author: CULLEN, Commissioner.

text:
    Taylor WALKER, Appellant, v. Ruby E. BENCINI, Administratrix of the Estate of James Thomas Bencini, Dec’d, Appellee.
    Court of Appeals of Kentucky.
    Dec. 6, 1963.
    Rehearing Denied Dei). 7, 1964.

      Roberts & Parham, Mayfield, for appellant.
    James H. Warren, Fulton, H. W. Roberts, Jr., Clinton, for appellee.
   CULLEN, Commissioner.

Ruby E. Bencini, administratrix of the estate of James Thomas Bencini, deceased, recovered judgment against Taylor Walker in the amount of $37,861 as damages for the wrongful death of the decedent from murder committed by Walker. We have an appeal by Walker from the judgment.

A criminal charge of murder was pending against Walker when the civil action was brought. The attorney who had been employed by Walker to defend the criminal proceedings filed an answer for him in the civil. action, but at that time no agreement had been reached between Walker and the attorney as to the terms on which the attorney would represent Walker in the civil action, and no such agreement ever was reached.

On May 18, 1960, after the civil action had been pending for several months, the attorney filed in the circuit court, in the civil action, a notice stating that he and Walker had been unable to come to an agreement concerning his employment in the civil action and that he was withdrawing as attorney for Walker. A copy of this notice was mailed to Walker and received by him on May 19.

On the same day that the above notice was filed (May 18) the attorneys for the plaintiff in the civil action caused to be served on Walker, by the sheriff, a notice that on May 19 they would enter a motion that the action be set for trial on May 25. Walker did not appear at the hearing of the motion on May 19, at which time the court set the case for trial on May 25. Walker did not appear at the trial, either in person or by counsel, and the trial proceeded in his absence, resulting in verdict and judgment for the plaintiff.

Several days after judgment Walker employed new counsel, and they filed a motion for new trial which was overruled.

Walker’s first contention on this appeal is that he was not given adequate or reasonable notice of the motion to set the case for trial and therefore he should have been granted a new trial.

Walker was entitled to reasonable notice of the hearing on the motion to set 'a trial date (despite the fact that the 1960 amendment to CR 40, expressly requiring such notice, was not yet in effect at the time here involved). See Burns v. Brewster, Ky., 338 S.W.2d 908; Ledford v. Osborne, Ky., 350 S.W.2d 641. But for the reasons hereinafter stated we think he is not entitled to complain of a lack of reasonable notice.

Since no substantial time for' preparation was required to resist the motion to set the case for trial, and since there was nothing in the way of physical circumstances to prevent Walker from making arrangements to be present at the hearing, we think the one-day notice given him can be considered reasonable. In Clay, CR 40, Comment 3, it is suggested that in some circumstances a few minutes’ notice of hearing on such a motion would be sufficient. It is true that Walker did not have counsel when he received the notice, but this was due to his own failure to arrange for counsel during the period of several months the case had been pending. It also is true that he did not receive written notice of the withdrawal of his tentative counsel until the day of the hearing on the motion to set a trial date, but it is reasonably clear that he had prior knowledge that his tentative counsel would not continue to represent him without a definite employment agreement, and it'appears that'the formal notice of withdrawal was merely documentation of a fact that Walker already knew.

The notice of motion stated that the case would be asked to be set for trial on May 25. In our opinion this adequately put Walker on notice that the case probably would be tried on that date. With such notice it was incumbent upon him to make a timely objection. See Clay, CR 40, Comment 3; Burns v. Brewster, Ky., 338 S.W.2d 908. There was a period of seven days during which he could have interposed objections, in person or by counsel employed by him, to the holding of the trial on the designated date. Instead he chose simply to ignore the entire proceedings until after the trial had been held and judgment entered against him.

The purpose of a requirement of reasonable notice of proposed steps in a lawsuit is to give the parties opportunity to present their objections to steps that might prejudice them. Clay, CR 40, Comment 3. In the instant case the prejudice, if any, resulted from the holding of the trial and not from the mere setting of the trial date. Walker had ample time, after the date was fixed and before the trial was held, in which to appear and make objection to the trial date. Not having done so, he must be considered to have waived any objection to the reasonableness of the notice of the motion to fix the trial date.

A second contention is that the evidence was not sufficient to sustain the verdict. However, since Walker did not appear at the trial and make a motion for a directed verdict he is not entitled to assert that ground. Claspell v. Brown, Ky., 332 S.W.2d 851.

The contention is made that incompetent and irrelevant evidence was admitted on the trial, of a highly prejudicial nature. Again, Walker is not entitled to complain of the evidence because he did not appear at the trial and make objections to the evidence.

The motion for a new trial was based in part on alleged newly discovered evidence. However, most of the evidence relied upon was known to Walker before the trial, and as to the rest there was no showing of diligence in attempting to discover it before trial.

The unfavorable situation in which Walker finds himself is attributable to the attitude of indifference which he chose to display toward the lawsuit against him.

The judgment is affirmed.


source: Caselaw Access Project

author: RUARK, Presiding Judge.

license: Public Domain

text:
    Minta DUNNEGAN, Respondent, v. C. Rouss GALLOP, Director of the Department of Public Health and Welfare, Appellant.
    No. 8267.
    Springfield Court of Appeals. Missouri.
    Jan. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for appellant.
    No appearance for respondent.
   RUARK, Presiding Judge.

This is an appeal by the Director of the Department of Public Health and Welfare from the judgment of the circuit court reversing and remanding for redetermination a decision of the director denying the application of Minta Dunnegan for old age assistance. The hearing before the referee was held on September 12, 1961, and the decision of the director was rendered on October 11, 1961. Some delay has resulted due to the fact that the director took the appeal to the Supreme Court. That court transferred the case to this court. (Dunne-gan v. Gallop, Mo., 369 S.W.2d 206.)

