author: PALMORE, Judge.

text:
    Everett H. LANNING et al., Appellants, v. Roberta BROWN et al., Appellees. Roberta BROWN, Appellant, v. Bessie STEFF, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    Rehearing Denied May 1, 1964.

      Robert P. Hobson, Fielden Woodward, John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for Lanning and Jellico Coal & Coke Co.
    R. D. McAfee, Edward T. Ewen, Jr., Louisville, for Roberta Brown.
    Victor W. Ewen, W. Carey Thompson, Jones, Ewen & MacKenzie, Louisville, for Bessie Steff.
   PALMORE, Judge.

Roberta Brown, guest in an automobile ■driven by Bessie Steff, was injured when the Steff car collided at an intersection with a vehicle driven by Everett Lanning as the .agent of Jellico Coal & Coke Company. Her action for personal injuries against both drivers and the Jellico company re-.suited in a verdict and judgment in the .amount of $18,000 against Lanning and his • company, who will hereinafter be called the . appellants.

The accident occurred at 21st and Chest- ■ nut Streets in. Louisville. 21st was one- - way north and Chestnut one-way east, with a traffic light at the intersection. Mrs. Steff and Mrs. Brown were on their way downtown on Chestnut. As they approached 21st Street Mrs. Brown, who had written down some measurements on a piece of paper preparatory to buying some clothing for her son, was checking the contents of her purse to make sure she had not left this paper at home. Consequently, she did not notice upcoming developments at the intersection and was unable to say which of the drivers had the green light. Appellants contend the trial court erred in refusing to instruct on whether Mrs. Brown was contributorily negligent, citing Mattingly v. Meuter, 275 Ky. 294, 121 S.W.2d 676, 678 (1938); Richie v. Chears, Ky., 288 S.W.2d 660 (1956) ; and Conley v. Lovely’s Adm’r, Ky., 269 S.W.2d 228 (1954).

In each of the cases cited there was evidence of conditions such as- high speed or drowsiness of the driver actually known to the passenger prior to the accident, from which a jury could reasonably .find that the passenger, being forewarned,- should have taken preventive steps. But in the absence of circumstances that would serve to put him on the alert the law does not require a passenger to maintain a lookout. As Mrs. Brown had no particular occasion to be keeping a lookout there was no basis on which she could have beenv found negligent in failing to do so. Refusal of the instruction was proper.

Mrs. Brown suffered numerous injuries as the result of which her medical witness, Dr. Zoeller, estimated that “she has a 30 to 35% partial permanent impairment to the body as a whole.” In the course of his X-ray examinations the doctor had observed evidence of pre-existing “wear- and-tear” arthritis and some degeneration of an intervertebral disc, all'of which was disclosed in his testimony to the jury. In an effort to emphasize the arthritic condition, counsel for appellants sought to question Mrs. Brown concerning, statements made in her discovery deposition to the effect that Dr. Zoeller and his associates had said (after the accident) her back and shoulder trouble were attributable to arthritis. This evidence was excluded, and we arc somewhat at a loss to comprehend under just what theory appellants contend it was admissible. What the doctors told Mrs. Brown was hearsay, incompetent unless for the possible purpose of contradicting testimony of the person or persons who said it. Dr. Zoeller was the only one of them to testify, and he was not questioned with respect to what he told Mrs. Brown. Hence no foundation was laid to impeach him. CR 43.08. Moreover, as his testimony made it clear that she had a pre-existing arthritic condition it would not have been materially contradicted by what Mrs. Brown said in her deposition.

Other statements alleged to have been made by Mrs. Brown, indicating she had suffered back trouble for some time before the accident, were properly admitted. But even if otherwise admissible, what the physicians told her after the accident would not be contradictory of her testimony denying that she had previously suffered back trouble. Therefore, not only do we find no error in the exclusion, but no prejudice either.

The trial of this case was held on January 8, 9 and 10, 1962. Appellants’ motion for a new trial, served by mail January 16 and filed January 17, listed as one of its grounds misconduct of the trial court in advising the jury panel to the effect, “You will he given a blood-curdling oath but you do not have to pay any attention to it.” This ground was not supported by any entry of record, but on January 31 an affidavit of counsel was filed, and it has been treated (apparently by common consent) as duly submitted in support of the motion and as an authenticated record of what took place. The trial judge made and filed a memorandum declining to counter the affidavit and reciting that the remarks in question had been made “to the incoming veniremen immediately prior to the presentation of the instant case” and in the presence of the appellants’ counsel. The memorandum further stated that the matter had not been brought to the attention of the court prior to the motion for new trial.

Appellants insist that the objectionable statement of the court to the panel from which the jury was immediately thereafter selected and sworn destroyed the efficacy of the oath, violating Const. § 232 and, in fine, abridging the right of trial by jury guaranteed by Const. § 7.

Certainly it would be improper for a trial court to give prospective jurors to understand that they need not take seriously the oath required to be given them before hearing a case. We are not persuaded that the remarks by the court in this case, lifted out of context, conveyed that impression. But if counsel for appellants really entertained any misgivings in that respect they should have given the court a timely opportunity to correct it.

In Collins v. Sparks, Ky., 310 S.W.2d 45 (1958), it was held that objection to a remark by the trial court indicating disbelief of a witness could be first raised in a motion for new trial. Cf. CR 61.02. It was also more broadly stated in the opinion that since a trial judge is presumed to know how to conduct a fair trial it is unnecessary to call to his attention, by timely objection, his own remarks if they are so manifestly prejudicial that they come within the purview of CR 61.02.

There were two basic circumstances in the Collins case which underlay its rationale. One was that the unfortunate remark from the bench was such that an admonition would not have erased the prejudicial effect from the minds of the jurors and, further, an unsuccessful objection might well have aggravated the harm already done. The other was that the remark was of such palpably prejudicial character that the judge was bound to be cognizant of his error. We do not think the principle of that case fits this one. The alleged error here was colnmitted prior to the swearing of the jury, before the trial. What harm could have been done by a simple request of the court to ask the jurors, when sworn or immediately thereafter, if they fully understood that they were bound by the oath ? Indeed, the matter could have been (but was not) explored on voir dire. If there was a misunderstanding arising out of the court’s previous discussion by way of indoctrinating the new jurors, it certainly was remediable and this was the time to do it.

It would appear also that since the objectionable remarks were made as part of a general discourse the trial court did not realize that he may have imparted to the prospective jurors an erroneous and improper impression. Under the circumstances it is not all clear that he should, must, or was bound to have known that he had invested the proceedings with a substantial defect. Again, it would not have hurt appellants to call it to his attention.

It is shown by the record that the jury was sworn, and it is conceded that the oath was in the prescribed statutory form. Appellants seem to have been satisfied that they were receiving a due and proper jury trial according to the “ancient mode” until the verdict was read out. We are not convinced otherwise.

In what has been said thus far we have dealt with this question on the merits. From a technical standpoint, even if it should be conceded that the statement of the trial court did in fact create in the minds of the jurors an attitude of irresponsibility toward their oath, it was a matter going to their fitness to serve, hence required to be raised by challenge before the jury was sworn. KRS 29.025(2). As the late Judge Carroll observed in' Crosthwaite v. Crosthwaite, 151 Ky. 364, 151 S.W. 945, 948 (1912), “counsel for the unsuccessful party will not be heard to complain, after they have lost the case, that a juror was disqualified for service, when they accepted him with knowledge of his disqualification or failed to show his disqualification by asking such questions as they at the time knew would develop it.” See also Beach v. Commonwealth, Ky., 246 S.W.2d 587, 590 (1952).

At the close of Mrs. Brown’s direct examination on January 8, 1962, her counsel produced a chart listing the special damages to which she had testified, and upon objection by appellants the trial court directed that it be withheld for the time being. When court reconvened on the morning of January 9 to continue with the trial, her attorneys were permitted, over a renewal of the objection, to set up the chart so that it could be and was seen by the jury during the remainder of the day and until the trial ended on the next day, January 10. The figures shown on this chart were as follows:

Medical Expenses
General Hospital $ 19.00
Dr. Kinsman 35.00
Norton Infirmary 466.10
Drs. Fischer, Leatherman & Zoeller 468.50
Back brace 46.35
Heat lamp 6.95
Heating pad 5.95
Transportation to Dr. 32.20
Special nurses 76.00
Medicines 100.00
Lost Wages 1993.60
Help at home 1075.00
4324.65

Appellants contend that the continuous appearance of the chart in view of the jurors after the witness had left the stand served unfairly to emphasize the damages.

