author: NORTHCUTT, Justice. DENTON, Chief Justice

text:
    TEXAS EMPLOYMENT COMMISSION and Shamrock Oil & Gas Corporation, Appellants, v. William KRAFT et al., Appellees.
    No. 7667.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1966.
    Rehearing Denied Jan. 23, 1967.

      Waggoner Carr, Atty. Gen., Hawthorn Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., H. Grady Chandler and J. H. Broadhurst, Asst. Attys. Gen., E. A. Boynton, Austin, of counsel, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Sam Houston Clinton, Jr., Austin, H. B. Porter, Dumas, for appellees.
   NORTHCUTT, Justice.

This is an appeal by the Texas Employment Commission and the Shamrock Oil & Gas Corporation, defendants below, from a judgment of the District Court of Moore County, Texas, in a proceedings tried before the court without a jury. In the trial court the suit styled William E. Henry et al., No. 4484, in the court below in which Travis Truelock later intervened was consolidated with a suit in which William Kraft was plaintiff and which was numbered 4476 on the trial court docket. In each of these actions the Texas Employment Commission and Shamrock Oil & Gas Corporation were the defendants.

In each of such actions so consolidated, the respective plaintiffs and intervenor appealed to the district court from decisions of the Texas Employment Commission holding that the respective plaintiffs and inter-venor were not entitled to unemployment compensation benefits under the Texas Unemployment Compensation Act. The judgment of the trial court reversed each of the decisions of the Texas Employment Commission and held that each of the plaintiffs and the intervenor are, contrary to the de-cisión of the Texas Employment Commission, entitled to receive unemployment compensation benefits.

The complainants, plaintiffs, in the trial court will hereafter be referred to as ap-pellees and Shamrock Oil & Gas Corporation and Texas Employment Commission, defendants, will be referred to as appellants.

This appeal involves the proper construction of the Texas Unemployment Compensation Act. We think the real issue here is whether the Commission erred when it determined the appellees were disqualified to receive benefits under Subsection (d), Article 5221b-3, Vernon’s Ann.Tex.Civ.St. That article provides that an individual shall (emphasis ours) be disqualified for any benefit period with respect to which the Commission finds that his total or partial unemployment is due to the claimant’s stoppage of work because of a labor dispute at the factory, establishment or other premises at which he is or was last employed. The Commission found that the appellees were disqualified to receive benefits under the act because their total and partial unemployment was due to the appellees’ stoppage of work because of a labor dispute at the place where they were last employed. Under the matter here involved, we think it is clear that the reference to the place they were last employed has reference to the work for Shamrock Oil & Gas Corporation. In other words, the suit in the district court was brought to test the validity of the Commission’s order and to see if there was substantial evidence to support the ruling of the Commission.

Appellees were members of the union here involved and Shamrock Oil & Gas Corporation recognized and dealt with the union. Prior to August 9,1964, negotiations were being carried on between Shamrock and the union involving wages and working conditions which negotiations ended in an impasse and the termination of all contracts between the union and Shamrock when a strike was commenced by the union on August 9, 1964. Picketing of Shamrock’s facilities was commenced on August 9,1964. The signs carried by the pickets stated in substance that the union was on strike against Shamrock Oil & Gas Corporation.

Each employee in the bargaining units was advised by letter dated August 9, 1964, signed by the employer’s president, that the company had the right to continue the operation of its facilities and properties even during the progress of a strike and that the company would so continue the full operation of its plant and at 9:00 a.m. on Wednesday, August 12, 1964, would begin employment on a permanent basis new personnel to replace striking employees. Such letter further advised all employees that any employee then on strike who desired to return to work prior to his replacement was so privileged but under no compulsion from the company to do so. The strike so begun on August 9, 1964, was an economic strike involving wages and working conditions and not an unfair labor practice strike resulting from unlawful conduct of the employer.

Immediately after August 9, 1964, the employer continued to operate its plants and facilities through supervisors, non-bargaining unit personnel, and employees who did not strike and, after August 12, 1964, also by newly hired replacements for striking employees and striking employees who returned to work. In a negotiating session on September 30, 1964, the union submitted a written proposal for settling the strike which proposal involved the return to work of all striking employees. The union’s proposal was rejected by the company, which took the position that newly hired employees hired as permanent replacements, would not be laid off to make room for strikers to return to work. In rej ecting the union’s proposal, the company reported to the Union Negotiating Committee the company had hired a large number of replacements and did not have available jobs for all strikers without discharging permanent replacements, which the company was not willing to do since the replacements had been employed on a permanent basis and many had given up permanent jobs to go to work for Shamrock. Between August 9, 1964, and October 5, 1964, the employer hired approximately 212 new employees as permanent replacements in the bargaining units involved. Just before October 5, 1964, the number of employees who did not go on strike or who went on strike but returned to work before October 5, 1964, totaled approximately 83. The company kept the negotiating committee informed as to the number of replacements that were employed first reporting 60, next 105 and then over 200. On or about October 5, 1964, and a day or so thereafter, some 100 strikers and others thereafter before' October 19, 1964, personally appeared at or in one or the other of the employer facilities and offered to return to work. Between October 5, 1964, and October 19, 1964, Shamrock took back or reinstated approximately 105 to 110 strikers.

By October 19, 1964, every existing job in the units represented by the union had been filled except one job of a welder first-class because there was no applicant qualified to do the work of such qualifications. Each of the striking employees who appeared at one of the facilities of the employer and requested reinstatement crossed the picket lines around such facilities with the permission of the union. The picket lines around property of the employer were continuously maintained from the beginning of the strike on August 9, 1964, until the time of hearing in the district court in December 1965. Though the picket signs were changed on October 19, 1964, to claim that Shamrock employees were “locked out.”

At the hearing in December 1965 it was stipulated by the plaintiffs’ counsel that a labor dispute between the union and employer continued to exist to such date.

Shortly prior, to October 5, 1964, top-level meetings of high level union officials were held in which it was concluded that the strikers could and would be told they could seek reinstatement that they could cross the picket line and a committee was appointed to notify the people to that effect. The striking employees were granted written permission by the union to cross the picket line which was being maintained at that time. Striking employees were instructed to return to the union hall after seeking reinstatement and report back what had happened. The majority of the striking employees offered themselves for re-employment individually but those who did not were covered by blanket letter written by Mr. Thornbury, the international representative. There was other testimony concerning the actions of appellees and their participation in the strike even up to the time of the hearing in the district court.

We do not believe the case of Texas Employment Commission v. Hodson, 346 S.W.2d 665 (Tex.Civ.App. — Waco, 1961) applies herein. The facts in that case are different from the facts here involved. There the employee voluntarily crossed the picket line of his union and unconditionally offered to go back to work but was told there was no work for him because the employer had replaced him and filled his job. There is nothing in that case to show that the appellee participated further in the union. It is stated in Subsection (d), Article 5221b-3: “[Pjrovided that this subsection shall not apply if it is shown to the satisfaction of the Commission that: (1) He is not participating in or financing or directly interested in the labor dispute”. Appellees herein did not show to the satisfaction of the Commission that they were not participating in or directly interested in the labor dispute. Appellees crossed the picket line with the consent of the union and were to report back to the union, and continued to take part in the picketing. We think the evidence clearly shows in this case that appellees were participating and directly interested in the labor dispute which still existed at the time of the trial in the district court.