The decision of the director denying the claimant was based upon a finding that Mrs. Dunnegan had transferred the sum of fifteen hundred dollars to a daughter without receiving fair and valuable consideration (§ 208.010, RSMo, V.A.M.S.) between April and August 1960.

Mrs. Dunnegan applied for old age assistance September 6, 1960 and was re-j ected. The case worker testified that upon investigation in regard to that application:

“A. Well, when I went through her papers, she had two checks, one in the amount of $500 and one for $1,000, and I asked her what she had done with the money, and she said she had given it to her daughter.
“Q. Did she, at that time, tell you why she gave this $1500 to her daughter and son-in-law?
“A. She said she had lived with them for approximately 18 months, and she felt that she owed the money to them.
“Q. Did she tell you anything else concerning her daughter and son-in-law,' why she gave them that money at the time she did?
“A. She said her son-in-law was studying to be a Missionary and they were in need. They had had two children, I believe, and they needed the money, and she gave it to them.
“Q. Did she, at that time, say anything whatsoever to you about her daughter giving her money over a period of approximately eight years to keep for her?
“A. No, sir, not at that time she did not.
“Q. And you rejected the application of September 1960 because of this transfer as explained to you by Mrs. Dunnegan, is that correct?
“A. Yes, sir.
“Q. And did you inform Mrs. Dunne-gan at the time you rejected the application that is the reason that it was rejected?
“A. Yes, sir.
“Q. And did she, at that time, say anything to you about her daughter giving her any money?
“A. Not at that time, but she came to the office on December 6, 1960, and said that the daughter had the $1500, as she had earned this from teaching school and working in a library in St. Louis.”

A new application was made on June 12, 1961, and the transcript carries the record of hearing on that application.

At the time of the hearing Mrs. Dunne-gan was seventy-eight years old. She was a widow, her husband having died in March 1950. She testified that she was indebted to her daughter, Nadine, in a sum of “at least” fifteen hundred dollars, and the two checks, one for one thousand dollars on April 22, 1960, and the other for five hundred dollars on August 15, 1960, were cashed by her for the purpose of repaying the daughter. She said Nadine had been her only unmarried daughter and had taught at rural schools. Nadine would come home (presumably on week-ends). It was not feasible for Nadine to get to the bank and deposit her earnings; so she would give what funds she did not need to her mother to deposit for her. Mrs. Dunnegan deposited it in her own (Mrs. Dunnegan’s) bank account. “I didn’t want the money in the house. Just as soon as I could get to the bank I would go to the bank with it.” It was the understanding that she would give the money back to Nadine whenever Nadine called for it. It is difficult to arrive at any exact time or period Mrs. Dunnegan says these things occurred, but she says her daughter was teaching in 1949 and 1950. Subsequent to a teaching period, Nadine went to St. Louis and worked in a library. She fixes the period of the deposits of her daughter’s money in the period between 1950 and 1957. At some time during this period, Nadine married. Mrs. Dunnegan testified (on September 12, 1960) : “She has been married six years this next November, and she give me money until just along before she was married. * * * ” Her testimony in regard to all this is somewhat confused and to some extent contradictory, but some of her confusion and lack of memory might be attributable to her age. However, she is positive of one thing, and that is that she never had a bank account except in the Bank of Poplar Bluff. It also appears that claimant lived with her daughter and son-in-law (apparently in St. Louis) for some eighteen months after that marriage. Nevertheless, Nadine never called for the return of the money until in April 1960, when she wanted one thousand dollars, and in August 1960, when she wanted five hundred dollars. On these occasions Mrs. Dunnegan cashed a check and gave the money to Nadine in cash. On the day the one-thousand-dollar check was cashed, Mrs. Dunnegan also transferred her bank account to a joint account in her own name and the name of another daughter.

Accepted as evidence was the affidavit of the daughter, Nadine Bellomy, of Arlington, Texas. It states in substance that during the years she taught in rural schools in several counties, it was a hardship for her to visit the Bank of Poplar Bluff'. For that reason she entrusted to her mother a total of fifteen hundred dollars for deposit to her (Mrs. Dunnegan’s) personal account with the understanding that it would be withdrawn and given to the affiant whenever she requested it. On April 22, 1960, she requested one thousand dollars and her mother drew a draft to cash for that amount and gave it to her. On August 15, 1960, she needed the balance, and her mother drew a draft to cash for five hundred dollars and gave it to her. It states that this was the return of her own money.

The ledger sheets of Mrs. Dunnegan in the Bank of Poplar Bluff (the only place she banked) for the years 1950 through 1960 are in the record by agreement at the hearing. The account was apparently opened on April 8, 1950, (this was shortly after her husband’s death) with a deposit of one thousand dollars. After that only the following deposits were made:

December 16, 1950 180.00
April 9, 1951 2,640.00
June 19, 1951 160.00
April 28, 1955 290.00
July 10, 1956 7,591.25.

This last deposit seems to have come from the sale of Mrs. Dunnegan’s place. If we add the early part of the year 1957 to the list, we find a deposit of six hundred eight dollars and seventy-five cents on February 19.

The scope of judicial review is limited to determining (a) whether the petitioner was granted a fair hearing, and (b) whether the decision of the director was unreasonable. § 208.100(5), RSMo, V.A.M.S.; Brattin v. State Social Sec. Commission, Mo.App., 194 S.W.2d 536. If there is no substantial or probative evidence to support the findings and the decision is contrary to the undisputed, determinative facts, the decision is arbitrary and unreasonable. Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 819, and cases post.