The use of testimonial charts is proper. Meglemry v. Bruner, Ky., 344 S.W.2d 808 (1961). Though it was not officially admitted in evidence as an exhibit, the enumeration of special damages was nothing more than a summary of Mrs. Brown’s testimony and, as such, could have been so admitted in connection with it. But it is quite another thing to allow a particular segment of testimony to be advertised, bill-board fashion, after the living witness has vacated the stand and it is not being used in connection with the subsequent testimony of other witnesses. We think it is error to do so, but are not persuaded that the error was prejudicial in this instance. Since no real conflict developed with regard to the evidence of special damages (though the jury may well have been skeptical as to the cost of “help at home”), there was nothing of a countering nature over which it could have had an undue or belittling prominence. “Emphasis” is relative, requiring comparison. Where there is no basis for contrast or comparison there can be no undue emphasis. It may be argued that by keeping the damages before the jury the chart tended to overshadow the importance of the other issues in the case, but we doubt that a properly instructed jury, after argument by able counsel, would be so ingenuous as to decide other issues erroneously merely because it had the special damages so well in mind.

We consider the possibility of prejudice from the chart too remote to warrant a reversal.

The remaining questions in the case involve several comments made in the closing address to the jury by Hon. Davis McAfee, one of Mrs. Brown’s attorneys.

The first was a statement to the effect that “this is a great big case because Mr. Robert Hobson is over here defending it * * * and not one of the young lawyers or other lawyers in his office.” It is beneath the dignity of the profession for lawyers to deal in the personalities of each other in the course of a trial (or elsewhere, for that matter), and we condemn it. However, counsel for appellants had himself cast the first stone in his opening statement to the jury by accusing Mrs. Brown’s lawyers of trying to make “a great big case out of an ordinary case.” Mr. McAfee prefaced his remark by recalling that statement, and in this frame of reference we do not consider it to have been prejudicial. It cannot be fairly equated with the comment found prejudicial in Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609, 612, 141 A.L.R. 105, 110 (1942), to the effect that defense counsel’s identity signified that a verdict “would not hurt” his client. There the connotation focused on who would pick up the check if the defendant lost; here it was directed to the seriousness of the plaintiff’s claim.

In his opening statement to the jury counsel for appellants indicated that someone expected to testify for the plaintiff was not telling the truth, and in his closing statement suggested unmistakably that the witness Mrs. Burns was the guilty party. Plaintiff’s counsel, in his summation, rejoined as follows:

“I think people who see accidents ought to give their names and when they do, they ought not to be abused and called a liar when they do.”

Under the circumstances, our opinion is that this remark was within the broad latitude a lawyer must be allowed in arguing his client’s case.

The next excerpt of counsel’s final address for Mrs. Brown to which objection was raised had to do with the gravity of pain:

“ * * * Death is a relief from pain. One of the most horrible of all tortures and you will have read this or heard of it; one of the most horrible of all tortures is the water torture, where a man is tied down and a drop of water permitted to drop on his body.”

After an objection was overruled he went on to say in substance that he was not contending that Mrs. Brown was now suffering the agonies of death, but that she did have constant pain for which she ought to be amply paid. Again, we are unable to say that such comments were beyond the pale of legitimate argument.

The last item is the toughest to judge:

“If we give her — use any figure— I wouldn’t suffer the pain she’s going through for fifty dollars a day.”
Mr. Hobson: “If Your Honor, please, — ”
Mr. McAfee: “Twenty dollars a day? Ten dollars a day?”
Mr. Hobson: “We object to that argument.”
The Court: “I’ll overrule the objection.”
Mr. Hobson: “As to what he would take?”
The Court: “That’s right.”
Mr. Hobson: “You think that’s proper measure of — •”
The Court: (Interrupting) “I have overruled the objection.”
Mr. McAfee: “I will say this: I don’t think Mr. Hobson would go through this for fifty dollars a day.”
Mr. Hobson: “I object to that argument.”
Mr. McAfee: “I don’t think anybody would take any money to go through the suffering she’s got.”
Mr. Hobson: “I want Your Honor to rule on my objection.”
The Court: "The objection is overruled. Go ahead, Mr. McAfee.”
Mr. McAfee: “I don’t think anybody would want to go through it for any amount.”

There have been a number of cases, some from this court, condemning the “Golden Rule” tactic of asking the jurors to fix damages according to what they would take for similar injuries to themselves or to members of their families. See, for example, Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242 (1946). We think it is just as bad for counsel to speak in terms of what he or opposing counsel would or would not take, and that the objection should have been sustained and the jury admonished accordingly. However, the size of the verdict (signed by 10 jurors) does not indicate that the jury was deluded by this argument, and we are of the opinion that the possibility of prejudicial effect is insufficient to justify reversal. We realize this is a matter of judgment, each case being different from the others, but it falls our lot to make the last decision, and this is it.

The relief sought by Mrs. Brown’s cross-appeal against Mrs. Steff being contingent on a reversal in favor of appellants, it is unnecessary for us to consider it.

The judgment is affirmed on appeal and cross-appeal.

      . At the bottom of the chart the amounts sought for pain and suffering and for loss of earning capacity were listed, but from the context of the transcript we infer that this portion was not displayed. The brief for Mrs. Brown explains that a cover was taped over it.

      .There seems to be very little authority on the subject. This, however, is our view.

      . Again, there is a dearth of precedent to the point.

      . The jury was duly admonished to disregard the remark.

      . $18,000, of which at least $3,000 must be attributed to the special damages. Mrs. Brown had a life expectancy of about 32 years and, according to Dr. Zoeller, was 30 to 35% permanently impaired.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Vernon JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    Rehearing Denied May 1, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamlcin, Jr., Asst. Atty. Gen., Frankfort, Larry C. West,’ Dept, of Highways, Covington, for appellant.
    Jesse S. Hogg, Winchester, for appellees.
   MONTGOMERY, Judge.

Vernon Johnson et al. were awarded $5,000 for land taken and for resulting damages in a condemnation action instituted by the Department of Highways. The Department has appealed.

Appellant filed briefs on October 5, 1962, with appropriate notice. Appellees have failed to file a brief. Pursuant to RCA 1.260(c) (3), the failure of appellees to file briefs is regarded as a confession of error, requiring a reversal without consideration of the merits of the case.

Judgment reversed.


author: CULLEN, Commissioner.

text:
    RED ARROW DELIVERY, INC., et al., Appellants, v. GREYHOUND CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    Rehearing Denied May 1, 1964.

      Robert M. Pearce, Louis J. Amato, Dept, of Motor Transportation, Frankfort, for appellants.
    John Hopkins, Frankfort, Lively Wilson, Louisville, Fred Bradley, Frankfort, for appellees.
   CULLEN, Commissioner.

Over the protests of the Greyhound Corporation, the Railway Express Agency, and several common carrier truck lines, the Department of Motor Transportation granted a regular route common carrier truck certificate to Red Arrow Delivery for operations over 25 routes covering substantially all of the inter-city highways within a 50-mile radius of Lexington, with authority to serve off-route points within three miles of the designated routes. The certificate, designed to authorize a parcel delivery service in the Lexington trading area, was restricted to the handling of items of freight weighing. SO pounds or less and not exceeding 108 inches in length and girth combined, each item being considered as a separate shipment for rate application purposes.

Upon appeal to the circuit court by the protesting carriers, judgment was entered setting aside the order of the department, on the ground that the certificate in practical effect authorized transportation of general commodities over irregular routes, which type of operation is not permitted under the Kentucky Motor Carrier Law. Red Arrow has appealed from that judgment.

In general, KRS 281.011 restricts the issuance of common carrier certificates to persons who engage in transportation “over regular routes”. Certificates for irregular route operations may be issued only to (1) persons holding irregular route common carrier authority granted by the Interstate Commerce Commission, (2) taxicabs, (3) local cartage vehicles, and (4) persons transporting exempted commodities. Thus, a certificate may not be issued for intrastate transportation of general commodities over irregular routes outside of a local cartage area (within a city and its commercial area).

Admittedly, each of the 25 routes covered by the certificate granted to Red Arrow is a “regular route” from the standpoint of geography, in that it has a fixed course and fixed termini. However, it is the contention of the appellees that “regular route” as used in the statute contemplates regularity of operations over the route as well as a fixed course and fixed termini. The question therefore is: Does “regular route” embrace only where the carrier will go or does it further embrace how and when he goes?

Red Arrow proposes to operate a parcel delivery service between the various points on the designated routes, which will be a daily service in the sense that any day there is a parcel to be delivered to a point on a route a truck will operate over that route.. However, trucks will not operate every day on every route, nor will the trucks follow a set pattern or direction in traveling the-rmites.

In our opinion, the significant feature of regular route service is that the-carrier holds out to the public that he will transport between fixed points, promptly, such goods as are tendered to him for transportation. Whether he has a fixed schedule for either time or direction of travel over each route does not seem to us to be a controlling factor.

The fact that the Red Arrow certificate covers 25 routes, which in practicality permits operations to almost every point in the Lexington trading area, does not require the conclusion that an irregular route operation has been authorized. We do not conceive how the adding together of 25 separate regular routes changes their character as regular routes.

We have considered the tests for distinguishing between regular route and irregular route operations as laid down by the Interstate Commerce Commission in Transportation Activities of Brady Transfer & Storage Company, 47 M.C.C. 23. We believe that the operations of Red Arrow reasonably may be classed as regular route operations under those tests.

