively the existence of a genuine issue with regard to a controlling fact, but it must also be clear that such affiant can substantiate his statements or allegations. See also Westfall v. Lorenzo Gin Co., Tex.Civ.App., 287 S.W.2d 551, wherein the court points out that affidavits that support a summary judgment must contain facts which affiant knows and is able to substantiate on trial of the case on its merits. In the case before us there is not sufficient indication that affiant can substantiate several matters we have outlined above as appearing to us to be material fact questions — as, for example, the date the Worsham check was cashed; the date of the deposit of the $10,000; and further, whether the second signature card was adequate or what was actually on it.

It is not clear from' movant’s affidavits why these material facts are not' set forth in said affidavits,’ or some indication included therein leading to the belief they can be substantiated, as the cases herein cited indicate should be done.

On the basis of the above authorities we reach the conclusion that in the matter before us the plaintiff did not sufficiently meet the requirements which the law places upon one seeking a summary judgment. We further find that the record as a whole indicates the existence of material fact questions that should be determined in a trial of this case on its merits.

The judgment of the trial court is accordingly reversed and the case remanded.


author: WERLEIN, Justice.

text:
    Daniel J. MULCAHY, Appellant, v. Morris L. COHEN et al., Appellees.
    No. 14282.
    Court of Civil Appeals of Texas. Houston.
    Jan. 23, 1964.
    Rehearing Denied March 5, 1964.
    Second Motion for Rehearing Denied April 2, 1964.
    Donald W. Callahan, Joe M. Block, Houston, for appellant.
    Barrow, Bland, Rehmet & Singleton, R. F. Wheless, Jr., Houston, for appellees.
   WERLEIN, Justice.

This is a suit brought by appellant to recover damages allegedly resulting from the publication by appellees of a libellous statement on or about February 15, 1962, charging appellant, an attorney at law and certified public accountant and also formerly vice president and secretary-treasurer of Houston Steel Drum Company, with fraudulently inserting a certain clause in a chattel mortgage that had been executed by it to appellee, Newark Steel Drum Company, securing an indebtedness of $75,000.00. The clause referred to is Clause XI which provides in substance that if Newark Steel Drum Company foreclosed such chattel mortgage, it would thereby assume all debts of Houston Steel Drum Company.

Appellees, who are domiciled in and residents of the State of New Jersey, made special appearances for the purpose of objecting to the jurisdiction of the court by filing their sworn motions as provided by Rule 120a, Texas Rules of Civil Procedure. The trial court sustained appellees’ motions and entered judgment dismissing the cause for want of proper citation and service upon appellees. From such judgment appellant has perfected his appeal.

The trial court, upon the request of appellant, filed its findings of fact and conclusions of law as follows:

“1. Defendant Newark Steel Drum Company is a foreign corporation incorporated under the laws of the State of New Jersey which does not maintain an office in the State of Texas. Defendants Morris L. Cohen, Norman H. Cohen and W. J. McEntee are individuals who are citizens and residents of the State of New Jersey. None of such Defendants are residents or citizens of the State of Texas.
“2. None of the Defendants in this cause have been personally served in the State of Texas.
“3. Notice of suit was given Defendants by delivery of copies of process to the Secretary of State of the State of Texas, in Austin, Texas, and delivery of copies to such Defendants by registered mail in the State of New Jersey.
“4. The Defendants specially appeared under Rule 120a of the Texas Rules of Civil Procedure to contest the jurisdiction of this Court.
“5. None of the Defendants maintain an agent of service in the State of Texas.
“6. None of the Defendants are engaged in or doing business in the State of Texas.”

The court concluded:

“1. None of the Defendants are engaged in or doing business within the State of Texas within the meaning of Article 2031b of the Revised Civil Statutes of Texas.
“2. This Court does not have jurisdiction over the person of Morris L. Cohen, Norman H. Cohen, W. J. Mc-Entee or Newark Steel Drum Company, a corporation, for want of proper citation of and service upon said Defendants.”