It is now well established in this state that an appeal from the orders of an administrative agency the decision of the agency will be sustained if it is reasonably supported by substantial evidence introduced in the trial court. Hawkins v. Texas Co., 146 Tex. 511, 209'S.W.2d 338 (1948); Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420 (1946) ; Todd Shipyards Corp. v. Texas Employment Commission, 245 S.W.2d 371 (Tex.Civ.App. — Galveston, 1951, writ ref’d nre).

See Texas Employment Commission v. Camacho, 394 S.W.2d 35 (Tex.Civ.App.— Dallas, 1965, no writ) as follows:

“We agree with appellants that this finding and the judgment are erroneous. Proper application of the substantial evidence rule precludes the courts from substituting their findings or conclusions for those of an administrative agency. Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 714. All the courts may do is to adjudge the reasonableness of the agency’s action' on the basis of the evidence admitted in the judicial proceeding. The issue is purely one of law, for ‘the legal test of the reasonableness of an order of an administrative agency is whether it is reasonably supported by substantial evidence and not whether it is supported by a preponderance of the evidence.’ Southern Canal Co. v. State Board of Water Eng., 159 Tex. 227, 318 S.W.2d 619, 623; Texas Company v. Texas Employment Commission, Tex.Civ. App., 261 S.W.2d 178, 183, wr. ref. n. r. e.; Railroad. Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029; Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; Todd Shipyards Corp v. Texas Employment Commission, Tex.Civ.App., 245 S.W.2d 371, wr. ref. n. r. e.; Board of Fireman’s Relief & Retirement Fund, etc. v. Marks, ISO Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965.”

We think the rule in these kind of cases has been well stated and determined in the case of Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 at 1029 (1942) as follows:

“Much of the confusion that exists concerning the effect to be given to the so-called findings of fact by an administrative agency, upon a contest of an order of such agency in court, arises from the failure to take into consideration the kind of order issued by the agency, and the character of contest that is being made thereon. As above indicated, our statutes do not provide for the making of any findings of fact by an administrative agency. Nevertheless, when the validity of an order of such an agency is contested in court, certain presumptions are indulged in favor of the validity of such order in some instances. If the matter covered by the order is one committed to the agency by the Legislature, and involves the exercise of its sound judgment and discretion in the administration of the matter so committed to it, the court will not undertake to put itself in the position of the agency, and determine the wisdom or advisability of the particular ruling or order in question, but will sustain the action of the agency so long as its conclusions are reasonably supported by substantial evidence. This is so because, since the Legislature has seen fit to vest the authority to exercise sound judgment and discretion in the particular matter in the administrative agency, courts will not undertake to usurp the powers committed to the agency, and to exercise the agency’s judgment and discretion for it. For example, in contesting an order of a commissioners’ court fixing a tax rate, or an order of a school board concerning the management of schools, the court will not put itself' in the position of the administrative agency for the purpose of determining whether or not the action was wise. Wright v. Allen, Tex.Civ.App., 257 S.W. 980, par. 4, writ refused; Young County Board of School Trustees v. Bailey, Tex. Civ.App., 61 S.W.2d 130, par. 2, writ refused. In such a case the issue is not whether or not the agency came to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. Hence it is generally recognized that where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence. This does not mean that a mere scintilla of evidence will suffice, nor does it mean that the court is bound to select the testimony of one side, with absolute blindness to that introduced by the other. After all, the. court is to render justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.”.

Where the legislature has granted to the administrative body the discretionary power the court will not substitute its own discretion for that of the administrator and if the actions of the administrative agency are reasonably supported by substantial evidence introduced before the court, the court should affirm the administrative agency’s actions. Texas Co. v. Texas Employment Commission, 261 S.W. 2d 178 (Tex.Civ.App. — Beaumont, 1953, writ ref’d nre) and the many cases there cited.

We are of the opinion, and so hold, that the trial court erred in setting- aside the decision of the Texas Employment Commission holding that the appellees were disqualified for employment benefits since such decision was reasonably supported by substantial evidence.

Judgment of the trial court is reversed and rendered.

DENTON, Chief Justice

(dissenting).

I respectfully dissent. The result reached by the majority is in direct conflict with Texas Employment Commission v. Hodson (Tex.Civ.App.) 346 S.W.2d 665 (Ref. N.R.E.). In my opinion the two cases are not distinguishable. In Hodson the court upheld the trial court’s judgment which set aside the Employment Commission’s order denying benefits to a striking claimant. In so holding, the court held:

“When appellee crossed his own picket line during the strike and was refused employment because there was no work available due to his job having been filled by another, his unemployment was no longer ‘because of a labor dispute at the factory’; it was because there was no job for him. Resort to the escape clauses, subsection (d) (1) and (2) is not required, since the basic disqualification did not then exist. A new cause of involuntary unemployment had then displaced the original disqualifying cause.”

The result of that case was approved by the Supreme Court. In my opinion it is incumbent upon this court to follow the ruling of the Hodson case.

I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. H. D. BREWER, Appellee.
    No. 7672.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1966.
    Rehearing Denied Jan. 23, 1967.
    Evans, Pharr, Trout & Jones, Lubbock, Charles B. Jones and Carlton B. Dodson, Lubbock, of counsel, for appellant.

      Huff & Bowers, Lubbock, Forrest Bowers, Lubbock, of counsel, for appellee.
   NORTHCUTT, Justice.

This is a workmen’s compensation case. Plaintiff filed his original petition herein, appealing an award by the Industrial Accident Board, alleging, among other things, total and permanent disability under the Workmen’s Compensation Act, The defendant filed its original answer. The case was tried before a jury. The court, in its charge, submitted to the jury thirteen special issues for answers thereon. The court, based on the jury’s findings on the special issues, entered judgment for the plaintiff in the amount of $9,645.09. From that judgment the defendant perfected this appeal. Aetna Casualty & Surety Company will hereafter be referred to as appellant and H. D. Brewer as appellee.

Since the appellant’s appeal is based solely upon the submission of Special Issues Nos. 7 and 9, we will not refer to the remaining issues. Those issues and answers thereto are as follows:

“SPECIAL ISSUE NO. 7
“What do you find from a preponderance of the evidence to be the duration of such total incapacity to labor, if any?
“Answer by giving the number of weeks, if any.
“ANSWER: 300 weeks”
“SPECIAL ISSUE NO. 9
“On what date, if any, do you find from a preponderance of the evidence that such partial incapacity, if any, began or will begin ?
“Answer by giving the date, if any.
“ANSWER: June 24, 1970”

Appellant presents this appeal upon five points of error. As to Special Issue 7 it is contended by the first, third and fourth points that there was insufficient evidence and such findings were contrary to the overwhelming weight and preponderance of the evidence; there was no evidence to support the jury finding and that there was no evidence to support the finding that appellee sustained a total incapacity for a period of 300 weeks following his injury as the undisputed evidence showed that appellee had been working and earning substantial sums. As to Special Issue 9 it is contended by the second and fifth points that there was insufficient evidence to support the jury finding and such finding was contrary to the overwhelming weight and preponderance and that there was no evidence to support the jury finding.