The appellees point to the fact that the Interstate Commerce Commission issues irregular route certificates for parcel delivery services, and they argue that this shows-that the Commission considers such operations to belong in the irregular route category. However, the Interstate Commerce Commission has authority to issue either regular route or irregular route certificates, so the fact that the parcel delivery services-have obtained irregular route certificates may be considered to indicate nothing more than that the carriers preferred to have-that kind of certificate. ' ;

The Department of Motor Transportation has broad authority to regulate the motor carrier industry. The courts should not narrow that authority by unduly ■strict interpretation of the governing statutes. The issuance by the department of a particular kind of certificate should not be held to be beyond the statutory power of the department unless the limit on the power is clear and plain. Here, we cannot find in the words “over regular routes,” contained in KRS 281.011, a clear and positive meaning that schedules as well as courses and termini must be regular.

It is our conclusion that the circuit court ■erred in holding that the Department of Motor Transportation did not have statutory power to issue the certificate to Red Arrow.

On the appeal to the circuit court the contention was made that the evidence did not support the findings of the Department of Motor Transportation that the existing service was inadequate and that the proposed service was required by public convenience and necessity. The circuit court did not pass on that question. To expedite the disposition of this case we shall treat the question as properly before us for review.

We shall consider first the matter of inadequacy of existing service, keeping in mind that three different kinds of protesting carriers are involved. As concerns the regular truck operators, the Department of Motor Transportation found that not only do they not render a parcel delivery type of service but they have in effect established an embargo against small package shipments by establishing minimum rates that are economically prohibitive of small shipments. The evidence supports that finding.

As concerns Railway Express Agency, the department found that it also has high minimum rates designed to discourage small shipments; that its service operates •primarily in conjunction with or coordinated with rail service; and that its pickup and delivery service is limited. The evidence supports those findings.

As concerns Greyhound Corporation, the department found that it has no pickup and delivery service; that it primarily is a carrier of passengers and its carriage of property is limited to express shipments of an emergency nature; and that it is not in a position to afford a general commodity service. The evidence supports those findings.

There is ample basis then for a holding that the existing service is inadequate, because in reality the kind of service proposed is not being rendered at all, and for a holding that the inadequacy is due to such causes and has persisted for such period of time as to establish unwillingness of the existing carriers to render the service. See Eck Miller Transfer Co. v. Armes, Ky., 269 S.W.2d 287.

This brings us to the matter of convenience and necessity. The proposal is for a specialized type of service not now being provided by other carriers. The appellees maintain that the proposed service is in the nature of a frill; that at the most it could be considered a matter of mere convenience and in no sense a necessity. However, the Department of Motor Transportation found that the service would fill a distinct need, and that it would introduce a desirable improvement and augmentation in the transportation field. The findings have support in the testimony of a number of shippers concerning the usefulness of such a service to them.

It is true that there was not evidence showing a specific need for service to or from every point on the 25 routes. However, in our opinion the real issue concerned the necessity for the kind of service in the area and there was no necessity to show a specific need at each individual point. The situation here, involving a new type of service, differs from the ordinary situation where the question is whether particular places need more service of the same type they have been receiving.

It is our conclusion that the evidence sustains the finding of inadequacy of existing service and the finding of convenience and necessity.

The contention is made by the ap-pellees that there was insufficient proof to sustain the finding that the proposed operation would be economically feasible. There was evidence that Red Arrow has successfully operated a local parcel delivery service in the Lexington area for a substantial period of years, and that operations similar to those proposed have been carried on profitably in many other states. We think this was sufficient.

The judgment is reversed with directions to enter judgment upholding the order of the Department of Motor Transportation.


author: WALKER, Justice.

text:
    Milton KAINER et al., Petitioners, v. James W. WALKER, Respondent.
    No. A-9605.
    Supreme Court of Texas.
    Feb. 12, 1964.
    Rehearing Denied April 15, 1964.

      Bryan & Patton and Julietta Jarvis, Houston, for petitioners.
    Hill, Brown, Kronzer, Abraham, Watkins & Steely, Plouston, for respondent.
   WALKER, Justice.

This suit was brought by James W. Walker, respondent, to recover for damages alleged to have been sustained in an inter-sectional collision between the automobile he was driving and a truck owned by Milton Kainer and driven by the latter’s employee, Robert Miles. Kainer and Miles were defendants in the trial court and are petitioners here. The trial court rendered judgment for respondent on the jury verdict, and the Court of Civil Appeals affirmed. 366 S.W.2d 249.

Negligence on the part of Miles was alleged by respondent only in general terms, and petitioners did not except to the pleading. Although the evidence will support findings that Miles was negligent in a number of different respects, no specific primary negligence issues were submitted to the jury. The judgment in respondent’s favor is based on the jury’s findings in response to Special Issues Nos. 1 and 2: (1) that Miles “failed to exercise that degree of care which would have been exercised by a reasonably prudent person in the exercise of ordinary care under the same or similar circumstances,” and (2) that such failure was a proximate cause of the collision. Petitioners objected to each of these issues on the ground that the same were multifarious and duplicitous and an improper blanket submission of the issues of negligence claimed by respondent.

It has often been held that both primary and contributory negligence should be submitted to the jury by means of special issues relating to specific acts or omissions raised by the pleadings and evidence. See Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Blythe County Line Ind. Sch. Dist. v. Garrett, Tex. Civ.App., 232 S.W.2d 248 (no writ). These and a number of other cases cited by the parties are not necessarily controlling here, because in each of them the pleading was specific or a general plea was attacked by special exception or specific issues were submitted.

In Texas & N. O. R. Co. v. Hayes, 156 Tex. 148, 293 S.W.2d 484, no exception was taken to a general plea of contributory negligence. A specific contributory negligence issue was submitted without objection, and a general submission requested by the defendant was refused. It was held that the defendant was not entitled to a general submission because the only issue of contributory negligence raised by the evidence had been submitted specially. Respondent says that the reasoning of the Court in that case leads to the further conclusion that the defendant would have been entitled to a general submission if more than one specific issue had been raised by the evidence. He argues and the Court of Civil Appeals held that if either party pleads primary or contributory negligence generally arid the pleading is not attacked by special exception, such party has the right to have the case submitted to the jury in that form. We do not agree.

There is another case in which contributory negligence was alleged in general terms and the plaintiff did not except to the pleading. Contributory negligence was then submitted generally; the defendant made no objection to the general submission but did request a cluster of specific issues dealing with the alleged failure of the plaintiff to sound the horn of his automobile. It was held that the trial court erred in. refusing to give the requested specific issues. Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 S.W.2d 877. See also Southern Iron & Machine Co. v. Portugal, Tex.Civ.App., 53 S.W.2d 685.

When a person who has alleged negligence in only general terms may thus demand a specific submission, we are at a loss to understand why the adverse party should have any different treatment. Under the provisions of Rule 277, Texas Rules of Civil Procedure, either party has the right to insist that specific issues 'raised by the pleadings and evidence be submitted distinctly and separately. It is well settled, moreover, that a general plea of either primary or contributory negligence, when not excepted to, is sufficient to warrant submission of the issue either generally or in such groups of specific issues as may be raised by the evidence. See Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; Texas & N. O. R. Co. v. Hayes, supra; Agnew v. Coleman County Electric Cooperative, supra; Coleman v. Texas & Pac. Ry. Co., Tex.Civ.App., 241 S.W.2d 308 (wr. ref.). This refers to the sufficiency of the pleading as such to support either form of submission, and does not mean that anyone who goes to trial on an unattacked general plea of negligence is entitled to have the issues submitted generally or specially as he may choose.

The usual reason for excepting to general pleadings is to obtain further information about and narrow the claims or defenses asserted by the adverse party.. One who does not need such information to-prepare for trial will probably permit the pleading to go unchallenged, and in our opinion there is no sound reason for saying that he thereby loses the right to have each controverted and ultimate issue of fact considered and determined separately by the jury. It would be rather strange to requiré a party to take, the court to pass upon, and the opposite party to meet a special exception which serves no purpose whatsoever except to lay a predicate for a procedural right that can and should be asserted later in the trial. We hold that petitioners were entitled to a specific submission of the negligence issues raised by the evidence, and that they could reach the matter by making a proper objection to Special Issues Nos. 1 and 2.

Respondent contends that the objections made by petitioners were too general. He recognizes that ultimately it would be necessary for him to prepare and tender the issues in proper form, but says that where the pleadings are general the objecting party must, as part of his objection to a global submission, point out the issues raised by the evidence. It seems to us that here again an undue burden would be placed on anyone in petitioners’ position by the generality of an adversary’s pleading. The objections made by petitioners were sufficient to direct the attention of the trial court to their contention that Special Issues Nos. 1 and 2 constituted an improper global submission of a number of specific issues which respondent claimed were raised by the evidence. That is all they were required to do. Rule 274, Texas Rules of Civil Procedure. To the extent that Owens v. L. J. Miles Construction Co., Tex. Civ.App., 336 S.W.2d 189 (no writ), and Texas & Pac. Ry. Co. v. Porter, Tex.Civ.App., 360 S.W.2d 568 (wr. ref. n. r. e.), are inconsistent with the conclusions here expressed, such decisions are regarded as unsound and will not be followed.