As to whether respondent had a fair hearing. She was represented not by an attorney, but by a doctor friend who undertook to act in the capacity of attorney. The hearing was conducted rather informally. The referee explained the purpose of the hearing. The doctor was not familiar with regular procedures, but the referee asked questions of the petitioner and also permitted full inquiry to be made by the doctor, both in and out of regular course. After that the referee invited both petitioner and the doctor friend to make any further statements they wished which might clarify the whole matter. Both were permitted to make such statements as they wished. The petitioner was also permitted to introduce and to have included in the record such affidavits as she wished. The only one which has any value to the question here involved was that of Nadine Bel-lomy, the contents of which we have set forth. We think the claimant had a fair hearing.

The trial court’s finding was that the decision of the director was arbitrary and unreasonable in that “the Director ignored the overwhelming evidence adduced on the part of the Claimant and based his decision solely upon the testimony of Violet Ship-ton,” which testimony the court found was not substantial evidence.

The reviewing court does not try the issues de novo. McCoy v. State Dept. of Public Health and Welfare, Mo.App., 271 S.W.2d 788; Davis v. State Dept. of Public Health and Welfare, Mo.App., 274 S.W.2d 615. It is the director, not the courts, who considers, weighs, and determines the credibility of witnesses. Humphrey v. State Dept. of Public Health and Welfare, Mo.App., 286 S.W.2d 563; Norman v. State Dept. of Public Health and Welfare, Mo.App., 283 S.W.2d 143. And if there is substantial, probative evidence of determinative facts to support the finding, concerning which reasonable men might differ, the director’s determination of such facts is binding on the courts (Thornsberry v. State Dept. of Public Health and Welfare, 365 Mo. 1217, 295 S.W.2d 372; Choate v. State Dept. of Public Health and Welfare, Mo.App., 296 S.W.2d 189; Bollinger v. State Dept. of Public Health and Welfare, Mo.App., 254 S.W.2d 257; and all other cases herein cited), unless it plainly appears that the director based his decision on a misinterpretation of law (Powers v. State Dept. of Public Health and Welfare, Mo.App., 359 S.W.2d 23) or an obvious mistake of fact (Weidmaier v. State Dept. of Public Health and Welfare, Mo.App., 343 S.W.2d 93, 96) or blindly closed his eyes and mind to and refused to consider competent and probative evidence. Velghe v. State Dept. of Public Health and Welfare, Mo.App., 362 S.W.2d 747, 752; Humphrey v. State Dept. of Public Health and Welfare, supra, Mo.App., 286 S.W.2d 563, 566. It must be remembered that in a proceeding such as this the claimant has the burden of proving eligibility. Carlisle v. State Dept. of Public Health and Welfare, Mo.App., 341 S.W.2d 617; Johnson v. State Dept. of Public Health and Welfare, Mo.App., 283 S.W.2d 147.

While this is not the true criterion for our review, we find no “overwhelming weight of the evidence” in favor of the respondent. To the contrary. The payments to the daughter were admitted. According to the case worker, Shipton, when the 1960 application was under consideration, Mrs. Dunnegan gave a different (and disqualifying) reason for these payments. At the hearing on the 1961 application, she did not specifically deny having made such statements. She did not remember them. And, if her statements are taken as a denial, her credibility was for the director. The deposits shown by the bank records tend to belie the claim of deposits of a school teacher’s salary in the total sum of fifteen hundred dollars as testified by claimant.

Keeping in mind that the decision is as to the claimant’s qualifications for receipt of old age assistance at the time of the hearing, September 12, 1961 (Sullivan v. State Dept. of Public Health and Welfare, Mo.App., 295 S.W.2d 190; Edwards v. State Social Sec. Commission, Mo.App., 187 S.W.2d 354) and is not determinative of Mrs. Dunnegan’s qualifications as of this present date, we must respectfully find that the decision of the director was based upon substantial evidence and was not arbitrary or unreasonable in any respect. The judgment of the circuit court is therefore reversed.

STONE and HOGAN, JJ., concur.


author: GREENHILL, Justice. CULVER, Justice

text:
    Rufus SOWELL, Petitioner, v. The TRAVELERS INSURANCE CO., Respondent.
    No. A-9398.
    Supreme Court of Texas.
    Nov. 13, 1963.
    Rehearing Denied Feb. 5, 1964.
    Fulmer, Fairchild & Badders, Nacog-doches, for petitioner.
    Garrison, Renfrew, Zeleskey, Cornelius & Rogers, Lufkin, for respondent.
   GREENHILL, Justice.

This is a workmen’s compensation case, brought by Rufus Sowell against The Travelers Insurance Company. The trial court entered judgment for Sowell upon jury findings that he had sustained 25 per cent partial incapacity for a period of fourteen months. Sowell appealed, contending for a larger recovery, but the Court of Civil Appeals affirmed. 363 S.W.2d 350.

Sowell alleged that on November 12, 1960, while in the course of his employment, he received an injury to his back which resulted in his total and permanent incapacity. Travelers’ answer contained a general denial and alternative pleas to the effect that Sowell’s alleged incapacity was caused solely, or partially, by prior injuries and infirmities.

Sowell testified that on November 12, 1960, while at work on his employer’s poultry farm, he injured his back emptying a tub of water. Two days later he went to his family physician, Dr. Pennington, who placed him in the hospital where he remained for approximately three weeks. Dr. Pennington testified that in his opinion Sowell had sustained a ruptured disk in the lumbar region of his back. He was of the opinion that Sowell was totally disabled from performing manual labor as a result of the injury. He stated that Sowell had been suffering from a natural arthritic condition in his back for several years. He had discovered arthritic changes from X-rays taken in 1956 and 1960. He testified that such arthritic changes are disabling if they are painful or cause stiffness; that in May of 1960, Sowell had complained of severe shoulder pains which he had diagnosed as osteoarthritis; that Sowell’s arthritic condition was just as prevalent in his lower back; and that arthritis and a back injury will create a likelihood of complications or prolonged disability.