Under appellant’s contention of no evidence, insufficient evidence and such findings were contrary to the overwhelming weight and preponderance of the evidence we will consider the case under, the rules pronounced by the Supreme Court in the case of In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

There were only three witnesses to testify in the case. They were appellee, his wife and his brother. Appellee’s testimony substantially was that he was injured sometime during the night of September 16, 1964, about 8:30 p. m. as he was working at night. He was injured when he picked up an iron shaft and took about two or three steps when a pain hit him in the hip and he froze. The first pain was in his left hip and went all the way to his feet just on the one leg. He couldn’t move or turn loose of the shaft as he just froze. His helper came and took the shaft out of his hands. He was to get off work at 2:00 a. m. but after being hurt he left at 10:00 p. m. and went home. He did not go back to work that afternoon as he was supposed to do but went to see a doctor. The doctor told him he thought he had a pulled muscle and gave him some tablets and showed him some exercises to do. He went home and got down on the floor to do the exercises and the pain hit him. It was an hour before he was able to get off of the floor. He then went to another doctor that night (Thursday) around 6:30 p. m. The doctor took X-rays and suggested physical therapy. He took therapy treatments Friday and Saturday; stayed at home Sunday and went back to see the doctor Monday and the doctor put him in the hospital and put him in traction. They would take him out of traction and give him this therapy treatment twice a day and then put him back in traction. He was in traction eleven days twenty-four hours a day. He testified in detail as to other treatments given him by the doctors and then was operated on October 1, 1964, by Doctors Mays and Evans. The hospital record as to the operation was introduced which was as follows:

“Name of patient, H. D. Brewer, Room Number 626, 4112 31st Street, Lubbock Texas; age 31; sex, male; date 10-1-64; surgeon, Evans. Preoperative Diagnosis; Abnormal lumbar disc, L-4, -5, or L-5, S-l, left side. Postoperative diagnosis: Extruded intervertebral disc. L-5, S-l, left side. Name of operation: Excision of extruded intervertebral disc, L-5, S-l, left side; Exploration of the L—4, -5 in-terspace, left side. Procedure: After the patient had been anesthetized he was turned onto his abdomen with the usual shoulder and hip supports positioned. The low back was prepared with ether and merthiolate, and sterile drapes were applied. A midline incision was made in the spinous process of L4 to S-l. Using subperiosteal dissection, the muscles were reflected laterally from the spinous processes of L-4, -5, and S-l. The laminectomy retractor was placed. Attention was directed to the L-5, S-l interspace on the left. Here the inferior border of the lamina of L-5 was removed with a Love-Kerrison punch. The window of ligamentum flavum was then opened and enlarged with the Love-Ker-rison punch. The s-l nerve root and dural sac were pushed posteriorly and were rather tight. They were bound down to the tissues beneath them. They were dissected medial, and a hump of disc was evident. This had extruded through the annulus, but not through the posterior and longitudinal ligament. The ligament was opened and the fairly large chunk of extruded disc tissue was removed. The interspace was cleaned out with a curette and pituitary rongeurs, and the nerve root was decompressed into the foramen. It seemed fairly loose at the end of the procedure. Gelfoam was placed in the inter-space and around the nerve root. A similar exposure was made at L-4, -5, on the left. Here there were considerably large veins laterally to the nerve root. The nerve root seemed to be slightly tight, however. The annulus was flat and not particularly soft. It was felt that it did not need to be opened, and gelfoam was placed over the ligamentum flavum defect. The bleeding points in the muscles were controlled with electrocautery. Wound was irrigated with saline and closed with the interrupted #00 silk in the deep fascia and interrupted #000 silk in the superficial fascia and skin. A dressing was applied, and the patient returned to the recovery room in good condition.”

He was in the hospital approximately ten days after the operation and then went to his father’s home where he stayed a couple of weeks. His incision was ruptured and he went back to see the doctor and was put back in the hospital and was again operated on by Doctors Mays and Evans about December 3, 1964. He was in the hospital this time from December 3, 1964, to January 3, 1965. He then went to his brother’s home and stayed until he went back to work around February 20, 1965. When he went back to work they gave him lighter work but he suffered and other employees helped him but he did the best he could, felt he had to work to make a living. He was not able to work and his back was giving him trouble and the doctor advised him to stay at home. He was off from work a week when he was fired about June 4. He has never had a job since. He applied at all the employment agencies there in Lubbock and went out on several interviews at employers’ premises and continued this effort to secure employment through June, July and the first half of August but couldn’t find a place that would hire him. He also checked other places. He was unable to get a part-time job. He bought on credit some hay bailer equipment and tried to bail hay for other people but could only do that part of the time and would have to stop and lay down. He hasn’t noticed any improvements and doesn’t think he will ever be able to get and hold a job. Appellant offered no evidence other than to cross-examine appellee’s witnesses.

Ervin Brewer, appellee’s brother, testified that before his brother was operated on (after the accident) he was not able to get around freely and there were times that he was unable to or did not go to bed all night but would stay in a chair all night. Since the operation appellee cannot stoop or get around as fast. Appellee’s wife testified that going on an automobile trip for about five hours they had to stop for the appel-lee to rest and that at the end of the trip he was completely miserable. She has a job and works and also has to help him in his hay bailing work. She further testified that he could not sleep at night and from her observation of his condition she didn’t think he could obtain and hold a job in the usual task of work. All three witnesses gave other evidence as to appellee’s condition. The evidence indicates that appellee has pain whether he works or not; that he is not able to do the work of a kind which he was doing when he was hurt because it requires lifting and other strenuous work which he cannot do.

It is the contention of appellant that there is no evidence that the duration of appellee’s total incapacity was 300 weeks and no evidence that his partial incapacity would begin on June 24, 1970. We cannot agree that that is true. We know of no rule determining the extent of damages for pain and suffering in a common-law damage suit other than as assessed by a jury. We think the evidence here clearly shows that appellee was totally incapacitated for some period of time and also that he was partially incapacitated. Whether an employee is disabled in whole or in part is usually a question for the jury to determine. Commercial Casualty Ins. Co. v. Strawn, 44 SW.2d 805 (Tex.Civ.App. — Waco, 1931, writ ref’d).

In the case of Traders & General Insurance Company v. Vaughn, 317 S.W.2d 800 (Tex.Civ.App. — Eastland, 1958, writ ref’d nre) the appellee was injured on April 11, 1956, and was discharged from work on June 1, 1956, which could not have been more than eight weeks. In that case the jury found appellee sustained total incapacity to work for a period of 35 weeks and thereafter suffered or would suffer partial incapacity for a period of 156 weeks. We think that case is directly in point here.