Appellant contends that the trial court erred in finding and concluding that none of the appellees was engaged in doing business in the State of Texas, and in sustaining appellees’ special appearances to object to the jurisdiction of the court, and also because the court erred in finding that none of the appellees maintains an agent for service in the State of Texas and in concluding that the court did not have jurisdiction over the appellees for want of proper citation and service upon appellees.

The trial court in its judgment recites :

“On this 8th day of April, 1963, duly came on for hearing before this Court the Defendants’ plea to the jurisdiction of this Court over the person of the Defendants pursuant to Rule 120a of Texas Rules. of, Civil .Procedure; and■ chine the'Plaintiff, in .person ánd by his attorney of record, and came the Defendants, by and through their .duly' authorized attorney of record, and both . sides having announced ready, the said plea was submitted to the Court, 'and the Court, having" considered the 'evidence, statement ,o.f counsel, the. pleadings and’ argument, is of the opinion that this Court does not' have jurisdiction over the person.of Morris R. Cohen, Norman H. Cohen, W. J. McEntee and Newark Steel Drum Company, a New Jersey corporation,. Defendants herein, for want of proper citation of and service upon said Defendants.”

No statement of facts has been filed in this cause and the' only facts before us are those contained in the findings of fact of the- court. Appellant requested the court to tnake additional findings and conclusions, which request was refused. In the absence of a.statement of facts, we cannot say that the'trial court erred.

Appellant asserts that he pleaded a good cause of action founded in tort to recover damages for libel. ' He relies on Article 2031b, Sec. 4, Vernon’s Annotated -Texas Statutes, which provides, among other things, that the committing of any tort in whole or' in part in this State by any foreign corporation or nonresident natural person shall constitute doing business in this State. He also relies upon other sections of such Article which provide for service of process in such case being made, as was done in the instant suit, upon the Secretary of State of the State of Texas, who delivered copies of such process to appellees by registered mail in the State of New Jersey as found by the trial court.

We have carefully examined appellant’s petition and have concluded that he-has pleaded a good cause,of action for libel against appellees constituting a tort committed in this State. Appellant’s pleading does not show on its face that the publication of such libellous statement was absolutely privileged. As' a. .getierál. rulé; if the privileged occasion of the . communication does no.t" appear from the plaintiff’s petition,'the burden is ordinarily upon the defendants to e.s'táblish it. 53 C j.S. Li'b'el and' Slander § 220, p. 332; Rickbeil v. Grafton Deaconess Hospital, 1946, 74 N.D. 525, 23 N.W.2d 247, 166 A.L.R. 99.

In- the. absence of a statement of facts, the trial court’s findings of fact are binding on the appellate court and we must presume that the evidence was sufficient and that every fact necessary to support the findings and judgment, within the scope of the pleadings, was proved at the trial. Fitchett v. Bustamente, Tex.Civ.App., 329 S.W.2d 920, writ ref., n. r. e.; Shipp v. Lyons, Tek.Civ.App., 352 S.W.2d 533. It is impossible for this Court to tell what evidence was introduced before the court or what the court considered at the hearing at which the court found that none of the defendants maintains an agent for service in the State of Texas or is engaged in or doing business in the State of Texas. The court concluded that none of the defendants was. engaged in or doing business within the State of Texas within the meaning of Article 2031b of the Revised Civil Statutes of' Texas. This conclusion may also be considered a finding of fact. It would be illogical to conclude that the trial court by using the present tense in its judgment had reference to what was being done .at the time of the trial, since the whole cause of action of.¡plaintiff is based upon what occurred at the time of publication of the libel. The court was actually finding that none ;of the defendants was engaged in doing business in' the State of Texas at the time the alleged tort was committed since Article 2031b, Sec. 4, relied upon by appellant, has reference to committing a tort in this State.