There is no merit in petitioners’ contention that the verdict will not support a judgment in respondent’s favor without a finding of some act or omission to which the general finding of negligence might be related. The erroneous global submission of the primary negligence issues simply requires that the cause be remanded for a new trial. Point No. 7 in the application for writ of error presents questions that are not likely to arise again. Point No. 9 seemingly raises a “no evidence” question, but when considered in the light of the argument thereunder is really a problem of excessiveness and not within our jurisdiction. This brings us to two questions brought forward for review and on which the district judge will probably be required to rule at the next trial.

•' One of these questions has to do with evidence of an experiment conducted by the investigating officer. The accident occurred at the intersection of Capitol Avenue and ■Wayside Drive. Respondent was driving west on Capitol Avenue. According to his testimony, he waited at the intersection until the traffic light changed to green. In the meantime Miles was driving the Kainer truck west on Harrisburg, which runs parallel to and one block north of Capitol Avenue. Upon finding the traffic light green as he approached the intersection of Harrisburg and Wayside, he turned to his left and drove south on Wayside at about 15 miles per hour. He testified that as he approached and entered the intersection iof Wayside and Capitol Avenue, the traffic "light there was green for north-south traffic. The testimony of the two drivers was thus in direct conflict as to which had the green light.

: The accident was investigated by Officer W. K. Ford of the Houston Police Department. With respondent and Miles in the police car, Ford retraced the route followed by the Kainer truck just prior to the collision. On the basis of this and other similar experiments that were conducted later, Ford testified that anyone who made a left turn on a green light from Harrisburg on to Wayside could not, by driving within the speed limit, reach the intersection of Capitol and Wayside while the traffic light there was green for north-south traffic. Petitioners say that this testimony should not have been admitted because there is nothing in the record to show the timing of the two lights or that the same were in any way synchronized with each other.

Respondent insists that petitioners did not object to the evidence of Ford’s experiments and conclusions on the ground now urged by them, that it can be inferred from Ford’s testimony that there was some established relationship between the two traffic signals, and that the alleged error was harmless in any event. We do not attempt to pass on any of these matters at this time, but it is our opinion that the testimony in question should be excluded in the absence of evidence regarding the timing or synchronization of the phases of the two lights from which it can fairly be said that Ford’s experiments were conducted under conditions substantially similar to those existing at the time of the accident. See Fort Worth & Denver Ry. Co. v. Williams, Tex., 375 S.W.2d 279.

Respondent had an arrested case of tuberculosis, and at the time of the trial was receiving disability payments from the Veterans Administration at the rate of $61.00 per month. The trial court sustained respondent’s motion in limine to require petitioners to approach the bench out of the hearing and presence of the jury and obtain a ruling from the court before making any reference to the fact or the amount of such payments. In the course of the trial but while the jury was absent from the court room, petitioners were allowed to and did interrogate respondent regarding the disability payments to complete their bill of exceptions. They then offered such testimony generally and in the alternative for purpose of impeachment, and also sought to show the fact that respondent was receiving such compensation without disclosing the amount he was paid. The evidence was excluded.

Respondent testified in the presence of the jury as to his physical condition and previous treatment by the Veterans Administration, and petitioners were permitted to interrogate him fully regarding these matters. He did not deny having an arrested case of tuberculosis, and of course was not even asked about the disability payments in the presence of the jury. The excluded evidence thus has no bearing on his credibility except to the extent that it is inconsistent with his testimony that he was in good physical condition prior to the collision. There has been no claim that he received a chest injury in the accident or that his arrested tuberculosis condition was aggravated by the occurrence. He had not been examined by the Veterans Administration, and had not been requested to submit himself for examination, in over twenty years. During most of that period he was employed by and doing heavy work for Reed Roller Bit Company, where he was working at the time of the accident. In these circumstances neither the fact nor the amount of respondent’s disability payments would have been of any real assistance to the jury in determining his physical condition prior to the accident or the extent and consequence of the injuries he received in the collision. The excluded testimony was not admissible either generally or for the purpose of impeachment.

Respondent contended that he was forced to retire because of the injuries received in the accident. Petitioners now say that the excluded testimony was relevant and admissible on the issue of whether respondent would have chosen to retire even if he had not been injured. It was not offered for that purpose in the trial court, and evidence of payments from collateral sources certainly cannot be admitted on any such theory unless the tender is properly limited and the jury is instructed accordingly. We are not prepared to say that evidence of that nature can never be received, but it should be excluded unless clearly relevant and with substantial probative value on some disputed issue in the case. See Eichel v. New York Central R. Co., 2nd Cir., 319 F.2d 12; Page v. St. Louis Southwestern Ry. Co., Sth Cir., 312 F.2d 84; Simmons v. Union Terminal Co., 5th Cir., 290 F.2d 453; A. H. Bull Steamship Co. v. Ligón, 5th Cir., 285 F.2d 936, 88 A.L.R.2d 479. Here the evidence shows that respondent was earning approximately’ $7,000.00 per year, and the fact that he was entitled to a pension of $61.00 a month has very little bearing on the issue of whether he would have decided to retire if he had not been injured. On the present record we think it would have been an abuse of discretion for the trial court to admit the excluded evidence for that limited purpose.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.

ON MOTION FOR REHEARING

In his motion for rehearing, respondent insists that much havoc will be wrought by this decision. He thinks it will be construed as holding that a general objection is always a sufficient predicate for a’ point of error attacking a special issue on the ground of generality or multifariousness. It was not our intention to paint with so broad a brush. We do say that’ when, in an ordinary negligence case such as this, the court prepares to submit an issue which merely inquires, in so many words, whether one of the parties failed to exercise ordinary care, the error may be' preserved at that stage of the proceeding by an objection that the issue constitutes''a'n’ improper global submission. !

Respondent also points out that Eichel v. New York Central R. Co., 2nd Cir., 319 F.2d 12, which was cited in our original opinion, has been reversed. The Supreme Court of the United States held that evidence of disability pension payments under the Railroad Retirement Act of 1937 should not be admitted in an action under the Federal Employers’ Liability Act for the purpose of showing that'tfie plaintiff had a motive for not continuing to work, and stated that the likelihood of misuse by the jury clearly outweighs the value of such evidence. Eichel v. New York Central Railroad Co., 375 U. S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307. This ■provides additional support for our conclusion that the trial court would have erred if • evidence of disability payments had been admitted in the present case.

The motion for rehearing is overruled.


author: HAMILTON, Justice. STEAKLEY, Justice

text:
    Thomas J. LEE, Relator, v. John A. DANIELS et al., Respondents.
    No. A-10045.
    Supreme Court of Texas.
    April 8, 1964.
    Thomas J. Lee, John M. Gilliland, San Antonio, for relator.
    Sawtelle, Hardy, Davis & Goode, James L. M. Miller, San Antonio, for respondents.
   HAMILTON, Justice.

This is an original petition for writ of mandamus by relator Thomas J. Lee to compel John A. Daniels as Chairman of the Bexar County Executive Committee and the Bexar County Executive Committee to omit the name of respondent Sam Jorrie from the official ballot as a candidate for the Democratic nomination for State Representative for the 68th District, Place 3.

Relator is a duly qualified candidate for said office. .Respondent Sam Jorrie was duly elected to the office of County Commissioner, Precinct 3, of Bexar County, Texas, for a term which does not expire until December 31, 1964. However, Sam Jorrie resigned from such position, effective February 1, 1964, and said resignation was accepted by the Commissioners Court and the County Judge appointed his successor on said date of February 1, 1964, which successor immediately qualified and entered into the duties of County Commissioner.

Article III, Section 19, Constitution of Texas, Vernon’s Ann.St., provides:

“No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.”

Article III, Section 4, Constitution of Texas, provides:

“The members of the House of Representatives shall be chosen by the qualified electors, and their term of office shall be two years from the day of their election.”

Articles 1.05 and 1.06 of the Texas Election Code, V.A.T.S. provide, in effect, that no ineligible person shall have his name placed on the ballot at any primary, general or special election.

This case is very similar to the case of Kirk v. Gordon, Tex., 376 S.W.2d 560 (1964), recently decided by this court. In that case, as here, the term of the prior ■office did not expire until December 31, 1964, whereas the term of State Representative begins on the day of election in November. In that case, the office seeker made a resignation effective on November 1, 1964. However, this court held that because the term of District Attorney expired after the beginning of the term of State Representative, the District Attorney was not eligible and could not have his name placed on the primary ballot. We hold that Kirk v. Gordon controls the instant case and that respondent Jorrie is ineligible to the Leg' islature and should not have his name placed on the primary ballot.