It is stated in Texas Employers Insurance Association v. Hoover, 382 S.W.2d 174 (Tex.Civ.App. — Dallas, 1964, writ ref’d nre) as follows:

“This case is another in a series of appeals that have been presented in recent years to this court, as well as other appellate courts of Texas, in which the insurance carrier has seriously sought to strike down a jury finding of permanent disability where the injured workman produced no medical testimony incorporating an opinion relating to permanency of the injury but relies solely upon lay testimony from which the jury may reasonably infer that the injuries will be permanent. On two occasions within the past year we have had occasion to reannounce the rule, which we believe to be now well established in Texas Jurisprudence, that permanent disability may reasonably be inferred from circumstantial evidence produced by lay witnesses and this is true even though such evidence is contradicted by the testimony of medical experts. Travelers Ins. Co. v. Wade, Tex.Civ.App., 373 S.W.2d 881, err. ref. n. r. e., and Travelers Ins. Co. v. Arnold, Tex.Civ. App., 378 S.W.2d 78, nó wr. hist. In those cases we had occasion to set forth numerous authorities which we deemed controlling and which we believe to apply to the instant appeal.” (Emphasis ours.)

See also Travelers Insurance Company v. Arnold, 378 S.W.2d 78, (Tex.Civ.App.— Dallas, 1964, no writ) where it is stated:

“Any doubt we may have as to whether this evidence actually supports the jury finding of permanent incapacity must be resolved in favor of the right of the injured workman to receive compensation. Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318; Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73.”

Judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Jack POWELL, Appellee.
    No. 6870.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 19, 1967.
    Orgain, Bell & Tucker, Beaumont, for appellant.
    Jones, Jones & Baldwin, Marshall, Alto Watson, Beaumont, for appellee.
   PARKER, Justice.

Under the provisions of the Federal Employers’ Liability Act, Jack Powell sued Kansas City Southern Railway Company for damages resulting from personal injuries. In response to Special Issues the jury found plaintiff’s damages in the sum of Eighty Thousand Dollars. A judgment in the sum of Seventy-six Thousand six hundred Dollars was entered against the defendant, the $80,000 being credited with advancements made by the defendant to plaintiff prior to trial. Defendant has perfected its appeal. The parties will be designated as in the trial court.

Defendant contends the jury’s answer to the special issue on damages is of such magnitude as to be clearly excessive, resulting from a disregard of the evidence and an abuse of discretion. Defendant also contends the evidence is insufficient to support the jury’s answer. Under such points of error, defendant urges the jury’s answer should be set aside and/or disregarded and remittitur required. A third point of error was waived upon submission, being that such answer was so grossly excessive and of such magnitude to show the jury was influenced by passion and prejudice, and therefore, said answer should be set aside and/or disregarded and a new trial granted.

Rule 440 of the Texas Rules of Civil Procedure provides in part:

“In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the verdict and the judgment of the trial court is excessive then said cause should be reversed for that reason only, then said appellate court shall indicate to such party or to his attorney within what time he may file a remittitur of such excess. * * * ”

Plaintiff Jack Powell was married, had no children, was born in Oklahoma where he spent most of his life. His wife is a school teacher. He moved to Leesville, Louisiana, about March 1, 1963, and was injured on March 6, 1963. At the time of trial he was 44 years of age with a life expectancy of 28.67 years.

Powell had a high school education and two years at a business college under the G. I. Bill. He worked in a small dry goods store in Poteau, Oklahoma owned by his father until 1948. This store could not support two families. He went to Everett, Washington, where he worked a few months as a laborer. Then he was employed by Montgomery Ward as a furniture salesman. In 1949 his father had a heart attack, so he returned to run his father’s store, then in financial difficulty. He kept this business going until 1960 when because of depopulation of the trade area and unfavorable business conditions, the store was closed. In 1950 he began to work to some extent for a railroad. For some six years he did no work for the railroad but in 1959 he earned $100 to $300. The railroad was in the process of cutting back on the use of steam and the number of firemen. Plaintiff’s specialty was as fireman. In Oklahoma there was little opportuity for plaintiff to earn much money. His capacity to make money, if he had the opportunity, is largely a matter of speculation prior to 1960.

In 1960 he worked for S & G Clothiers, Fort Smith, Arkansas, for three months, making $350 a month plus a percentage. Next, for three months, he worked for Boston Clothing Store for $250 a month. Then he sold cars for two or three months, averaging some $300 a month. This was in 1960-61. Working for the railroad he made $535 in 1961 and $880 in 1962. The above is all the evidence of money earned by plaintiff in 1961 and 1962. His average annual income for 1961 and 1962 could not have exceeded $2100 per year.

On March 1st, 1963, plaintiff moved to Leesville, Louisiana where he began working for the railroad running through Texas on the southern part of the line, losing his seniority rights on the northern part of the line. Had he wanted to, he could have returned to the northern part of the line and re-established his seniority standing. On March 6, 1963 while working as a fireman in the Port Arthur yards, Powell, in getting off an engine, stepped in a soft place on the roadbed, his leg buckled and he sustained the injuries upon which he sued. The injury consisted of a comminuted fracture of the right knee with breaks extending into the right knee joint.

On the same day plaintiff was admitted to the hospital, operated on and a cast placed on his leg. He was in the hospital three weeks. After some two months he returned to the hospital. The cast and pins were removed. For three weeks therapy was given to help him regain strength in the leg. After some 14 months the doctor told Mr. Powell he had done all that could be done and that he had a lot of disability in his leg and knee. He suffered considerable pain while in the hospital. At the time of trial he was using a cane, had trouble in walking on an uneven surface and if he stood on his legs for any length of time there would be some swelling with some pain. He has a rough knee joint causing this.

Around April 10, 1964 he went to work on the railroad and continued to work until May 7, 1964 when all firemen were laid off. Arbitration Award Number 282 abolished the job of fireman as of May 7, 1964. In this latter period of work he earned $900.00. So long as his work was not particularly difficult, he did not have much trouble except his leg would bother him if he stood for any length of time and he had difficulty lifting heavy objects. Nevertheless, he had a good deal of overtime. The crew helped him.

The plaintiff had a functional loss of approximately 50% of the right leg. He could bend at the waist if the knees were not involved.

If Powell had returned to Oklahoma and there worked for the railroad he would have worked only five months in 1964 with earnings varying from $20 to $83 a month. If Powell had worked for the railroad on the southern end of the line from March 6, 1963 through May 5, 1964 he would have earned not over $6400 plus separation pay of $1500. He would have been separated from the service under the arbitration award. Actually, he was given $300 when he quit and earned $900. Thus, the monetary loss by Mr. Powell before the date of trial was $6700.

Abolishing the job of fireman did not bar plaintiff from working for the railroad in classifications other than fireman. In such other classifications, there is no evidence what he could have made or make. He liked railroad work. He could not do the type of railroad work he had been 'doing. He enjoyed fishing and hunting. He has a substantial injury and is entitled to a substantial award. Mr. Powell has some earning capacity by reason of his education, experience and training. Such employment would be partly sedentary and not the type of work required by hard manual labor.

No two injuries are alike and do not have the same consequence or results insofar as damages are concerned.

“It is recognized that there should be reasonable uniformity as to the amount of verdicts and judgments in the various cases.”