Appellant asserts no evidence was-heard. However, we are compelled to accept the court’s statement ir_ the judgment that evidence was heard, since there is no statement of facts before us. Moreover, Rule 120a, T.R.C.P., contemplates a hearing, and provides that the issuance of process for witnesses, the taking of depositions, the serving of a request for admissions, and the use of discovery processes, shall not constitute a waiver of a special appearance. In this case the special appearances of the appellees were each and all made by sworn pleadings filed by them, in which they stated that they had done no act to submit themselves to either the potential or actual jurisdiction of the court.

The court’s findings of fact and conclusions of law support the judgment. Errors or omissions therein could only be shown by reference to a statement of facts which could have been obtained by following the prescribed procedure. Lindsey v. Caston, Tex.Civ.App., 1938, 118 S.W.2d 843. “In the absence of a statement of facts, findings by the jury, or by the judge in non-jury cases, are generally conclusive on appeal.” 3 Tex.Jur.2d, p. 711, Appeal and Error, § 462, and' authorities- cited. Every presumption must be indulged in favor of the trial court’s findings and judgments. Harden v. Federal Farm Mortgage Corporation, Tex.Civ.App., 223 S.W.2d 39; Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365: International Longshoremen’s Ass’n, Independent v. Galveston Maritime Ass’n, Tex. Civ.App.1962, 358 S.W.2d 607; Kuykendall v. Biggs, Tex.Civ.App., 331 S.W.2d 67, writ ref., n. r. e.; Bavousett v. Bradshaw,Tex.Civ.App., 332 S.W.2d 155, writ ref., n. r. c. In Commercial Credit Corporation v. Smith, supra, our Supreme Court said:

“It is not open to question that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court’s findings and judgment and where there arc no findings and no statement of facts, such facts as are necessary to support the judgment must be presumed to have been found.”

Judgment affirmed.

On Motion for Rehearing

Appellant’s amended motion for" rehearing and supplemental transcript, filed, with permission of the Court, have been carefully considered. His motion to file a statement of facts, containing the evidence adduced at a hearing by the trial court on February 7, 1964, is denied. Such hearing was on appellant’s motion to correct an alleged clerical error consisting of a recital in the judgment appealed from to the effect that the court had “considered the evidence”. Where the statement of facts is incomplete or incorrect, it may be amended under Rules 428 and 429, Texas Rules of Civil Procedure. We know of no provision, however, which will permit the filing of a statement of facts long after an appeal has been perfected in a cause in which no statement of facts was obtained or filed. The statement of facts which appellant now seeks to file consists of testimony adduced at the hearing on appellant’s motion to-correct a clerical error in the- Court’s judgment and not evidence adduced -at the hearing on appellees’ plea to the jurisdiction when such judgment was entered.

As shown by the supplemental transcript the trial court entered an order on February 14, 1964, overruling appellant’s motion to correct the alleged clerical error in its judgment of April 23, 1963, and in such order the court recited that it was of the opinion that the judgment entered by the court on April 23, 1963 is the same judgment that was rendered by the court and that “This Court considered evidence, statements of counsel, the pleadings and arguments in reaching its determination of the issue before it at that time, and in rendering such judgment.”

The trial court’s determination that there was no clerical error in its judgment of April 23, 1963, is binding upon this Court.

Appellant’s motion for rehearing is overruled.


author: PHILLIPS, Justice.

text:
    TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellant, v. Daniel William SCOTT, Jr., M.D., Appellee.
    No. 11151.
    Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1964.
    Rehearing Denied March 18, 1964.
    Waggoner Carr, Atty. Gen., Fred D. Ward, Bill Morse, Jr., Asst. Attys. Gen., Austin, for appellant.
    Davis & Gray, Houston, for appellee.
   PHILLIPS, Justice.

Dr. Scott, the appellee in this Court, was charged before the Texas State Board of Medical Examiners with violation of the provisions of subdivisions (4), (5) and (12) of Article 4505, Vernon’s Civil Statutes.