It was also revealed that Sowell had received two prior compensable injuries. In 1950, his left leg was broken. In 1956, he suffered an injury to his lower back while swinging an axe. He was treated on both of these occasions by Dr. Pennington.

The jury found that Sowell’s injury of November 12, 1960, resulted in partial incapacity for a period of fourteen months. Special Issue No. 14 inquired whether Sowell’s leg injury of 1950 had contributed to his present incapacity. The jury found that it had. In answer to Special Issue No. 15, the jury found that the lower back injury of 1956 also contributed to Sowell’s present incapacity. Special Issue No. 16 was submitted and answered as follows:

“From a preponderance of the evidence, what percentage, if any, of plaintiff’s incapacity, if any you have found, is due solely to the alleged injury of November 12, 1960? Answer by stating the percentage, if any. Answer: 25%.”

In its charge the trial court gave the following definition:

“You are instructed that by the term ‘INJURY’ as used in this Charge, is meant damage or harm to the physical structure of the body, and such diseases or infection as naturally result therefrom, or the lighting up, acceleration or aggravation of any disease or condition previously existing, by reason of such damage or harm to the physical structure of the body.”

Sowell, as the petitioner in this Court, questions the correctness of Special Issue No. 16 as it was submitted by the trial court.

Prior to Sowell’s latest injury of November 12, 1960, he received two separate compensable injuries, the broken leg of 1950 and the lower back injury of 1956. Travelers, therefore, was entitled to the submission of Special Issues No. 14 and No. 15. Article 8306, § 12c, Vernon’s Ann. Civ.St. The jury found that these two prior compensable injuries contributed to the incapacity suffered by Sowell as a result of the injury of November 12, 1960. Special Issue No. 16 was calculated to determine the percentage of incapacity which was attributable to his last injury of November 12, 1960.

Sowell’s complaint is directed to the use of the word “solely” in that issue. He contends that “solely” incorrectly precluded the jury from considering his previously existing arthritic condition in determining the amount of his present incapacity. As Issue No. 16 was submitted, the jury could consider only the incapacity resulting solely from the damage to Sowell’s body by the occurrence of November 12, 1960. Travelers argues that the trial court’s definition of the term “injury” corrected any supposed error in Issue No. 16. The definition, set out above, allowed the jury to consider the incapacity resulting from the physical trauma which occurred on November 12, 1960, the diseases or infections naturally resulting therefrom, and the acceleration or aggravation of previously existing diseases or conditions. Sowell asserts that in spite of the definition, the jury was still required to exclude from its consideration any incapacity produced concurrently by the injury and the arthritic condition. Under the definition, the pre-existing arthritic condition must have been accelerated or aggravated to be taken into account in ascertaining Sowell’s incapacity. No such limitation exists in the cases, as will be discussed below.

An employee is entitled to compensation for an injury received in the course of his employment, regardless of the fact that he may have been previously suffering from a disease which contributed to the incapacity resulting from said injury. Texas Employers’ Insurance Ass’n v. Parr, 30 S.W.2d 305 (Tex.Comm.App., 1930); Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026 (1940); St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962).

In the Parr case, it was said:

“The law [is] that an employee is entitled to compensation for an injury received in the course of employment, notwithstanding the employee may have been afflicted with a disease or diseases which had substantially contributed to his condition * *

We think Special Issue No. 16 probably prevented the jury from arriving at a result in harmony with this rule of law.

The insurance company is correct in its assertion that issues similar to No. 16 here have been held to be proper in other cases. Thus in Texas Indemnity Insurance Co. v. Perdue, 64 S.W.2d 386 (Tex.Civ.App., 1933, wr. ref.), the insurer was held to be entitled to issues as to whether there had been previous compensable injuries to plaintiff, “and what percentage of such incapacity resulted alone from the injuries” complained of. But there were no noncom-pensable injuries or pre-existing diseases in that case, and the point raised here was not raised in the Perdue case. Nor was the definition given in this case at issue in the Perdue case.

In Texas Employers Insurance Association v. Griffis, 141 S.W.2d 687 (Tex.Civ.App., 1940, no writ), there was evidence of prior injuries, and the special issue on the latest injury there in question was worded, “What percentage of plaintiff’s present incapacity * * * is attributable solely to the alleged injury of December 20, 1938?” The jury answered, “100%,” and that prior injuries did not contribute to plaintiff’s incapacity. Moreover there was no evidence of previously existing disease or condition. Hence that case is clearly distinguishable. Similarly, in Travelers Insurance Co. v. Glenn, 358 S.W.2d 136 (Tex.Civ.App., 1962, n. r. e.), there had been a former compensable injury. The Court of Civil Appeals indicated that the trial court could have had the jury determine the percentage of incapacity which was solely due to the prior injury, or it could have had the jury find the percentage of incapacity which was due solely to the then present injury. Again, no previous noncompensable injury or disease was involved; and, again, the point here present was not raised. There are other cases of a similar nature which are distinguishable on similar grounds. Traders & General Insurance Co. v. Watson, 131 S.W.2d 1103 (Tex.Civ.App., 1939, dism., judg. corr.).