Defendant has cited a number of Texas cases involving the loss or loss of use of a leg. Plaintiff has adjusted the awards to the purchasing power of the dollar in 1966. Such opinions are: Continental Bus System Inc. v. Toombs, Tex.Civ.App., 325 S.W.2d 153 (1959); Hobbs v. Grant, Tex.Civ.App., 314 S.W.2d 351 (1958); Texas & NO Railroad Co. v. Pettit, Tex.Civ.App., 290 S. W.2d 730 (1956); Davis Transport, Inc. v. Bolstad, Tex.Civ.App., 295 S.W.2d 941 (1956); Byrnes v. Stephens, Tex.Civ.App., 349 S.W.2d 611 (1961); Gulf, Colorado & Santa Fe Ry. Co. v. Deen, Tex.Civ.App., 306 S.W.2d 171 (1957).

This court is required to exercise “its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation” and apply the rule set forth in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993, 994 (1916), which was re-affirmed in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959).

Considering the evidence and the authorities cited by plaintiff and defendant this court under Rule 440, T.R.C.P., finds the judgment excessive and suggests a re-mittitur of $12,000.00. If plaintiff (Powell) will file in this court, within two weeks from the date of this opinion and judgment, a remittitur of $12,000.00, the judgment will be reformed and affirmed for the sum of $64,600.00; otherwise, the judgment will be reversed and remanded.


author: BELL, Chief Justice.

text:
    FIRENCE FOOTWEAR CO., Plaintiff in Error, v. Leonard CAMPBELL et ux., Defendants in Error.
    No. 14909.
    Court of Civil Appeals of Texas. Houston.
    Feb. 2, 1967.
    Rehearing Denied Feb. 23, 1967.
    Stafford, Williams & Weitinger, Warren K. Williams, Houston, for appellant.
    Asberry B. Butler, Jr., Houston, for ap-pellees.
   BELL, Chief Justice.

The appeal reaches this Court by way of writ of error. The appeal is by Firence Footwear Company, a foreign corporation, from a default judgment. We will refer to Plaintiff in Error as defendant. We will refer to Defendants in Error as plaintiffs.

The defendant attacks the default judgment as being void because of want of jurisdiction over its person because of want of proper service. There was no appearance in any manner by defendant in the trial court.

Defendant was first made a party to the suit by plaintiffs’ “First Amended Petition.” In the petition plaintiffs alleged they complained of “Globe Discount City, a Texas Corporation and Firence Footwear Co., a New York Corporation, 108 Wooster Street, New York, New York, * * It is then alleged that “service on Firence Footwear may be had at 108 Wooster Street, New York City, New York, through the Secretary of State, Austin, Texas.”

The plaintiffs then assert as their cause of action that plaintiff, Florence Campbell, wore some shoes she purchased in Houston from Globe Discount City, and they contained chemicals or dyes placed in them by the “defendants or their agent.” These chemicals or dyes were alleged to have caused Mrs. Campbell’s feet to become blotched and to change color. Then resulting damages are specified and judgment was sought for $105,000.00.

The citation was addressed in this manner: “To Firence Footwear Co., a New York corporation — service may be had by serving the Secretary of State, Austin, Texas.”

There also appears in the record a “Certificate of Service from Secretary of State, State of Texas.” It was filed in the office of the District Clerk of Harris County September 8, 1965. It certifies that the citation in the case was delivered to the Secretary of State on June 18, 1965, and that a copy was forwarded on June 24, 1965 by Certified Mail, Return Receipt Requested, to Firence Footwear, 108 Wooster Street, New York City, New York, in accordance with the provisions of Article 2031b, Vernon’s Annotated Civil Statutes of Texas. It is further certified that the return receipt was received bearing the signature of the addressee’s agent and was dated June 29, 1965.

On August 11, 1965, Globe Discount City was dismissed, without prejudice, on motion of plaintiffs.

On October 20, 1965, judgment by default was rendered against the defendant for $5,328.00 with interest from October 11, 1965. The judgment recites: “ * * * the Defendant, Firence Footwear Company, comes not, and it appearing to the Court that the said Defendant, Firence Footwear Company has been duly and personally served with a duty certified copy of the summons and complaint in this action, as required by law and directed by law, and by a person duly qualified and empowered by the law to serve same * * *; that Defendant has not appeared herein, and that no answer, motion, or other pleading has been served or filed in this action, by the said Defendant, Firence Footwear Company * * * ” that judgment is rendered by default against the Defendant.

Review by writ of error constitutes a direct attack on the judgment and in such an attack the question is whether the lack of jurisdiction is apparent on the face of the record. While ordinarily presumptions are made in support of a judgment, no such presumptions are made in a direct attack on a default judgment. This same rule applies to inferences of jurisdictional facts in a direct attack. Jurisdiction in this type of case must affirmatively appear from the face of the record. McKanna v. Edgar, 388 S.W.2d 927 (Tex.Sup.), and authorities there cited.

From our analysis of the plaintiffs’ amended petition it will be noted that it only appears that the defendant was a New York corporation. It is nowhere alleged that it was doing or had done business in Texas. It was not alleged that it was authorized or had a permit to do business here. It was nowhere alleged that it had failed to appoint an agent for the purpose of service.

Under Article 8.10, Texas Business Corporation Act, V.A.T.S., if defendant had a permit to do business, service on the Secretary of State is authorized where the corporation has failed to appoint an agent.

Article 2031, V.A.T.S., providing for service on a foreign corporation, provides for service on certain officers and agents and makes no provision for service on the Secretary of State.

Article 2031a, V.A.T.S., provides in substance that no foreign corporation shall transact business in this State without appointing an agent for service. If there is a failure to do this, then service may be on the Secretary of State.

Article 2031b, Section 1, provides, among other things, that a foreign corporation that is required to appoint an agent and fails to do so may then be served by service on the Secretary of State. Section 2 of said Article provides that a foreign corporation not required to designate an agent for service but which is doing business in the State may be served by service upon the person in charge of the business. Section 3 provides that if the foreign corporation is doing business in the State and does not designate an agent and has no regular place of business in the State, it may be served through the Secretary of State.

Plaintiffs’ pleading having alleged no facts authorizing service on the Secretary of State and the record reflecting only service on the Secretary of State, and it affirmatively appearing there was no appearance by defendant, the trial court was without jurisdiction to render a default judgment.

The defendant by appearing to attack the judgment is presumed to have entered its appearance to the term of court at which the mandate may be filed. Rule 123, Texas Rules of Civil Procedure; McKanna v. Edgar, supra.

Heretofore by written opinion reported in 406 S.W.2d 516, we overruled plaintiffs’ motion to dismiss the appeal. We reaffirm that holding.

Reversed and remanded.


author: CHADICK, Chief Justice.

text:
    Philip FISHER, Appellant, v. Ben F. SHIPP, Appellee.
    No. 7772.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 6, 1966.
    Rehearing Denied Dec. 27, 1966.

      Paul W. Persons, Baker, Botts, Shepherd & Coates, Houston, for appellant.
    John L. Hill, W. Douglas Matthews, Jr., Robert L. Steely, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for ap-pellee.
   CHADICK, Chief Justice.

In this common law tort action the trial court awarded the plaintiff $10,000.00 to compensate for injury and expense negligently inflicted on him by the defendant. The judgment of the trial court is reversed and the case is remanded.