Article 4505, V.C.S., provides, when read in conjunction with Article 4506, V.C.S., that the abovementioned Board shall have the right to “cancel, revoke, or suspend the license of any practitioner of medicine upon proof * * * (4) Grossly unprofessional or dishonorable conduct, or a character which in the opinion of the Board is likely to deceive or defraud the public; (5) the violation, or attempted violation, direct or indirect, of any of the provisions of this Act, either as a principal, accessory, or accomplice; * * * (12) The impersonation of a licensed practitioner, or permitting, or allowing, another to use his license, or certificate to practice medicine in this State, for the purpose of treating, or offering to treat, sick, injured, or afflicted human beings.”

The Order of the Board was as follows:

“On this the 18th day of August, 1962, came on to be heard before the Texas State Board of Medical Examiners, duly in session, a certain complaint filed with the Board on the 26th day of July, 1962, in which it was complained that Daniel William Scott, Jr., M.D., had violated the provisions of Sub-Divisions (4), (5) and (12) of Article 4505, Revised Civil Statutes of Texas, 1925, as amended, such violation being grounds for the cancellation, revocation or suspension of the license to practice medicine in the State of Texas, by Daniel William Scott, Jr., M.D., and the said Daniel William Scott, Jr., M.D., of Houston, Harris County, Texas, having appeared in person and through his Counsel, Mr. William Dorman, and the said charges and complaint having been read, and the evidence on said complaint and charges having been introduced and heard, and after consideration of the charges and evidence, the Board is of the opinion that the charges contained in the complaint are true in so far as said charges relate to prescribing and administering amphetamine, amphetamine derivatives and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to known addicts, and also in so far as said complaint relates to prescribing and administering amphetamine, amphetamine derivatives, and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to patients of Daniel William Scott, Jr., M.D., under conditions which said Daniel William Scott, Jr., M.D., knew or should have known there was no therapeutic need for such patients, therefore
“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED, that the license to practice medicine within the State of Texas, heretofore held by Daniel William Scott, Jr., M.D., be revoked and cancelled.
“Rendered and entered this 18th day of August, 1962.”

Appellee then brought suit in the district court to permanently enjoin the Board from enforcing the abovementioned Order. The case was tried before a jury that found from the preponderance of the evidence that the doctor had prescribed certain barbiturates and narcotics to persons known to the doctor to be addicted to the use of such drugs and that such conduct constituted grossly unprofessional and dishonorable conduct of a character likely to deceive or defraud the public. The jury made several additional findings not pertinent to this opinion.

There is no dispute in- that at the time ap-pellee wrote the prescriptions in question he was duly licensed to practice medicine in the State of Texas and held a valid federal narcotics license.

Lawyers for the Board made a motion for judgment on the verdict, however the court on motion by appellee entered a judgment non obstante veredicto. The Board then perfected this appeal under the provisions of Rule 324, Texas Rules of Civil Procedure.

Appellant contends that the Trial 'Court erred in trying the case before a jury under the preponderance of the evidence rule and that the case should have '•been tried under the substantial evidence rule.

We hold that the appellant is correct in this contention.

The granting or revoking of licenses has been held to be an extension of the power of the legislature albeit performed by an administrative agency created by the legislature. This has been held in license cases involving optometry, pharmacy, dental practice and real estate. State Board of Examiners in Optometry v. Marlow, Tex.Civ.App., 257 S.W.2d 761; Garner v. Texas State Board of Pharmacy, Tex.Civ.App., 304 S.W.2d 530, writ refused; Texas State Board of Dental Examiners v. Fenlaw, Tex.Civ.App., 357 S.W.2d 185; Host v. Texas Real Estate Commission, Tex.Civ.App., 359 S.W.2d 306, writ refused. 'This holds true even though the act provides that the trial shall be de novo. Such requirement is unconstitutional in that it breaches the traditional division of powers between the three departments of our state government. Chemical Bank & Trust Company v. Faulkner,Tex., 369 S.W.2d 427.

In a proceeding under the substantial evidence rule the party aggrieved by the administrative decision must assume the burden of satisfying the courts that the administrative decision is illegal, arbitrary ■or capricious; that is, that it is not reasonably supported by substantial evidence. Board of Firemen’s Relief and Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181.