Respondent Jorrie argues that this case is not controlled by Kirk v. Gordon by making the distinction that he, Jorrie, is not presently holding a lucrative office under this State, having resigned effective February 1, 1964. Respondent’s argument is that emphasis should be placed on the fact of tenure of office, or the actual holding of the office under the State; that once the holder of an office resigns from said office, he no longer is “holding a lucrative office under * * * this State” within the prohibition of Article III, Section 19, Constitution of Texas. To be ineligible, one must be (a} holding a lucrative office, (b) during his. elective or appointive term, (c) the duration of which overlaps the term of a legislative office to which he aspires, it is argued-

We reject the above argument of respondent Jorrie and hold that resignation at whatever time will not suffice to make-eligible to the Legislature any person who> has qualified for an elective or appointive term to a lucrative office under the State, the term of which does not expire until after the term of the legislator begins. As we said in Kirk v. Gordon:

“ * * * It is the fact that the term of office of district attorney to which he was elected conflicts with the term of office of members of the House of Representatives which controls.” Tex., 376 S.W.2d 562.

Since it is the term which controls, it makes no material difference whether the holder of the office resigns the day after he actually begins holding that office, the day of filing for the office of legislator, or the day before the election at which time the term of office of members of the Legislature begins.

When any person first qualifies for and begins holding a lucrative office under this State, the provision of the Constitution .in. question applies and that person is made .ineligible to the Legislature during the entire term of the office he then holds. When Jorrie was elected County Commissioner of Bexar County and qualified to and began holding such office, Article III, Section 19, Constitution of Texas, be'came applicable to him and said to him, ■“you are not eligible to the Legislature during the term of office of County Commissioner to which you have been elected.” 'Nothing Jorrie did after that time can affect his eligibility. He was already ineligible to the Legislature and the subsequent act of resignation at any point of time cannot thereby make him eligible once more. We construe the constitutional provision as allowing no exceptions as to in- ' eligibility once it has been established.

If the construction sought by respondents ..were adopted by this court, the language “during the term for which he is elected or .appointed” would add nothing to the provision and would be mere surplusage. Without that language, respondents’ contentions would be correct. As a matter of fact, the provision dealing with eligibility to the Legislature in every Constitution ‘¡.from the Republic of Texas to the Constitution of 1869 did not contain the above language. Article III, Section 30, of the Constitution of 1869 read as follows:

“No judge of any court of law or "equity, Secretary of State, Attorney . General, clerk of any court of record, sheriff or collector, or any person hold- ' ing a lucrative office under the United States, or this State, or any foreign government, shall be eligible to the Legislature; * *

We cannot say that the framers of the 1876 Constitution of Texas did not intend the language “during the term for which he is ’ elected or appointed” to add anything to what was otherwise clearly provided in the Constitution of 1869 and prior constitutions.

• • We find the general rule in other juris- • dictions to be that under provisions similar to the above quoted provision from the 1869 Constitution that an officer may resign prior to his election or appointment to another office and be eligible. However, in those jurisdictions having statutes or constitutional provisions similar to the provision now contained in our Constitution the courts invariably hold that the ineligibility created by such provisions exists during the entire period for which the person is elected or appointed, and is not affected by resignation from the first office. Rowe v. Tuck, 149 Ga. 88, 99 S.E. 303, 5 A.L.R. 113. See also State ex rel. Childs v. Sutton, 63 Minn. 147, 65 N.W. 262, 30 L.R.A. 630, and Baskin v. State of Oklahoma, 107 Okl. 272, 232 P. 388, 40 A.L.R. 941.

Writ of mandamus will issue to John A. Daniels as County Chairman of the Bexar County Democratic Executive Committee and the Bexar County Democratic Executive Committee directing each of them to omit the name of Sam Jorrie from the primary ballot' as a candidate for State Representative, 68th District, Place 3.

No motion for rehearing will be entertained.

CULVER and STEAKLEY, JJ., dissenting.

NORVELL, J., not sitting.

STEAKLEY, Justice

(dissenting).

Section 19 of Article III and Section 12 of Article XVI of the Constitution of Texas read, respectively, as follows:

“Sec. 19. No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.”
“Sec. 12. No member of Congress, nor person holding or exercising any -office of profit or trust, under the United States, or either of them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or exercise any office of profit or trust under this State.”

The question in the case is whether a ■presently effective and accomplished resignation from a disqualifying office will remove ineligibility to the Legislature which would otherwise exist under, the above ■provisions. It quite clearly does so under Section 12 of Article XVI. I would resolve the question under Section 19 of Article III in favor of eligibility and in a •manner which would harmonize the two sections. The provisions of Section 12 of Article XVI would thus not be rendered inoperative in part and we would not be .attributing to the framers of the Constitution an intent to propose contemporaneous irreconcilable provisions.

Both sections contain provisions pertaining to eligibility to the Legislature. Section 19 limits its declaration of ineligibility to the term for which a person is elected or appointed and does not literally apply, for example, to one holding over beyond his term. Section 12 is broader and pronounces an office holder ineligible to the Legislature at all time he is holding a disqualifying office. The respondent Jorrie is clearly eligible to the Legislature under Section 12 since he is not holding a disqualifying office; the majority opinion, however, holds him ineligible under Section 19 on the proposition that the ineligibility declared by this section exists for the whole time of a term, notwithstanding a complete vacation and nonholding of the disqualifying office.

The literalness of interpretation given the phrase “during the term for which he is •elected or appointed” in Section 19, as the mainstay of the primary holding of the -majority opinion, renders doubtful the ■corollary holding that the provisions of Section 19 apply only if and after a person • qualifies for an office to which he is elected or appointed. If the section is read literally, ineligibility rests on the fact alone of election or appointment to a disqualifying office and for the time of the term. Nevertheless, recognition of the concept and necessity of “holding” an office is implicit in the majority view that the provisions of Section 19 apply only after qualification for — and hence the holding of — the disqualifying office and not merely, as Section 19 says, “during the term” of election or appointment.

It is my view that Section 19 merely carries the presupposition that a person will assume and occupy an office for the term to which he has been elected or appointed, and that the phrase “during the term for which he is elected or appointed” negates any basis for the contention that a person once a judge, or a Secretary of State, or an Attorney General, or a clerk of any court of record, or the holder of a lucrative office under the United States, or this State, or any foreign government, remains ineligible to the Legislature after the completion of the term for which he is elected or appointed.

Moreover, I am unable to see how ineligibility pertaining to offices in the general class to which Section 19 applies, i. e., holders of lucrative offices, can exist in the absence of an actual holding of the office. The sine qua non of ineligibility pertaining to this class is the holding of the office. If a person is not holding a lucrative office at the time in question, how can Section 19 apply? This is quite apart from the question of whether this is also true of the offices specifically named in Section 19, i. e., judge of any court, Secretary of State, Attorney General, and clerk of any court of record. The majority opinion necessarily equates the offices specifically named and those in the general class, and by so doing regards the phrase “holding a lucrative office” as merely descriptive of the general class. But I am unable to see how the general class can exist at all except and unless there is a holding of a lucrative office.

I must also note that the annotations and decisions of'courts from outside our State cited in the majority opinion do not involve state constitutions containing related provisions comparable to Section 19 of Article III and Section 12 of Article XVI of our Constitution.

Eligibility to hold an office which a person seeks by election should be, and is, a prerequisite to the right of a person to have his name placed upon the ballot at any election. Article 1.05, Vernon’s Annotated Texas Election Code; Purcell v. Lindsey, 158 Tex. 541, 314 S.W.2d 283. It is in the public interest that there be no doubt at the time of an election that a candidate on the ballot will be eligible to assume the office. The voting public should know that he will be so if he is their choice at the polls and the other candidates for the same office are entitled to protection against votes being drawn from them by a candidate who could be ineligible to assume the office. Prospective resignations, therefore should not suffice to remove the ineligibility declared by the constitutional provisions under review. A candidate tendering a future resignation can change his mind and withdraw the resignation if it has not been irrevocably accepted; the body to whom a resignation is submitted may change its mind about accepting it. Accordingly, I do not believe that the future resignation considered in the recent case of Kirk v. Gordon, Texas Supreme Court Journal, Vol. 7, p. 303, was sufficient to remove ineligibility. But in the case at bar the respondent resigned from his office as County Commissioner prior to his application for a place on the official ballot as a candidate for the Legislature; his resignation was forthwith accepted by the Commissioners Court and his successor immediately qualified and assumed the duties of the office. I would hold that respondent thereby became eligible to the Legislature and would deny the petition for writ of mandamus.

CULVER, J., joins in this dissent.


author: GRIFFIN, Justice. STEAKLEY, Justice HAMILTON, Justice

text:
    Doyle WILLIS, Relator, v. William S. POTTS et al., Respondents.
    No. A-10034.
    Supreme Court of Texas.
    April 1, 1964.
    Dissenting Opinion April 8, 1964.

      Fannin & Fannin, Kenneth Spell, Fort Worth, for relator.
    Thomas H. Law, Fort Worth, for respondents.
   GRIFFIN, Justice.