The facts in this case present a distinctive situation. Dr. Pennington testified that Sowell’s prior arthritic condition could concur with his injury to increase and prolong his incapacity. This evidence clearly invoked the substantive rule of law announced in the Parr case. The problem of the trial court was to frame an issue from which the jury could determine that amount of Sowell’s present incapacity which had resulted from both his injury of November 12, 1960, and his previously existing diseases and physical conditions which contributed to his incapacity. The insertion of the word “solely” into Special Issue No. 16 was evidently intended to exclude from the jury’s consideration that portion of Sowell’s incapacity resulting from the two prior compen-sable injuries. But this wording gave an overreaching effect to the issue.

Sowell requested the submission of a special issue which inquired what percentage of his present inacapacity resulted from the prior compensable injuries of 1950 and 1956. This, in our opinion, would have been the better way to submit this phase of the case to the jury. With these facts determined, the insurance company is relieved of paying compensation for previous injuries which contribute to the plaintiff’s incapacity, and at the same time, the plaintiff is given the benefit of the holding in the Parr case.

As stated above, there have been cases in which the wording employed in Special Issue No. 16 has been held to be acceptable. It may be proper where there is evidence only of prior compensable injuries and none of a previously existing disease or physical condition or previous noncompensable injury which might have been a contributing cause of incapacity. But, it is in cases such as this, where there is evidence of prior compensable injuries and of previously existing diseases or physical conditions, that the trial court must protect not only the insurance company’s rights under § 12c of Article 8306, but also the claimant’s rights under the Parr case. For the foregoing reasons, the judgments of the trial court and the Court of Civil Appeals must be reversed and the cause remanded for a new trial.

In view of another trial, we will notice other points of error asserted by Sowell. His second and third points are directed to the trial court’s submission of Special Issue No. 14. That issue asked if Sowell’s broken leg of 1950 contributed to his present incapacity. He contends that there was no evidence that the leg injury contributed in any way to his present incapacity. Dr. Pennington testified that a broken leg may cause back trouble; that the fractured leg might become shorter causing a tilting of the pelvis which could eventually lead to back trouble. He stated, however, that he had never measured So-well’s legs and had never noticed him to have one leg shorter than the other. Sowell testified that he was off work for a year because of his broken leg. Dr. Pennington said that after this leg injury he had been of the opinion that Sowell would suffer a 25 per cent partial loss of the use of said leg. The doctor did not express an opinion as to the duration of the partial incapacity. On this trial, he said that his memory did not go that far back; that his records did not reflect a permanent partial loss. But he said he did send Sowell back to work with the opinion that he would "thereafter have a 25% partial loss of use of the left leg.” The foregoing testimony constitutes some evidence that Sowell’s leg injury of 1950 contributed to his present incapacity.

Sowell next contends that Special Issue No. 14 should not have been submitted to the jury because his leg injury of 1950 was a specific injury, while the latest injury of November 12, 1960, was a general one to his back; and that under these circumstances, § 12c of Article 8306 is not applicable.

Section 12c says, in part:

“If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association [the insurance company] * * * shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury * *

Sowell asserts that compensation for general injuries is predicated upon loss of earning capacity, while compensation for specific injuries is awarded regardless of whether such injury causes any impairment of earning capacity; and that therefore a specific injury (not involving incapacity, as such) cannot be offset under § 12c against a general injury where the test is loss of capacity. He points out that a specific injury cannot be used to show general incapacity unless the injury extends to and affects the body. Hence he argues that it was not intended that the prior specific injuries should be offset against a general injury to the body. In support of this proposition he cites Traders & General Insurance Co. v. Gibbs, 229 S.W.2d 410 (Tex.Civ.App.1950, n. r. e.), and Texas Employers’ Insurance Assn. v. Pierson, 135 S.W.2d 550 (Tex.Civ.App.1940, no-writ). Insofar as these authorities bear on the present case, they merely stand for the. proposition that where a prior compensable injury does not contribute to a claimant’s incapacity resulting from a subsequent injury, the provisions of § 12c have no application. There must, of course, be a finding that the prior compensable injury does contribute to the incapacity of the plaintiff.

In the Gibbs case, the employee had previously lost his left eye. He returned to work and later an 850-pound joint of pipe fell on his head and fractured his skull. In the trial court, plaintiff recovered for total and permanent incapacity. On appeal, the insurance company contended that under § 12c, the plaintiff could not recover “total and permanent” for a general injury because he had previously suffered a compen-sable specific injury. The court disagreed. The matter was resolved, however, on the basis of a jury finding, supported by evidence, that the prior specific injury did not impair his earning capacity at the time of the second injury. The facts were similar in the Pierson case: an eye injury and a subsequent chest injury. There was a finding that the previous eye injury did not contribute to the incapacity caused by the chest injury. It was held that § 12c was therefore not applicable.

We may agree with Sowell’s assertion that recovery may be had for specific injuries under § 12 of Article 8306 without loss of earning capacity, whereas loss of capacity is required to be shown for a general injury. But it has been stated that the Legislature in fixing particular amounts of recovery for specific injuries has simply standardized and simplified the compensatory scheme for the enumerated specific injuries. In thus providing for particular amounts for specific injuries, it has obviated trials and appeals on loss of capacity in the specific instances set out. Clark, “The Texas Workmen’s Compensation Act,” Vol. 22, Vernon’s Annotated Civil Statutes of Texas, Annotated, Commentary, page XL. Section 12c makes no distinction between specific and general injuries, and we are unwilling to write such a distinction into the statute. The fact that the Legislature has applied different methods in compensating general and specific injuries cannot be said to alter the clear terms of § 12c.

Sowell’s other points, if sustained, would entitle him to a remand of the case to the trial court for a new trial. It has already been determined that the cause must be remanded. It is unlikely that the same problems will arise on a new trial, and hence we need not write on those points.

The judgments of the trial court and the Court of Civil Appeals are reversed and the cause is remanded to the trial court.