In the case at bar the burden of proof was misplaced in that the Board was required to prove its case. The appellee presented no witnesses at all. The case has not been fully developed and in the interest of justice should be reversed and retried. London Terrace v. McAllister, 142 Tex. 608, 180 S.W.2d 619; Rule 434, T.R.C.P.

Appellee contends that the order of the Board is void as a matter of law in that it fails to affirmatively and clearly hold that appellee had violated the subdivisions of Article 4505, V.C.S. set out in the Order. We cannot agree with this contention. The Order states that the charges are brought under subdivisions (4) (5) and (12) of Article 4505. Subdivision (4) is “[gjrossly unprofessional or dishonorable conduct, or a character which in the opinion of the Board is likely to deceive or defraud the public.” The Board then sets out in its findings the conduct of the doctor which, in its opinion, substantiates these charges.

In State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609, the Court held that Section 4 of Art. 4505 includes “a doctor’s grossly unprofessional or dishonorable conduct practiced under the cloak of a medical treatment.” We hold that the conduct of appellee as found by the Board would be such conduct as to come within the provision of Sec. 4 of the Act set out above.

We reverse and remand this cause for a new trial.

Reversed and remanded.

ON MOTION FOR REHEARING

This is the first time that the question of the constitutionality of the trial de novo provision of the medical practice act has been before the courts of this state. In order for the courts to pass on this question, it is necessary that it be raised. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807.

This Court held in Bradley v. Liquor Control Board, 108 S.W.2d 301, that the cancellation of a permit to sell liquor under the Liquor Control Act is merely the exercise of an administrative function and that a permittee that is allegedly aggrieved by an order of the Board is not entitled on appeal to a trial de novo as if the Board had not acted on the matter, since, if the statute were to be construed as so authorizing, it would be unconstitutional as an attempt by the Legislature to confer administrative power and duties upon the judicial department.

In State Board of Medical Registration v. Scherer, 221 Ind. 92, 46 N.E.2d 602, the Supreme Court of Indiana held in connection with the revocation of a medical license:

“The granting and revocation of licenses to engage in trades, businesses, or professions is a ministerial function. Ministerial boards act as fact-finding bodies to ascertain whether applicants conform to a legislative formula by which the right to a license is fixed. It is well settled that under the division of powers, these ministerial fact-finding duties may not be delegated to courts, and that the so-called appeal provisions of statutes which undertake to vest in courts jurisdiction to try and determine de novo the facts entitling an applicant to a license, or to continue to operate under a license, must be treated as merely providing procedure by which the proceeding may be brought before the court for an investigation to determine whether the ministerial body' has acted legally and within its powers. In all of such cases, if the ministerial board has conformed to a statutory procedural method, and its decision is supported by substantial evidence, its findings and determination will not be disturbed.”

In affirming the administrative board’s order revoking a dental license, the Supreme Court of Washington held:

“There is a distinction between the types of decisions rendered by differ-' ent administrative agencies. • Some agencies perform judicial or quasi-judicial functions; others exercise powers which are essentially administrative. Agencies exercising essentially administrative functions may, among other things, act as fact-finding bodies to ascertain qualifications of an applicant for a license; or they may act to determine whether the conduct of a practitioner, against whom a complaint has been lodged, conforms to the legislative formula by which the right to a license is fixed. If the power exercised by the agency is essentially administrative, the superior court, upon appeal provided by statute, is limited to a consideration of whether the agency acted', arbitrarily, capriciously, or contrary to, law. (Citing case.)
“The privilege of practicing dentistry is subject to regulation under the • police power of the state. The power conferred by RCW 43.24.110, upon the ■ director of licenses and two members of the profession appointed by the governor as a committee to hear complaints and revoke a dentist’s license for cause, is essentially administrative. This administrative power is not one that courts historically were accustomed to perform or had performed prior to the statutory creation of the committee; nor a power with which the courts could have been invested.” In the Matter of the Revocation of License to Practice Dentistry of Dr., H. N. Harmon, Licensee-Appellant et. al., 52 Wash. 118, 323 P.2d 653.