This is a suit by Doyle Willis, relator, for mandamus against William S. Potts as Chairman of the Democratic Executive Committee of Tarrant County, the Democratic Executive Committee of Tarrant County, Don Gladden, Don Woodward and Don Kennard, as candidates for the office of .'State Senator of the State of Texas, asking that the Chairman and the Democratic Executive Committee be required to certify relator as a candidate for the office of State Senator and that his name be placed on the ballot for the May 2, 1964, Democratic primary election as a candidate for such office. The respondent William S. Potts, as Chairman of the Tarrant County Democratic Executive Committee, has advised relator by letter dated March 6, 1964, that relator will not be certified as a candidate, nor will his name be placed on the ballot for the May 2 Democratic primary election.

Respondent Potts in his letter and in his answer to relator’s original petition for mandamus takes the position that relator ■cannot be certified as a candidate for the office of State Senator nor can his name be placed on the ballot for the May 2 Democratic primary because Article III, Section 19 of the State Constitution Vernon’s Ann. St. makes the relator ineligible for the office of State Senator and Articles 1.05 and 1.06 of the Texas Election Code Vernon’s Ann.St., prevent relator’s name from being certified or placed on the ballot for the May 2 Democratic primary. His argument is that relator, having been elected to the office of City Councilman of the City of Fort Worth, for a term of office expiring in April of 1965, and beyond the time when the term of office of State Senator will begin, and which said office is a lucrative office under this state, is ineligible for the office of State Senator under said constitutional provision and under our. holding in the case of Kirk v. Gordon et al., Tex. 1964, 376 S.W.2d 560. (Emphasis added.)

In that case we did hold that under Article III, Section 19 of the Constitution a district attorney whose term of office overlapped with the office of State Representative for which he sought to become a candidate was ineligible to the office of State Representative. In that case there was no question but that the office of district attorney is a “lucrative office under the State.”

The constitutional provision, Article III, Section 19, is as follows:

“No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.” (Emphasis added.)

Any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility.

Relator Willis, as grounds for the relief which he seeks, contends that Art. Ill, Sec. 19 has no application to his situation, because his office of City Councilman of the City of Fort Worth is not an (1) office “under the State” nor (2) a “lucrative” office, within the Constitutional prohibition.

Relator cites the case of Bonner v. Belsterling (1911), 104 Tex. 432, 138 S.W. 571, as one of his authorities supporting his contention that a city councilman does not hold an office “under the State.” In that case the question decided was that a member of the Board of Education, created under the provisions of the Dallas Charter was not an officer of Dallas County but was an officer of the City of Dallas. No one contended that the school board member was either “an officer of the State” or “under this State.” This case, therefore, is not in point. Neither is the case of Town of Sunnyvale v. Dallas County Board of School Trustees et al. (Tex.Civ.App., 1955), 283 S.W.2d 296 in point in this case.

The City of Fort Worth, Texas, is a Home Rule City, created by virtue of Art. XI, Sec. 5 of the State Constitution, and Art. 1165, Vernon’s Texas Civil Statutes. Both of the above provisions limit the power of Home Rule Cities as follows:

“ * * * and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State * *.”

The charter of the City of Fort Worth recognizes — as it must — that the city is created under, the Constitution and laws of the State of Texas as they existed in 1924 when the Home Rule Charter was adopted, and also laws “hereinafter to be enacted by the Legislature of the State of Texas.”

A member of the City Council, before entering upon the duties of his office must take and subscribe to an oath or affirmation •that “ * * * he will support and defend the Constitution and laws of the United States and of the State of Texas *

Art.' Í175, Vernon’s Texas Civil Statutes ■is the source of many of the powers exercised by Home Rule Cities. The very first power set out is “[t]he creation of a commission, aldermanic or other form of gov■ernment; the creation of offices, the manner and method -of selecting officers and prescribing their qualifications, duties, compensation and tenure of office.”

This article also authorizes such cities to provide for, and conduct many governmental activities, highways and control of traffic thereon; promote the public health and the keeping of the peace and many, many other governmental functions belonging to the state government, but which by this article are delegated to Home Rule Cities.

, This Court said in Texas National Guard Armory Board v. McCraw (1939), 132 Tex. 613, 126 S.W.2d 627(23, 24) :

“The State has vital interest in its cities. In its governmental capacity a city is a political subdivision of the State, and in many instances is considered as an agent of the State; and the State may use such agent in the discharge of its duties.” Citing numerous authorities.

In Yett v. Cook (1926), 115 Tex. 205, 281 S.W. 837(13), we said:

“That the state has a justiciable ‘interest’ in its sovereign capacity in the maintenance and operation of its municipal corporations in accordance with law does not admit of serious doubt. Municipal corporations are created for the exercise of certain functions of government. They have a two-fold character, one governmental and the other private, and, in so far as their character is governmental, they are agencies of the state, and subject to state control.” Citing numerous authorities.

This case further holds the mayor of a city is a magistrate, and that the corporation court exercises state judicial power in the name of the state. Further we said:

“ * * * that officers, upon whom rests the duty of administering the franchises of government confided to ' the city, and acting as the state’s agents in custody of public property and in the - performance of' the state’s duties as parens patriae, trustee, guardian, or representative of all the people, should be regularly selected and installed in office in a lawful manner.”

In the case of Orndorff v. State ex rel. McGill (Tex.Civ.App., 1937, writ ref.), 108 S.W.2d 206, the court stated the question to be decided as “Is a county commissioner an officer 'under the Government of the State?’” The court pointed out that “it must be borne in mind that there is a marked difference between the meaning of the phrases ‘under the State Government’ and ‘of the State’ or ‘of the State Government.’ ” The court says that counties are created by the state for the purposes of government. Their functions are political and administrative, and the powers conferred upon them are rather duties imposed than privileges granted; that counties are subordinate to, and creatures of, the state, and therefore are “under the state government” performing duties imposed by the state. It holds that necessarily, therefore, members of the commissioners’ court, the body charged with the performance of the duties imposed from above, are officers under that superior government.

The case states that this holding is in harmony with the weight of authority, and sets out cases from many jurisdictions which sustain the court’s holding. Among these cases are the following having to do with offices of a city government. Attorney General ex rel. Moreland v. Common Council of City of Detroit, 112 Mich. 145, 70 N.W. 450, 37 L.R.A. 211, holding that the mayor of Detroit was an officer “under the state” of Michigan; State ex rel. Young v. Robinson, 101 Minn. 277, 112 N.W. 269, 20 L.R.A.,N.S., 1127, holding that “[ojfficers ‘ of municipal corporations * * * are, in respect to all general laws having force and operating within their' municipality, agents of the state”; Wood v. Miller, 154 Ark. 318, 242 S.W. 573, holding that a municipal judge was an officer “under the' state.”

The court’s reasoning in the Orndorff' case, supra, with regard to counties applies with like effect to municipalities, i. e., Home Rule Cities.

In the beginnings of our state, cities could only be created by legislative action and the act of the Legislature prescribed the officers of the city, and their duties, and conferred upon the city and its officers governmental duties theretofore performed by the state.

Under proper constitutional and legislative sanction, it was provided that cities, towns and villages might be created under general laws passed by the Legislature. In 1913 the Home Rule amendment to our State Constitution was passed and it was implemented by the Legislature by Art. 1165, Vernon’s Texas Civil Statutes, and the other provisions of what is now Chapter 13 of Title 28, Cities, Towns and Villages. The Legislature from time to time has passed laws controlling such Home Rule Cities. Such Home Rule Cities exist solely by virtue of the State Constitution and legislative enactments. These cities are therefore political and governmental subdivisions under this state.

Members of the City Council of Home Rule Cities in the discharge of their duties as such engage in governmental activities and exercise a portion of the sovereign powers of the State. For instance, in the matter of regulations affecting Public Health, traffic regulations, and many others. These are duties which the State owes to its citizens. It follows therefore that Members of the City Council are Officers under this state within the meaning of Art. Ill, Sec. 19 of our State Constitution.

Relator Willis therefore comes within this prohibition of Art. Ill, Sec. 19 of our State Constitution.

The Constitution, Art. Ill, Sec. 19, requires that in addition to relator Willis holding an office “under the state” that such office be a “lucrative” one, before he is rendered ineligible to be elected to the Legislature “during the term for which he is elected or appointed.”

Chapter 3, Sec. 3 of the Charter of the-City of Fort Worth provides: “Each member of the City Council shall receive as compensation for his services the sum of Ten ($10.00) Dollars per diem for each regular meeting attended by him, such compensation in no event to exceed the sum of Five Hundred and Twenty ($520.00) Dollars per annum. In addition to the above, all necessary expenses incurred by the City Council in the performance of their official duties shall be paid by the city.”

Relator contends that such compensation is not “adequate compensation” for the time spent in the performance of his duties as a City Councilman, and therefore he does not hold a “lucrative office” within the constitutional prohibition. . He cites the Wyoming case of Baker v. Board of Commissioners of Crook County (1900) 9 Wyo. 51, 59 P. 797, and the case of State ex rel. Platt v. Kirk, 44 Ind. 401, as so holding.