Evidence was offered in the trial court that plaintiff B. F. Shipp received injuries on May 23, 1963, that were permanent in nature. The impairment of plaintiff Shipp’s future earning capacity became an issue under the pleading, proof and jury submission. Preceding the introduction of evidence in the trial court, counsel for Shipp, by motion in limine, secured an order from the trial judge forbidding defendant’s counsel from eliciting testimony “That plaintiff Ben F. Shipp has ever had a heart attack, or has been hospitalized on any occasion before May 23, 1963”. Appellant’s counsel complied with the court’s order, but was permitted out of presence of the jury to tender evidence on a bill of exception showing Mr. Shipp had been afflicted with a circulatory disease since 1955, was treated for a blood clot in his leg soon after that date, and that on January 12, 1960, suffered a “full blown” heart attack. Hospitalization and treatment followed the blood clot and heart stroke, along with medical advice to “quit smoking”, “not to sit around”, and “not to over-exert”.

The excluded evidence of Shipp’s circulatory ailment, heart condition, and the associated facts was admissible. Evidence of plaintiff’s health and physical condition prior to injury would have been useful to the jury in this instance in determining the life expectancy of the injured party and the effect of that expectancy on the party’s future earnings. Cameron Mill & Elevator Co. v. Anderson, 98-Tex. 156, 81 S.W. 282, 1 L.R.A.,N.S., 198 (1904); Chemical Express v. Cole, 342 S.W.2d 773 (Dallas Tex.Civ.App.1961, writ ref’d n. r. e.); 17 Tex.Jur. 2d Damages § 272 ; 22 Amer.Jur. Damages § 95. The trial court erred in ex-, eluding the evidence.

When the entire record is considered, the practical result of the exclusion of this evidence is perceptible. Shipp’s counsel introduced in evidence a mortality table showing the average life expectancy of a person of Shipp’s age, race, and sex was 22.3 years. In summation before the jury Shipp’s counsel employed a unit of time argument to demonstrate future damage. The exclusion of the evidence of health prior to injury permitted the jury to determine and assess Shipp’s damages without giving consideration to his prior health and its effect, if any, on his life expectancy. The argument took advanage of the absence of such evidence and exacerbated the harm. Exclusion of the evidence violated appellant’s rights to introduce relevant testimony and, under the circumstances shown, was reasonably calculated to, and probably did, cause the rendition of an improper judgment.

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


author: FANNING, Justice.

text:
    Lewis WILLEFORD, Appellant, v. The HOME INDEMNITY COMPANY, Appellee.
    No. 7787.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1967.
    Rehearing Denied Feb. 28, 1967.
    F. L. Garrison, Gilmer, for appellant.
    R. Keith Drummond, Strasburger, Price, Kelton, Miller & Martin, Dallas, for ap-pellee.
   FANNING, Justice.

Lewis Willeford, as plaintiff, sued defendant insurance company for $10,000.00 on an insurance policy covering defendant’s deceased wife, Cordia Willeford, allegedly due as a death indemnity benefit under said policy. Plaintiff and defendant both filed motions for summary judgment and the trial court entered summary judgment for defendant and denied plaintiffs motion for summary judgment. However it appears that there was no dispute that plaintiff was entitled to recover $3,500.00 for the loss of sight of one eye sustained by Mrs. Wille-ford and the summary judgment awarded this amount to plaintiff. Plaintiff has appealed, contending that he is entitled to judgment for $10,000.00, rather than $3,-500.00.

Defendant issued its Family Automobile Policy to Lewis Willeford effective August 15, 1964, with endorsement 157 M. Under such endorsement, appellant Willeford contends that he is entitled to the principal sum of $10,000.00 as a result of the death of his wife, Cordia Willeford, which occurred more than 90 days after the hereinafter referred to accident. The policy of insurance and endorsement provided in part as follows:

“1. Coverages
Part I — Death Indemnity
To pay the principal sum stated in the schedule in the event of the death of the insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon, or while entering into or alighting from, or through being struck by, an automobile, provided the death shall occur (1) within ninety days after the date of the accident or (2) within fifty-two weeks after the date of the accident and during a period of continuous total disability of the insured for which weekly indemnity is payable under the Total Disability Coverage.
Part III — (1) Dismemberment and Loss of Sight Benefits
To pay the highest applicable amount stated in the following table(s) for loss as enumerated therein, in the event of bodily injury, caused by accident and sustained by the insured while in or upon, or while entering into or alighting from, or through being struck by, an automobile, provided loss (under Table I) be sustained by the insured within ninety days from the date of such accident.

Appellant Willeford did not purchase coverage for Total Disability and paid no premium therefor.

On August 22, 1964, an automobile accident occurred, from which Mrs. Willeford lost the sight of one eye, for which defendant-appellee was liable for $3,500.00 and was willing to pay and for which amount Mr. Willeford was given judgment. Mrs. Willeford died, from the result of such accident, on January 4, 1965, which was more than 90 days after the date of the accident but less than 52 weeks after the date of the accident.

It is appellant’s position that since Mrs. Willeford was continuously totally disabled from the time of the accident to the date of her death, which was less than 52 weeks, that under a liberal interpretation of the policy that he was entitled to recover the death indemnity benefit of $10,000.00. In this connection appellant contends that the terms of such policy are ambiguous and that he is therefore entitled to a construction thereof which will permit him to recover such death indemnity benefit.

It is appellee’s position that appellant Willeford is not entitled to the death indemnity benefit of $10,000.00 under Part I since the death of Mrs. Willeford did not occur (1) within 90 days after the date of the accident, nor (2) within 52 weeks after the date of the accident and during a period of total disability for which weekly indemnity was payable.

The rule of liberal construction of insurance policies in favor of the insured applies only when the contract is ambiguous and susceptible of more than one interpretation. However, where the language is plain and unambiguous there is no occasion for construction, and the language must be given its plain meaning. Transport Insurance Co. v. Standard Oil Co. of Texas, 161 Tex. 93, 337 S.W.2d 284 (1960).

Since the death of Mrs. Willeford occurred more than 90 days after the accident, there can be no recovery under the terms of proviso (1).

Proviso (2) has two requirements, (1) that death occur within 52 weeks after the accident “and” (not “or”) (2) “during a period of continuous total disability of the insured for which weekly indemnity is payable under the Total Disability Coverage”. For recovery under proviso (2), both of the above requirements must be met. The facts in the case at bar meet only one of these requirements. While the death was within 52 weeks from the date of the accident, and while Mrs. Willeford was continuously totally disabled during said period as a result of the automobile accident, yet it was not within a period of total disability for which weekly indemnity was payable. No such weekly indemnity was payable simply for the reason that admittedly no total disability coverage was purchased and no premium was paid for such coverage.

We hold that the terms of the policy and endorsement above referred to are plain and unambiguous and that under the plain terms thereof and under the undisputed facts here, plaintiff was not entitled to recover the $10,000.00 death indemnity benefit sued for.

The judgment of the trial court is affirmed.

Affirmed.


author: BARROW, Chief Justice.

text:
    Santiago GUZMAN, Appellant, v. PHOENIX INSURANCE COMPANY, Appellee.
    No. 14546.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1967.
    Rehearing Denied Feb. 23, 1967.
    Reid & Taylor, San Antonio, for appellant.
    Wiley & Thornton, Dayton G. Wiley, Robert B. Thornton, Lewin Plunkett, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant, Santiago Guzman, appeals from a judgment rendered on a jury verdict in his suit to recover benefits from appellee, Phoenix Insurance Company, under the Texas Workmen’s Compensation Act, for injuries received to his right hand in the course of employment.