CULVER, Justice

(dissenting).

In this case Sowell pleaded that he had no existing bodily incapacity, but that if he were mistaken in that respect then the same was aggravated, accelerated and lighted up by such injury. On the other hand the Insurance Company pleaded that if the plaintiff had any incapacity the same was not due to the injury hut due solely to the bodily condition, infirmities and injuries existing independently of the alleged injury and in the alternative if there was any incapacity it was not due to the alleged injury but to previous compensable injuries. In my view the case was submitted to the jury in accordance with the pleadings and the proof.

Sowell objected to Issue No. 16 on the ground that it contained the word “solely” for the reason that “[it] thereby precluded the jury in answering such issue from taking into consideration, in determining the percentage of incapacity due to the alleged injury of November 12, the incapacity plaintiff sustains or has sustained by reason of the injury of November 12, 1960, acting in conjunction with prior or subsequent diseases or congenital conditions or prior or subsequent injuries sustained under circumstances which do not authorize the application of Section 12(c) of Article 8306 thereto.”

In my opinion the elimination of the word “solely” from the issue would not effect any change in the sense and meaning of the issue. I can see no distinction between inquiring what percentage of the incapacity is due solely to the alleged injury and what percentage of the incapacity is due to the alleged injury, particularly when taken in connection with the definition of injury which is quoted in the Court’s opinion and to which no objection was leveled. As pointed out in the Court’s opinion the word was used apparently to distinguish the injury in question from previous compensa-ble injuries that Sowell had sustained. But that is the point on which this case is reversed and remanded, because as the Court says, the word “solely” “gave an overreaching effect to the issue.”

Sowell requested in his objections to the charge the submission of a special issue inquiring as to what percentage of his present incapacity resulted from the prior com-pensable injuries of 1956. The request was not made in accordance with Rule 273, Rules of Civil Procedure. Of course the issue is not an ultimate one but is eviden-tiary and ordinarily a defensive one. Traders & General Ins. Co. v. Watson, 131 S.W.2d 1103, Tex.Civ.App. The Court said it would be better to submit that issue to the jury. What I understand the Court to be saying is if you subtract the percentage of the disability caused by the previous injuries from his total incapacity it would leave the incapacity sustained by the plaintiff as a result of the injury of November 12th. I do not believe that method is sound. The ultimate question in this case is what was the incapacity caused by the injury in question. In my opinion Sowell failed to raise any valid objections to the Court’s charge as given.

So far as the points discussed in the opinion of the Court are eoncerned I would affirm the judgments of the courts below.


author: GREENHILL, Justice.

text:
    ANGELINA COUNTY, Texas and Leon Jones, Petitioners, v. Sam McFARLAND, Respondent.
    No. A-9752.
    Supreme Court of Texas.
    Jan. 8, 1964.
    Rehearing Denied Feb. 5, 1964.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Jack D. Hicks, Lufkin, for petitioners.
    Charles K. Ruth, Lufkin, for respondent.
   GREENHILL, Justice.

The controlling question is whether, under Rule 386, Texas Rules of Civil Procedure, the record in this case was filed in the Court of Civil Appeals in time to have given that court jurisdiction of the appeal.

The suit was instituted by Sam McFarland to recover a sum of money which was being held by the defendant, Leon Jones, the sheriff of Angelina County, Texas. Angelina County intervened, claiming that the money should be turned over to it. The district court, sitting without a jury, decided that the money should go to the county. The Court of Civil Appeals at Beaumont reversed the judgment of the district court, and rendered judgment that the money should be awarded to the plaintiff, McFarland. It directed that its opinion be not published under Rule 452, Texas Rules of Civil Procedure. On motion for rehearing, it was pointed out to the Court of Civil Appeals that the record had not been filed in that court in time under Rule 386. The motion was overruled without opinion. The only point of error before this Court is that the Court of Civil Appeals erred in rendering its judgment of reversal for the reason that it was without jurisdiction because of such late filing.

The following are the dates, all in 1962, relevant to the taking of the appeal, together with the dates relied upon by counsel :

June 15: trial was had in Lufkin, Angelina County. The case was heard by the Honorable O’Neal Bacon who lived in the nearby county of Newton. At the conclusion of the trial, Judge Bacon took the matter under advisement and returned to Newton.

June 23: the date of the judgment. The judgment concludes, “Signed this the 23 day of June, 1962.” The judgment recites that plaintiff McFarland and the defendant-sheriff Jones excepted and gave notice of appeal to the Court of Civil Appeals. June 23rd was a Saturday. Judge Bacon mailed the judgment to H. R. Rolston, attorney for Angelina County, with a letter dated June 26th which directed that it be filed. Rolston was then County Judge of Angelina County and was acting as its attorney. Copies of the letter went to the other counsel and to the Clerk of the Court, all at Lufkin.

June 25: Messrs. Hulon Brown and Dan Brazil, counsel for the defendant-sheriff Jones, filed a motion for new trial.

June 27: the attorney for the plaintiff McFarland received his copy of the letter from Judge Bacon. On this same day, counsel for the intervenor county, Rolston, and the district clerk received their copies of the district judge’s letter. Counsel for the plaintiff McFarland contends that this date, June 27th, is the date on which the judgment was entered for the purpose of beginning the times for the steps in the appeal. The judgment was handed to the district clerk by Rolston at Lufkin on June 27th and filed immediately. McFarland did not file a motion for new trial.

July 2: counsel for the plaintiff McFarland filed a written notice of appeal. It may be noted that the notice says that “the plaintiff * * * gives notice that he desires to appeal * * * from the judgment of said court rendered in said cause on the 23rd day of June, 1962.” [Emphasis added.] It may be further noted that the notice of appeal was given without the plaintiff’s having filed a motion for new trial. On this same date, July 2, plaintiff filed his appeal bond.