In Jaffe v. State Department of Health, 135 Conn. 339, 64 A.2d 330, 6 A.L.R.2d 664; the Court held “The revocation of a- certifir cate of registration granted to a physician and surgeon is just as much an administrative matter as is the original grant of it.” Citing cases.

Federal Radio Commission v. General Electric, 281 U.S. 464, 50 S.Ct. 389, 74 L.Ed. 969, involved an application for renewal of a radio license. The statute provided that the reviewing court “shall hear, review and determine the appeal upon said record and evidence, and may alter or revise the decision appealed from and enter such judgment as to it may seem just (44 Stat. 1169)”. The Supreme Court of the United States branded the licensing function as “purely administrative,” interpreted the statute as making the reviewing court “a superior and revising agency”, and accordingly held that the Supreme Court could not review. The Supreme Court layed down the broad proposition in the General Electric Case that a constitutional court “cannot * * * participate in the exercise of functions which are essentially legislative.”

Motion overruled.


author: PRESLAR, Justice.

text:
    William Fred NEUMAN, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 5580.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 2, 1963.
    Rehearing Denied Nov. 20, 1963.
    Judgment Reversed May 20, 1964.
    .See 379 S.W.2d 295.

      John J. Watts, Thomas A. Sneed,. Odessa, for appellant.
    . McDonald, Shafer, Gilliland .& Davis, Odessa, for appellee.
   PRESLAR, Justice.

This is a workman’s compensation case in which the jury, in answering special issues, found that the plaintiff suffered total and permanent incapacity for a period of 52 weeks and partial incapacity permanently. The jury also found that plaintiff’s injury, and the effects thereof, were confined to his right leg, and that he suffered 35 per cent loss of use of such leg. Both parties moved for judgment on the verdict, plaintiff seeking judgment for general injury, and defendant seeking to limit recovery for a specific injury. Defendant’s motion for judgment was granted — that is, plaintiff was allowed recovery only for injury to a specific member of the body.

Plaintiff, as appellant, assigns three points of error, each of which is directed at the defendant’s two confinement issues and the court’s entering judgment based thereon. Such issues are:

“SPECIAL ISSUE NO. 14
“Do you find from a preponderance of the evidence that the Plaintiff’s injury, if any, and the effects thereof, if ; any, are confined to his right leg?”
To that, the jury answered “Yes”.
“If you have answered the above question ‘Yes’, and only in that event, then answer the following special issue:
“SPECIAL ISSUE NO. IS
“What do you find, from a preponderance of the evidence, to be the loss of use, if any, to Plaintiff’s right leg? Answer in percentage, letting 100% represent total.”
To that, the jury answered “35%”.

Appellant’s Points of Error numbers One and Two complain of the trial court’s overruling his motion for judgment because there was no evidence and insufficient evidence to warrant the submission of the above issues. Both of these points are overruled. Suffice it to say that a reading of the complete Statement of Facts satisfies us that there is ample evidence to warrant the submission of the issues to a jury.

Appellant’s third point of error is as follows:

“The trial court erred jn failing to grant Plaintiff’s Motion for New Trial because, even if the issues of confinement were raised by the evidence, they were improperly submitted to the jury and, as submitted, could not support a Judgment such as the one rendered.”

We agree with appellant that the issues could not support the judgment which was rendered, for they are not the ultimate fact issues necessary to confine plaintiff’s recovery to injury to a specific member of the body under the facts of this case. Proper issues were tendered; but were refused by the court, so that the case will be remanded for trial on the controlling issues raised by the pleadings and the evidence.