The case of Baker v. Board of Com-' missioners of Crook County, supra, defines a lucrative office as follows:

“What is a lucrative office seems to be very well settled upon reason and authority. Mr. Mechem says: ‘An office to which salary, compensation, or fees are attached is a lucrative office, or, as it is frequently called, an “office of profit.” The amount of the salary or compensation attached is not material. The amount attached is supposed to be an adequate compensation, and fixes the character of the office as a lucrative one, or an office of profit.’ Mechem, Pub.Off. § 13.” (Emphasis added.)

The court holds that the office of coroner is a lucrative one under the Wyoming statutes.

However, the court holds that even though the office of coroner is a lucrative one, the office of county physician is not an ■ office of the county, and therefore the county physician may be appointed county coroner without violating the statutory provisions under construction. No constitutional provision was involved.

The case of State ex rel. Platt v. Kirk (1873), 44 Ind. 401, holds that a director of the Indiana State Prison may also be a city councilman within the language of a constitutional prohibition of the State of Indiana. The court says that there is no doubt but that the office of city councilman is a lucrative office. The court quotes from authorities as follows:

“An office to which there is attached a compensation for services rendered is a lucrative office. Webster defines the word lucrative to mean ‘yielding lucre ; gainful; profitable; making increase of money or goods; as a lucrative trade; lucrative business or office.’ In Dailey v. The State [ex rel. Huffer], 8 Blackf. 329, Perkins, J., in speaking of the offices of recorder and county commissioner, said: ‘We think, also, they are lucrative offices. Pay, supposed to be an adequate compensation, is affixed to the performance of their duties. We know of no other test for determining a “lucrative office” within the meaning of the constitution. The lucrativeness of an office;; — its net profits — does not depend upon the amount of compensation affixed to it. The expenses incident to an office with a high salary may render it less lticra-tive, in this latter sense, than other offices having a much lower rate of compensation.’ ”

The basis for the court’s holding that the prison director may also be a city councilman is that a city councilman is not an officer “under the state” because, according to Indiana law and authorities, a city government is separate and distinct from the government of the state. This is contrary to the Texas holding that a city government is a subdivision of and under the state government.

Black’s Law Dictionary, 4th Ed., defines “lucrative” as “yielding gain or profit, profitable bearing or yielding a revenue or salary.” Black also defines a “lucrative office” as “one which yields a revenue (in the form of fees or otherwise) or a fixed salary to the incumbent; according to some authorities, one which yields a compensation supposed to be adequate to the services rendered and in excess of the expenses incidental to the office. One the pay of which is affixed to performance of duties of office.”

Under the above authorities the relator holds a lucrative office.

It is undisputed that relator’s terms as City Councilman, to which he was elected, will not expire until April, 1965, and that should he be successful in being elected State Senator his term would begin before April 1965.

Therefore, since he holds a lucrative office under this state, he is ineligible to serve as State Senator at the session to which he seeks to be elected. Being ineligible to serve, he cannot have his name appear on the ballot at the coming primary election May 2, 1964, as a candidate for State Senator. Arts. 1.05 and 1.06 of Election Code, State of Texas.

Relator’s Application for Writ of Mandamus is refused.

No motion for rehearing will be entertained.

HAMILTON and STEAKLEY, JJ., dissenting.

STEAKLEY, Justice

(dissenting).

I am preparing a dissenting opinion in Lee v. Daniels, Tex., 377 S.W.2d 618, in support of my view that the accomplished resignation of Sam Jorrie as County Commissioner of Bexar County on February 1, 1964, removed his ineligibility to the Legislature under Section 19 of Article III and Section 12 of Article XVI of the Constitution of Texas. Section 16 of Chapter XXIV of the Charter of the City of Fort Worth provides that “If a member of the Council shall become a candidate for nomination or election to any public office, other than that of Councilman, he shall immediately forfeit his place in the Council; * * *

I would hold for the reasons to be stated in the dissenting opinion mentioned above that the immediate forfeiture of the office of City Councilman by the act of Doyle Willis in becoming a candidate for the office of State Senator removed his ineligibility for the Legislature. As I view the problem, the holding of a disqualifying office should be recognized as the consistent criteria of ineligibility in both Section 19 of Article III and Section 12 of Article XVI; otherwise, there will exist an irreconcilable conflict between these two constitutional provisions pertaining to eligibility to the Legislature.

HAMILTON, Justice

(dissenting).

I agree with the court’s holding that the office of City Councilman of the City of Fort Worth is a lucrative office, but I cannot agree with, the court that the City Councilman is an officer under this state within the meaning of Aritcle III, Section 19 of the Constitution.

A home rule city possesses powers not denied by statute or Constitution so long as the city has incorporated these powers in its charter. There are many powers which the City of Fort Worth could exercise under the Constitution and statutes, but it cannot do so because they are not contained in its charter. See Davis v. City of Taylor, 123 Tex. 29, 67 S.W.2d 1033; Zachry v. City of San Antonio, 296 S.W.2d 299 (Tex.Civ.App.1957), affirmed 157 Tex. 551, 305 S.W. 2d 558. It is the people of the City of Fort Worth through its charter who have given the City Council of Fort Worth all the powers it possesses, and herein lies the distinction between a city councilman as an officer under the city and an officer under the state. There is no statute which imposes upon the councilman any state duty above and beyond the duties placed upon him by - the charter of the City of Fort Worth. His office is not created by the state, his powers and duties are not defined by the state, neither has the state by statute placed any particular duty upon him by virtue of his office of City Councilman. Under these circumstances I would say that relator is not holding an office under this state.

The term “office under this state” as used in Article III, Section 19 of the Constitution, has never been construed by the courts of this state as applied to a municipal office, but it has been so construed by many other states. Without exception every jurisdiction has declared a municipal office not to be an office tmder the state unless it is one created by the Constitution or statutes, its powers and duties defined by statute, or an office created by some other authority such as a municipality, but upon which there is imposed by statute certain state duties.

The Supreme Court of Michigan has written an exhaustive opinion on the subject before us and has analyzed many cases in other jurisdictions, and in the opinion of the writer has verified the conclusion he has reached above. Attorney General ex rel. Moreland v. Common Council of City of Detroit, 112 Mich. 145, 70 N.W. 450, 37 L.R.A. 211 (1897) and cases cited therein.

In State ex rel. Platt v. Kirk, 44 Ind. 401 (1874) it was held that the office of City Councilman was not an “office * * * under this State.” In making such holding, the Indiana Supreme Court stated as follows :

“The office of councilman is an office purely and wholly municipal in its character. He has no duties to perform under the general laws of this State. The State has enacted a law applicable to all cities which may organize under it. The inhabitants of the particular locality, after having taken the other necessary steps for an organization, elect the designated number of councilmen, who have the power to enact by-laws, and do such other acts and perform such other duties as pertain to their office in the municipality. These powers and duties of councilmen are beyond and in addition to any acts, powers, and duties performed by officers provided for under the state government.” 44 Ind. at 406-407.

The Supreme Court of Missouri, in holding that a mayor of a city is not an officer-under the state, stated:

“We do not regard the mayor of a city as an officer under the State within the meaning of the constitutional provision. There is a recognized distinction between State officers, whose duties concern the State at large, or the general public, although exercised within defined territorial limits, and municipal officers, whose functions relate exclusively to the particular municipality. * * * A State officer may be connected with some of the municipal functions, but he must derive his powers from a State statute and execute his powers in obedience to a State law. * * * Whilst it is true, that the State grants the charter under which a city is organized and acts, yet those elected in obedience to that charter perform strictly municipal functions, and do not act in obedience to State laws in the manner enjoined upon State officers.” Britton v. Steber, 62 Mo. 370, 374 (1876).

The above holding was also applied to the office of city alderman in State at Inf. of Dalton ex rel. Tucker v. Mattingly, 268 S.W.2d 868 (Mo.Sup.Ct. 1954)

In Klair v. Bacharach, 10 N.J.Misc. 448, 159 A. 538 (1932), it was held that a City Commissioner or Mayor, although acting as judge of a police court, was not an officer “under government of this State.”

The Florida Supreme Court in Attorney General ex rel. Wilkins v. Connors, 27 Fla. 329, 9 So. 7 (1891) held that municipal offices are not offices “under the government of this State.”

In People v. Capuzi, 20 Ill.2d 486, 170 N.E.2d 625 (1960), it was held that the President of a Village is not an “office under * * * this State * *

Respondent relies on Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1922) in support of his position that a City Councilman is an officer under the State. In that case it was held that the office of judge of the municipal court of a city is a “civil officer under this State.” The Arkansas court made the following statement:

“The words ‘under this state,’ as used in the Constitution, mean under the laws of this state, or by virtue of or in conformity with the authority conferred by the state as sovereign. It embraces all offices created by the laws of the state as contradistinguished from other authority. Municipal offices are created by the statutes of the state, and are therefore civil offices ‘under this state.’ ”

That case is distinguished from the case before us in that in Arkansas municipal offices are created by the statutes of the state as “contradistinguished from other authority”. The other authority in the instant case is the charter of the City of Fort Worth, which created the office of City Councilman.