The jury found temporary total loss of use of appellant’s right hand for a period of 44 weeks with no partial loss of use. The jury also found that the effect of the injury did not extend to and affect his right arm, however, this finding is not pertinent to the appeal. Appellee had voluntarily paid compensation benefits for 44 weeks and therefore a take-nothing judgment was entered on this verdict.

Appellant complains, by “no evidence” and “insufficient evidence” points, of the jury findings limiting the period of total loss of use of his hand and that this period was not followed by any partial disability. He does not contend that he has established any other period as a matter of law, and since he seeks a remand of the case, we will consider only his “insufficient evidence” points. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 361.

On September 25, 1963, appellant sustained an injury in the course of his employment for K. O. Steel Castings, Inc., when he caught his hand in a sand-mixer and ran a spike through his hand between his thumb and index finger. Appellee, the compensation carrier for K. O. Steel, assumed liability under the Workmen’s Compensation Act. Appellant was hospitalized from September 25 to October 14, 1963. Corrective surgery was performed on his hand on three other occasions, which required him to be hospitalized from February 6 to February 11, 1964, from July 23 to July 30, 1964, and from December 15 to December 18, 1964. It was stipulated in the presence of the jury that compensation benefits were paid by appellee at the applicable rate of $34.61 per week for the following periods: September 26, 1963, to April 15, 1964, being 29 weeks; July 24 to October 4, 1964, being 10 weeks and 3 days; December 15, 1964, to January 20, 1965, being 5 weeks and 2 days.

The jury was instructed that the loss of use of a member does not imply an absolute disability to perform any kind of labor, but an incapacity of the member, disqualifying the person from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment requiring the use of that member.

The thrust of appellant’s argument is that a period of 44 weeks from date of injury expired on July 29, 1964; whereas, under the undisputed record, he was hospitalized for treatment of his hand on July 30, 1964, and was so again hospitalized about six months later. Appellant asserts that he obviously was incapacitated from work while his injury was such as to require hospitalization.

This argument overlooks the proposition that the jury did not find that appellant sustained a temporary total loss of use for 44 continuous weeks, or that the period of 44 weeks was from date of injury. Under the issue as submitted, the jury found only that such loss of use had continued for a period of 44 weeks. Under the record in this case such a finding is equivalent to a finding that appellant suffered such loss for a total of 44 weeks.

This finding was in accordance with ap-pellee’s theory of the case. Appellee admitted that appellant had suffered a temporary total loss of use of his right hand and that it had paid the compensation benefits for such incapacity and had furnished the necessary medical services. The parties stipulated that compensation benefits were fully paid during the period covered by each of appellant’s hospitalizations. Evidence was introduced to show that appellant held jobs during the intervals between his various hospital confinements.

We cannot say, after a review of the entire record as required by appellant’s insufficient evidence points of error, that the jury findings that appellant sustained a total loss of use of his right hand for only 44 weeks, with no partial loss of use thereafter, are so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust and unfair so as to require a remand of the case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The only evidence of loss of use was the testimony of appellant. He testified that at the time of the trial, which was in March, 1966, he still could not open his thumb all the way and grip a wrench with it or lift normally with his right hand. Neither party called a medical witness, although the entire hospitalization record was introduced into evidence without explanation or comment, other than an observation by appellant’s counsel that on appellant’s discharge in July, 1964, he took “Percadan tablets” home with him.

Appellant admitted that the compensation benefits were stopped in April, 1964, after he returned to work. There was* evidence that he held at least four jobs requiring use of his right hand before January, 1965. He was not discharged from any of these jobs. One of them was as' an apprentice jeweler under the Texas Rehabilitation Program, and this employer testified that appellant was able to use his fingers in satisfactory performance of his work. He also testified that corrective surgery was performed on the hand in July, 1964, while appellant was working for him, and that after an absence of five or six days appellant returned to regular work and had greater use of his hand than before the surgery.

Appellant was discharged by the treating doctor on January 20, 1965, and has not received any medical treatment since that time. One week after his final discharge from the doctor, appellant entered and won the heavyweight novice division of the San Antonio Golden Gloves boxing tournament. At the time of the trial he had been continuously employed since August, 1965, as a paper stacker. In addition to this use of his hands, he still boxed as a hobby and regularly worked out on a sand punching bag. The jury had the opportunity to observe the physical condition-of his hand. This record fully supports the jury verdict that appellant had sustained a temporary total loss of use of his right hand for a period of 44 weeks without any partial loss of use. Guerra v. Texas Employers Ins. Ass’n, 343 S.W.2d 306 (Tex.Civ.App. — San Antonio 1961, no writ).

The judgment is affirmed.

      . “QUESTION NO. 2: For what period of time, if any, do you find, from a preponderance of the evidence, that such temporary total loss of use, if any you have found, has continued or will continue?
      Answer by stating a period of time, if any, in days or weeks.
      Wo, the Jury, answer: 44 weeks.”


text:
    Philip Davis ALLEN, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7769.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 22, 1966.

      Orville A. Harlan, Houston, for appellant.
    Gus Drake, Joe Resweber, Houston, for appellee.
   CHADICK, Chief Justice.

This is a declaratory judgment action. The judgment of the trial court ascertained and declared a conviction in a criminal case became final April 9, 1965. The judgment is affirmed.

The appellant herein, Philip Davis Allen, was convicted for the offense of driving a motor vehicle while under the influence of intoxicating liquor by judgment dated the 10th day of November, 1964, in a court of competent jurisdiction. An appeal in such case to the Court of Criminal Appeals was perfected. On April 7, 1965, the Court of Criminal Appeals at appellant Allen’s request dismissed the appeal and thereafter on April 9, 1965, issued its mandate to the trial court.

The appellant herein as plaintiff instituted this action in the trial court. By appropriate pleading and proof the trial court was required to make a determination and accordingly did determine that the conviction in question became final April 9, 1965, and not, as contended by Allen, at the earlier date of November 10, 1964, the date of the judgment of conviction in the trial court.

Two cases dealing with a final conviction, as the term is used in the Civil Statutes, [Vernon’s Ann.Tex.Rev.Civ.Stat. art. 6687b, § 24(a), par. 2, (1960)] have been cited. In both the facts are similar to those presented by the instant record, with the exception that the mandate of the Court of Criminal Appeals issued after, that court had disposed of the pending appeals by judgment on the merits, whereas, in this instance the appeal was disposed of in the Court of Criminal Appeals by a judgment of dismissal on Allen’s motion therefor. The cases referred to are Hays v. Department of Public Safety, 301 S.W.2d 276, (Tex.Civ.App.-Eastland 1957, err. dism’d) ; Barham v. Texas Department of Public Safety, 398 S.W.2d 168 (Tex.Civ.App.-Eastland 1966, no writ).