July 13: the defendant sheriff Jones filed an amended motion for new trial.

July 19: the district judge, Judge Bacon, overruled Jones’ amended motion for new trial.

August 8: the defendant Jones filed his cost bond and also a supersedeas bond.

August 23: the transcript and statement of facts were received and filed by the clerk of the Court of Civil Appeals. They had been mailed the day before, August 22, by counsel for the plaintiff McFarland.

In determining whether the record was filed in time in the Court of Civil Appeals, it is first necessary to determine the date from which the time began to run; i. e., when the judgment was rendered. Petitioners say that it is June 23rd, the date on which the judgment itself says the judgment was signed. Respondent says the date is June 27th, which is the first day upon which he, other counsel, and the district clerk in Lufkin knew that the judgment had been rendered. He further points out that June 27th was the date upon which the judgment was received and filed by the clerk.

Rule 306a states, “In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. This rule shall apply in determining the time within which to file a motion for new trial, notice of appeal, appeal bond * * * statements of fact in trial and appellate courts, transcript in appellate court * * [Emphasis added.]

Under the plain provisions of Rule 306a, June 23, the date on which the judgment recites that it was signed, is the date on which the time began to run for the appellate procedure of the case.

Respondent McFarland argues that the judgment could not have been rendered on June 23 because it fell on a Saturday. He attaches affidavits to the effect that the courthouse in Lufkin, Angelina County, is and was closed on Saturday, and that none of the county employees are expected to work except those of the sheriff’s department. Respondent’s argument is not sound. No rule or statute provides that a judgment may not be entered on Saturday. It has never been held that the courts of Texas cannot function or enter judgments on a day just because it is a Saturday. To so hold would render the courts powerless to grant, among other things, appropriate emergency relief or to grant injunctions or stay orders on those days.

Next is the question as to whether the record was filed in time. Rule 386 provides, “In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial * * [Emphasis added.] There is a provision for an extension of time by the Court of Civil Appeals; but no request for such extension was made, and none was granted.

So under Rule 386, the transcript and statement of facts must have been filed within sixty days from the date on which the judgment was rendered, or sixty days from June 23. Computing the time under the provisions of Rule 4, the 60th day, or the last day for filing the record, was August 22. The record was mailed on that date, but was not received until August 23. Rule 5 provides that if the record is properly addressed and mailed on the day before the last day, and other requirements of the rule are met, the record shall be deemed filed in time. But this record was mailed on the last day for filing. So Rule 5 is of no help to Respondent. And it was received by the clerk after the 60th day. The 60th day was not a Saturday, Sunday, or holiday. So it was filed too late under Rule 386. Rule 4 states that if the last [or 60th] day is a Saturday, Sunday, or legal holiday, the period runs, or is enlarged, until the end of the next day which is not a Saturday, Sunday, or legal holiday. The 60th day here was none of those days.

Respondent next contends that the time at which the sixty days for filing the record began to run was the date of the overruling of the defendant Leon Jones’ motion for new trial.

When a case is tried before the court without a jury, an appeal may he taken without the filing of a motion for new trial. But under Rule 323, a motion for new trial may be filed in a non-jury case. If no motion is filed, the time begins to run, under Rule 386, from the rendition of the judgment. If a motion for new trial is filed, Rule 386 provides for the time to begin to run when the motion is overruled. This court in Park v. Essa Texas Corp., 158 Tex. 269, 311 S.W.2d 228 (1958) held that when there had been a non-jury case and the appellant had filed a motion for new trial, though no motion was required, his time began to run from the overruling of his motion.

Here, however, Respondent filed no motion for new trial. It has been heretofore established that the appellant must base his appeal upon his own actions. Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624 (1935); Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (1959).

In Peurifoy, there was an instructed verdict against defendants Thompson and Peurifoy. As applicable here, Peurifoy filed a motion for new trial, but Thompson did not. Both filed their appeal bonds within thirty days from the overruling of Peuri-foy’s motion, but Thompson’s bond was not filed within thirty days from the entry of judgment. It was held that Thompson’s filing was too late, and his appeal was ordered dismissed.

In the Neuhoff Bros, case, Rule 356 required the filing of the appeal bond within thirty days after judgment or order overruling the motion for new trial. This is similar to Rule 386 as to the filing of the record except for the period of time allowed. In Neuhoff, a judgment was rendered for some plaintiffs. Other plaintiffs and the defendant desired to appeal. The appealing plaintiffs filed a motion for new trial, but the defendant did not. Thereafter the plaintiffs asked leave to withdraw their motion for new trial, and leave was granted. The defendant filed his appeal bond within thirty days from the action on plaintiffs’ motion for new trial, but more than thirty days from the entry of judgment. It was held that in determining the time for filing the appeal bond, the defendant could not rely upon another’s action in filing a motion for new trial. It was argued that until the plaintiffs’ motion for new trial was disposed of, no litigant knew whether an appeal would be necessary. This Court in the Neuhoff case held that the matter had been foreclosed by the Peurifoy case. And the matter is similarly foreclosed here. Since McFarland filed no motion for new trial, he must have filed the transcript and statement of facts in the Court of Civil Appeals within sixty days from the rendition of the judgment. He did not do so, and the Court of Civil Appeals therefore did not acquire jurisdiction of his appeal. This fact was pointed out to the Court of Civil Appeals on motion for rehearing in that court. That court erred in failing to dismiss McFarland’s appeal.