It is the duty of the trial court to submit all controverted ultimate fact issues made by pleadings and evidence, and submission must be made in such manner as to fairly submit issues made by both plaintiff and defendant. Rules of Civil Procedure, Nos. 277, 279; Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S. W.2d 651 (S.Ct., 1952). Plaintiff pleaded general injuries, among which were injuries to his right leg, but it is not a case where injuries to a specific member are alleged to extend to and affect other parts of the body. It was tried on the theory of general injuries, and recovery was not sought for injury to a specific member. Defendant pleaded “that if the Plaintiff sustained any accidental personal injury, same was confined to and limited to the right leg, and that any effects thereof were confined and limited to said member, which is and was a specific injury within the meaning of the Workmen’s Compensation Act; that any incapacity suffered was temporary in its nature and never permanent, and at the most resulted in the partial loss of the use of said member and not in total loss of the use thereof, and such partial, incapacity has subsided and decreased by degrees to complete termination and recovery; that further, in the alternative, defendant says that any incapacity which plaintiff has had in the past or may have in the future has been and will be caused solely by the incapacity and/or injury to said member; further, in the alternative, defendant says that any incapacity which Plaintiff has had in the past or may have in the future has been and will be caused solely by the loss of the use of his right leg. * * Pertinent findings of the jury were, in Issue No. 1, that the “personal injury” of August 29, 1959 resulted in “total incapacity”; and in Issue No. 2, that the “personal injury” was a producing cause of the “total incapacity”, and by appropriate issues the jury further found that “the injury” of plaintiff was the producing cause of partial “incapacity” which partial “incapacity” was permanent. It is readily noted that these findings, standing alone, would allow plaintiff to recover for a general injury; but the judgment limits Iris recovery to an injury to a specific member because of the jury’s finding that his “injury” and “the effects thereof” were limited to the right leg. As stated, we think that is not the true test of defendant’s burden in seeking confinement. His burden should be on a par with plaintiff’s, in that he should be required to go before the jury with the same language and seek a finding that the “incapacity” of plaintiff was due solely to the incapacity or loss of use of the leg. We "think the defendant’s requested Issue No. 6 was proper and that it should have been submitted instead of the above-quoted Issue No. 14. Requested Issue No. 6 was:

“Do you find from a preponderance of the evidence, that the incapacity, if any you have so found, is not caused solely by the incapacity or loss of use, if any, to the Plaintiff’s right leg?”

That should then be followed by the issue submitted as No. 15.

There can be no doubt that if the insurer desires to limit the claimant’s recovery to a specific injury under Section 12 of Article 8306, or otherwise separate the effects of general and specific injuries, -the burden rests with the insurer to either request appropriate special instructions to the jury, in connection with the general injury issue, or plead, prove and secure jury findings so limiting the claimant’s recovery. McCartney v. Aetna Casualty & Surety Co., 362 S.W.2d 838 (S.Ct., 1962).

Prior to the 1952 decision of the Supreme ■Court, in Texas General Indemnity Co. v. Scott (supra), there had been considerable confusion as to the proper method of submitting the question of incapacity being confined to a specific member, or the total incapacity of a party being caused solely by an incapacity to a specific member. That case and the following are our authority for the above form of submission: Texas Employers Ins. Assn. v. Yother (Civ.App., 1957), 306 S.W.2d 730 (wr. ref., N.R.E.) ; Texas Employers Ins. Assn. v. Hinkle (Civ.App., 1957), 308 S.W.2d 543 (wr. ref., N.R.E.) ; McCartney v. Aetna Casualty & Surety Co. (supra).

Except for two cases, which will be discussed later, all of the cases cited by ap-pellee as contrary to our holding were decided prior to the 1952 decision by the Supreme Court in Texas General Indemnity Co. v. Scott, supra, and are no longer controlling. Of the two cited cases which are subsequent to that decision, the case of Matthews v. General Accident Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251 (S.Ct., 1961) was decided on the basis that the issue sought by the defendant was not supported by the pleadings and was not tried by consent, so that the trial court was justified in not submitting it. The court stated that it was not necessary for them to decide whether the issue should have been given if it had been supported by the pleadings. The other case cited by appellee is Texas Employers Insurance Association v. Hinkle (supra), decided by this court and tried by the same trial court and law firms as the instant case. While the contentions of the parties were reversed in that case from the instant case, the holding is exactly the same. Judgment was entered that the plaintiff recover for total and permanent disability, and this court reversed and held that where injured employee did not allege, and case was not tried on theory that injury to left foot extended to and affected other parts of his body, and two separate and wholly disconnected injuries were alleged, one a special injury and another a general injury, district court erred in failing to submit Texas Employers’ Insurance Association’s theory of the case that incapacity of employee to labor was caused solely by loss of toes of left foot or loss of use of left leg below the knee, and that his recovery should be confined to specific injury. Issues like numbers 14 and 15 of this case were submitted and found against the defendant, and on appeal the plaintiff contended they were sufficient; and, in holding they were not equivalent to the requested issues, this court, speaking through Chief Justice Hamilton, said:'