Respondent relies on Attorney General ex rel. Moreland v. Common Council of City of Detroit, supra, and State ex rel. Young v. Robinson, 101 Minn. 277, 112 N.W. 269, 20 L.R.A.,N.S., 1127 (1907), along with language by this court in Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926).

While it was held in Attorney General ex rel. Moreland v. Common Council of City of Detroit that the office of Mayor was an office “under * * * this State”, the Supreme Court of Michigan did recognize that municipal officers “whose duties are simply and purely municipal, and who has no function pertaining to state affairs, does not come within the constitutional description of officers holding office under the state”. That court based its decision on the fact that a mayor was a conservator of the peace in common with all magistrates and that the legislature had placed general duties under state law on mayors of municipalities.

State ex rel. Young v. Robinson, supra, is based on a similar proposition. That case involved the right of the Attorney General of Minnesota to bring a suit to remove a person from the office of mayor of a municipality. The court held him to have such right, such holding being based on the fact that in Minnesota the mayor was required by state law to report all violations of the state liquor laws and any neglect of duty by a mayor was made cause for removal.

In Yett v. Cook, supra, it was stated by this court, and respondent relies thereon:

“That the state has a justiciable ‘interest’ in its sovereign capacity in the maintenance and operation of its municipal corporations in accordance with law does not admit of serious doubt. Municipal corporations are created for the exercise of certain functions of government. They have a two-fold character, one governmental and the other private, and, in so far as their character is governmental, they are agencies of the state, and subject to state control.” (citing authorities.)
“The mayor of a city is a magistrate, and its police officers are state officers.” (citing authorities.)

The holding of the court was that individuals in their private capacity did not have a justiciable interest other than as a member of the general public, hence could not compel calling of city election. In using the above language, this court was merely holding that the State was the proper party to bring suit to compel a municipal election. That case did not pass on whether a city councilman is an officer under the State as used in Article III, Section 19 of the State Constitution. A municipal officer may be an officer under the State when the statute placed certain duties on him which he is bound to enforce. For example, a municipal police officer may be said to be an officer under the State, since he has the duty, made so by statute, to enforce the general criminal laws of the State. See Articles 36 and 37, Vernon’s Ann.C.C.P.

The court also relies strongly on the case of Orndorff v. State (Tex.Civ.App., 1937, writ ref.), 108 S.W.2d 206, in which the court held that a county commissioner was an officer under the government of the state. That case is not contrary to the test that has been set out above. The office of county commissioner was created by the state. Its duties and powers are set by statute and the counties themselves are created by the state without regard to the wishes of the people therein residing.

I agree with the statement in this court’s opinion in this case that “Any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility.” In keeping with that premise, I would hold that a city councilman of the City of Fort Worth is not an officer under this state and I would grant relator’s application for writ of mandamus.


author: SMITH, Justice.

text:
    Hulon BROWN, Relator, v. Howard WALKER et al., Respondents.
    No. A-10074.
    Supreme Court of Texas.
    April 8, 1964.
    Gilbert T. Adams, Beaumont, for relator.
    David Walker, Lufkin, R. W. Fairchild,. Nacogdoches, for respondents.
   SMITH, Justice.

Relator, The Honorable Hulon Brown, the elected, currently-acting District Attorney of the combined district made up of the Second and One Hundred and Forty Fifth Judicial Districts of Texas, petitions this court for the issuance of a writ of mandamus commanding and compelling the Honorable Howard Walker, Chairman, and all of the members of the Democratic Executive Committee of Angelina County, Texas, one of the counties comprising said Judicial District, to place his name upon the ballot for the May 2, 1964, Democratic Primary, as a candidate for nomination, to the office of District Attorney of the district.

The Chairman, all members of the Committee and the Honorable H. R. Rolston of Angelina County, Texas, an announced candidate for the same office as that which the Relator seeks, are Respondents.

Relator, unquestionably, has complied with the Texas Election Code by filing a proper application with the Democratic Executive Committee of Angelina County, Texas. It is undisputed that the Executive Committee has complied with the provisions of Article 13.08"of the Texas Election Code, Vernon’s Annotated Civil Statutes, requiring the County Committee to estimate the cost of printing the official ballots and all necessary expenses of holding the general primary and second primary in Angelina County, Texas. It is not claimed that the Chairman of the Executive Committee failed to properly notify Relator by mailing, as required by the Statute, a statement of the amount of expenses apportioned to him. Relator, in fact, admits that he received a statement reflecting an assessment of the sum of $50.00.

The Respondents admit that the Relator, in an attempt to make payment of the amount of the assessment, mailed by regular, first-class United States mail, a bank money order in the sum of $50.00, and that the envelope containing the amount of assessment was postmarked before midnight, Saturday, February 15, 1964. The Chairman of the Committee issued a receipt, which reads:

“Letter Postmarked — OK H.W. NO._ Feb. 15,_1964 Received from Hulon Brown_ _Fifty and no/100_Dollars Dist. Attorney $50,00/ Final Howard Walker, Jr. ”

Relator contends that payment of the assessment was timely received and acknowledged and that he is entitled to have his name placed' upon .the ballot as a .candidate for the office of District Attorney.

Relator contends that since the -receipt clearly shows the payment of the final assessment, such receipt cannot be subject to attack absent fraud -or -wrongdoing on his part. Relator further contends that payment was delivered to the County Chairman within the meaning of Article 13.08, supra. It is argued under this point that the payment was mailed in accordance with the instructions of the County Chairman, and that by giving such instructions, the Chairman designated an agent for receipt of the assessment.

We realize that the Relator is naturally disconcerted' over the turn of events. However,' we aré convinced that he has failed to make payment of the assessment within the time prescribed by the Statute. Therefore, we are compelled to overrule all of his contentions and deny the mandamus.

The Statute provides, in part:

“The committee shall by resolution direct the chairman to mail immediately to each person against whom an assessment is made a statement of the amount of such expenses apportioned to him, with the request that he pay to the county chairman, on or before the Saturday [February 15] before the third Monday in February thereafter, the difference between the amount of the assessment and the amount of the deposit which accompanied his application; and no person’s name shall be placed on the ballot unless he pays the assessment within the prescribed time. * * * It shall be sufficient to meet the requirements of this law to mail by registered or certified letter to the chairman before the deadline herein provided, as shown by the postmark on the letter, a money order, a certified check, or a good personal check; but it shall not be sufficient to make the payment by any other type of mail un less it is delivered before the deadline.”
(Emphasis added.)

When the Relator chose to deliver the payment by regular mail on February 15, 1964, he was charged with knowledge of. the Statute’s specific provision that this type of delivery would not be sufficient compliance with the mandatory provisions of the Statute “unless it was delivered before the deadline.” If Relator was to protect himself from being denied a place on the ballot due to payment being delivered after the deadline, it was his responsibility to comply with that portion of the Statute which specifically provides that it shall not be sufficient compliance to make the payment beyond the prescribed time unless the payment is mailed by registered or certified mail before the deadline. Admittedly, Relator failed to comply with the Statute. The fact that the Chairman told the Relator on February 15th that he could send the payment by mail from Jacksonville, Texas, to the Chairman’s home address in Lufkin, Texas, does not excuse the Relator from complying with the law governing the manner of payment of assessments. To hold that the Chairman, by directing the Relator to mail the money order rather than physically delivering it, designated an agent for the receipt of the assessment and thereby payment was actually made on February 15, 1964, when the letter was deposited in the mail, would enable a chairman of an executive committee and a candidate, or either of them, to circumvent and render meaningless the provision of the Statute which requires that in all instances where the mail is resorted to as a means of delivery,, a delivery of the payment beyond the prescribed time shall not be sufficient to comply with the Statute unless the payment is mailed by registered or certified mail before the deadline.

The acceptance of the money order and the issuance of the receipt by the Chairman does not alter the situation. The receipt merely shows that the- letter was postmarked in time on February-.’15th. Even if the receipt had actually. recited that the payment was received .on Saturday, February IS, 1964, the record unde- . niably would refute such a recitation. The record does not show when the letter was received in the Lufkin Post Office, but it does show that the Post Office was closed on Saturday afternoon, and that the Chairman did not have a post office box. The record further shows that the letter was' received by the Chairman at his residence on the morning of February 17, 1964, two days after the deadline fixed by statute. ■

Since the Relator did not comply with the mandatory requirements of Article 13.08, supra, his name cannot legally be placed upon the ballot.

Relator’s Application for Writ of Mandamus is denied.

We invoke provisions of Rule 515, Texas Rules of Civil Procedure, and deny the Relator the right to file a motion for rehearing in this cause.

NORVELL, J., not sitting.