The Challenge to the Co-unty’s Representation

The Respondent McFarland filed a motion to dismiss the application for writ of error filed on behalf of the County and the sheriff by the law firm of Garrison, Ren-frew, Zeleskey, Cornelius and Rogers of Lufkin on the ground that the firm was not authorized to represent Angelina County or the sheriff. He challenges their authority under our Rule 12. He points out that the sheriff abandoned his appeal to the Court of Civil Appeals.

In the district court, the County was represented by the County Judge, and the sheriff was represented by the County and District Attorneys. There, too, McFarland challenged the County’s representation on the ground that there was no order of the Commissioners’ Court of that County authorizing the County Judge to represent the County. McFarland’s challenge was apparently overruled in the district court, or McFarland got no ruling on his challenge. The record is silent on this point. In any event, McFarland did not preserve the point in the Court of Civil Appeals that the County was not properly represented.

The County Judge, representing Angelina County, filed no brief in the Court of Civil Appeals for the County. And we are informed by an affidavit, which is not contested on this point, that he made no oral argument for the County in the Court of Civil Appeals. Before the opinion of the Court of Civil Appeals was rendered, the County Judge who had acted for the County went out of office and was succeeded by Judge O. L. Hubbard.

• The opinion of the Court of Civil Appeals was against the County and the sheriff. We are informed by the affidavit of Judge Hubbard that he then asked the Garrison firm to represent the County, and this request was joined in by the County Attorney. The Sheriff, Jones, also requested the Garrison firm to represent him. So that firm undertook to represent both the County and the Sheriff; and on the motion for rehearing in the Court of Civil Appeals, that firm pointed out the lack of that court’s jurisdiction.

Respondent McFarland challenged the Garrison firm’s right to represent the county and Jones in the Court of Civil Appeals on the motion for rehearing. That court ignored McFarland’s motion or challenge. It overruled the motion filed by the Garrison firm without opinion.

, Respondent McFarland has attached to his motion in this Court a number of affidavits which say, among others things, that the former County Judge has never withdrawn from the case; that he has never been requested to withdraw, even though he filed no brief for the County in the Court of Civil Appeals or this Court and did not make an oral argument in either of such courts. There is also an affidavit of the County Clerk in which he says that he has searched the records of the Commissioners’ Court and has found no resolution or order authorizing the employment of the Garrison firm. There are affidavits of two of the County Commissioners and one of their successors that the Commissioners’ Court had not authorized the Garrison firm to represent it, and that the former County Judge was representing the County and has not been relieved.

The challenge to the Garrison firm by McFarland is based on our Rule 12 which says :

“Any defendant in any suit or proceeding pending in any court of this state may, by sworn written motion stating that such defendant believes that such suit or proceeding was instituted against him or is being prosecuted against him without authority on the part of the plaintiff’s attorney, cause such attorney to be cited to appear before such court and show his authority for same, notice of which motion shall be served upon such attorney at least ten days before the trial of such motion. Upon the hearing of such motion, the burden of proof shall be upon the attorney appearing for the plaintiff to show sufficient authority from the plaintiff in such suit or proceeding to institute or prosecute the same. Upon his failure to show such authority, the court shall refuse to permit such attorney to appear in said cause, and shall dismiss the same if no person who is authorized to prosecute said cause appears. Such motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing thereof.”

Rule 12 was taken from Article 320 of the Texas Revised Civil Statutes of 1925, and is substantially similar thereto. The statute was repealed upon the enactment of the Rule. The statute had been on the books since the early days of Texas. Its apparent purpose was to discourage and to cause the dismissal of suits brought without authority. It was to protect defendants from groundless suits. It was thought that a person who was sued was entitled to known that the named plaintiff had in fact authorized the suit.

The statute and the Rule were plainly worded to give this right to defendants; to authorize defendants to challenge the bringing of the suit. The Rule says nothing about a plaintiff challenging the authority of defendant’s attorney. Moreover, by stating that the motion shall be heard and determined “before the parties have announced ready for trial,” the Rule and its predecessor statute have application to challenges in the trial court or the court in which the action is commenced.

In Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942), the suit was by the State for delinquent taxes. The State was represented by private counsel; i. e., by attorneys who were not the county or district attorney. In the Court of Civil Appeals for the first time, the defendant challenged the right of the State to be represented as it was. This Court held that Article 320 (now Rule 12) “provides for the exclusive method of questioning the authority of an attorney to bring suit.” It was held that the challenge came too late. The Victory case was followed as “the exclusive method of questioning the authority of an attorney to bring a suit” under Rule 12 in Cook v. City of Booker, Tex.Civ.App., 1942, 167 S.W.2d 232, no writ.

If it is assumed that McFarland did properly challenge the representation of the County [by the County Judge] in the trial court, he did not preserve the point on appeal to the Court of Civil Appeals.

There is authority for the proposition that the defendant himself can establish that the attorney purporting to represent him was unauthorized. In Parker v. Spencer, 61 Tex. 155 (1884), a consent decree had been entered against the defendant, Spencer, and the judgment had become final. Spencer brought a suit to have the judgment set aside. The jury found that Spencer was not represented by any authorized attorney and that he had not been served with process. It was held that the former judgment was not binding on him.

We do not have before us the question as to whether, as between the County and the Garrison firm, the latter was and is not authorized to represent the County. The County is not here complaining or asserting that the firm does not, or cannot, represent it. Sheriff Jones, by affidavit, in so far as he is able, has ratified the authority of the Garrison firm to represent him.

The motion to strike the application for writ of error is overruled.

The judgment of the Court of Civil Appeals is reversed, and the cause is remanded to that court with direction to dismiss the appeal of McFarland.

      . All rules referred to herein are Texas Rules of Civil Procedure, and are carried in Vernon’s Texas Rules of Civil Procedure, Annotated.