"Appellee contends that the court, having submitted the issues, and the jury having answered that the injury and the effects thereof were not confined to the loss of the toes of the left foot or the loss of the use of the left leg below the knee, was equivalent to the requested issues of appellant. With this we cannot agree.”

That is the same question and the same holding as here announced.

Prior to the submission of the issues to the jury, plaintiff excepted to them on the basis that there was no evidence, and in the alternative insufficient evidence, to warrant submission of Issues Nos. 14 and IS. These were plaintiff’s only exception to the court’s charge, and they were overruled. Appellee contends that appellant has waived his right to further complain of the form of the issues. That is true as to such issues as were submitted, but our holding is that a different issue should have been given and that the burden was on defendant (appellee) to submit such issue to sustain his theory of the case. Naturally, appellant could not object to an issue not given.

All points having been disposed of, the judgment of the trial court is reversed and the case remanded.

ON MOTION FOR REHEARING

Appellee, on motion for rehearing, urges that since the appellant did not object to the failure of the trial court to submit the proper issue, it must be deemed to have been found by the court so as to support the judgment within the purview of Rule 279, Texas Rules of Civil Procedure. We do not view this as a case which invokes the implied findings portion of that rule. The judgment clearly reflects that the court relied on the finding of the jury to the one “defensive issue” submitted, and not on some findings on his own on an unsub-mitted issue. We could agree with appellee if the ground of defense consisted of several issues, or component parts of one issue, and one was omitted. In such a case, the jury having answered the issues submitted, there could be an implied finding by the court as to the omitted element, so that it would be sufficient to form the basis for a judgment. Such is the holding in Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, in which the Supreme Court construed Article 2190, which case and article are the basis of Rule 279. The rule itself, by its very wording, takes our case out of the implied findings category.

The more difficult problem presented by appellee’s motion for rehearing is the question of whether appellant has waived his right to assert his third point of error on appeal where he failed to object to the non-submission of his opponent’s essential issue. In an exhaustive search of the decisions, we find no case passing on the exact situation presented by the case at bar. If we be right in our conclusion that the defensive issue submitted was not the proper one, then we are called upon to uphold an erroneous judgment for the sole reason that the complaining party failed to object to the absence of a material issue of his opponent. Added to that is the fact that the opponent had already excepted to the court’s failure to submit the issue. Does Rule 279 require the loss of the right to have the judgment reviewed because of the failure to say “me too” when the opponent excepted to the court’s action? The laudable object of this rule of procedure seems to be to require the parties to make their objections known to the trial judge so that he can correct them prior to the submission to the jury. In this case that was done when the defendant tendered his Issue No. 6, and excepted to the court’s refusal of it. We believe that under sttch circumstances the purposes of the rule were sufficiently met, so that plaintiff-appellant has not lost his right of review on appeal. A somewhat similar situation is found in the case of Pacific Employers Ins. Co. v. Barnett, 230 S.W.2d 331 (Civ.App., 1950, ref. n. r. e.), where the trial court submitted an issue as to good cause for failure to file a claim within six months, and the issue should have been good cause for failure to file a claim for the period of time from the date of injury to the actual date of filing. There, as here, the appellee sought to avoid reversal by pointing out that there had been no objection to the issue, and also relied on the doctrine of implied findings. Review was allowed and the case reversed for the error of submission and other errors not material here.

We adhere to our original opinion. The motion for rehearing is overruled.