The Penal Code, [Vernon’s Ann.Tex. Pen. Code art. 802 (1961)], prohibits any person from driving a motor vehicle upon a public street, road, etc., while under the influence of intoxicating liquor and provides a penalty for violation. The Civil Statutes, [Tex.Rev.Civ.Stat. Ann. art. 6687b § 24(a), par. 2, (I960)] directs that the license of an operator, commercial operator or chauffeur, as those terms are defined in Art. 6687b, shall be automatically suspended for a period of time stated therein upon final conviction of the offense prohibited by the mentioned Penal Code Article 802. Appellant Allen raises the legal proposition that his license as an operator was automatically suspended for a six months period immediately following the date of his conviction in the trial court by the provision of Art. 6687b, § 24(a), par. 2, and that subsequent appeal from the conviction, and action thereon, did not postpone the date suspension began.

The Code of Criminal Procedure in effect when Allen was convicted and his appeal was dismissed, [Tex. Code Crim.P. Anno. art. 828 (1925)] provides that the filing of the appellate record in the Court of Criminal Appeals suspends and arrests all further proceedings in the trial court until the Court of Criminal Appeals’ mandate is returned to the trial court. No language of the several sections of Civil Statutes Art. 6687b expressly states that the license of an operator, etc., shall be suspended during the pendency of an appeal to the Court of Criminal Appeals “upon a final conviction in a trial court” for driving a motor vehicle while under the influence of intoxicating liquor. The previously mentioned section of the statute simply provides for automatic suspension of the license “upon final conviction”. Settled rules of statutory construction require that Code of Criminal Procedure Art. 828 and Revised Civil Statute Art. 6687b § 24(a), par. 2, be harmonized, if possible, in such way as to give effect to each enactment and avoid conflicts between them. 53 Tex.Jur.2d “Statutes”, § 186 (1964). Thus correlated, it appears that the legislative intent of Art. 6687b § 24(a), par. 2 is that a “final conviction”, as the term is used therein, is a judgment of conviction from which an operator, convicted of driving while under the influence of intoxicating liquor, has exhausted his right to appeal. Dismissal of Allen’s, appeal by the Court of Criminal Appeals terminated his right of appeal. The date the Court of Criminal Appeals’ mandate was received by the trial court is the date the trial court’s judgment became final for the purpose of Art. 6687b § 24(a), par. 2; under this record that date is April 9, 1965.

The judgment of the trial court is affirmed.

       Now Vernon’s Ann.Tex.Code Crim.P. art. 44.11. (1966).


author: HIGHTOWER, Chief Justice.

text:
    ESTATE of John Thomas COGGINS, Appellant, v. William O. LIVINGSTON, Appellee.
    No. 6871.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 19, 1967.

      Don B. Moye, Nederland, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

This suit for personal injuries was brought by the Estate of John Thomas Cog-gins against William O. Livingston, appel-lee. An instructed verdict was given ap-pellee on his motion that there was no evidence that he struck the deceased with his automobile, and should there have been, there is no evidence of negligence or of proximate cause.

Appellant alleged that appellee struck deceased while he was walking on the one-way street of Milam near Schlesinger’s Home in Beaumont, Texas, January 19, 1965; that appellee was negligent in failing to keep a proper lookout, failing to timely apply his brakes and failing to turn his automobile, and that such failures were the proximate cause of the injuries and death. Following is a résumé of the witnesses’ testimony.

Como: Saw the defendant at Schlesinger’s Home January 19, 1965 and when he left there between 5:20 and 5:25 p. m. defendant was still there. He got home around 5:30, reaching there in 5 or 10 minutes from Schlesinger’s. He did not see the deceased in the ditch, walking on the road or on the side of the road.

Hopkins: While driving on the road leading to Schlesinger’s January 19, 1965 about 5:30 p. m., saw what appeared to be a bundle of clothes on the side of the street and learned that it was a body about 4 feet off the road. There was a walking stick a few hundred feet back from the body and a hat partly on the road. He was abreast of the body before he realized it was a man.

Carpenter, a Beaumont police officer, conducted an investigation on January 20, 1965 of an incident which was reported to the Police at 5:43 p. m., January 19, 1965. Around 8:00 p. m. of January 20th, he went to appellee’s home. Appellee’s car had a dent on top of the fender near the windshield. There was scuff marks leading up to the dent. He found a disturbance of the dirt on the right front fender, and the bumper appeared to be moved up. Paint was around the bead of the fender and a brown substance on the windshield. The paint he found near the dent on the fender wasn’t the color of the fender there, it was a foreign paint. He found paint on the side of the fender, around the bead, like it was scratched, like he had brushed against a piece of wood or something like that, and it was old. The walking cane he found near the scene was an ordinary wooden cane, round and brownish in color with a rubber tip on it. He said the appellee told him the day after the accident that he had not been at Schlesinger’s Home the day of the accident, but when Carpenter told him he had information that he had been there, the ap-pellee said, “Well, yes, maybe I was there last night. Maybe I was.” Appellee later testified that he didn’t tell the officer anything. Appellee told Carpenter he could not remember seeing the dent in the fender before and had no explanation as to where it came from. Appellee said that his car had not been driven since the evening of the accident until such time as the officer examined it.

Appellee was an adverse witness, “could not say” and he “just did not know” whether he struck the deceased.

McLean, City Chemist, determined that the brown substance near the windshield was blood.

The foregoing concludes the testimony most favorable to appellant, after exclusion of all testimony favorable to ap-pellee. The burden of proof was on appellant to prove all necessary elements of its case, i. e., that the deceased was struck by a car, that the car was appellee’s; that ap-pellee was negligent and that such negligence was a proximate cause of the death.

No witness testified that appellee struck the deceased or that the blood on the windshield was the same type of blood as the deceased. The chemist said that the blood could have been either animal, bug or human. There was no probative evidence that the automobile was not in the same condition after the accident as it was before.

Should we presume, contrary to the only medical testimony in the case, that deceased was struck by a car, yet we could not build on such presumption by again presuming that appellee’s car struck him and that ap-pellee was negligent. The only evidence in the record appears to be of such a highly speculative and conjectural nature that a judgment in favor of appellant could not be allowed to stand. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1.

There being no evidence of a probative nature connecting appellee with the death in question, the judgment of the trial court is affirmed.


author: TITUS, Judge.

text:
    Eddie GRIFFIN, Plaintiff-Appellant, v. Alvin DOSS, Defendant-Respondent.
    No. 8555.
    Springfield Court of Appeals. Missouri.
    Jan. 30, 1967.

      Richard D. Moore, Newton C. Brill, West Plains, for plaintiff-appellant.
    Patrick O. Freeman, Jr., Thayer, A. W. Landis, West Plains, for defendant-respondent.
   TITUS, Judge.

An eastbound pickup truck operated by defendant Alvin Doss encountered a westbound left-turning truck on U. S. Highway 60 in Shannon County, Missouri, at 5 :40 A. M. Friday, May 31, 1963. Plaintiff Eddie Griffin and Ronald Holland (employees of Alvin Doss and Ralph Harper, partners doing business as Doss and Harper) were passengers in the Doss vehicle. Claiming to have suffered $15,000 damages because of the collision and defendant’s negligence, plaintiff filed this tort action against Doss in the Howell County Circuit Court. Defendant’s answer imposed defenses, among others, that plaintiff’s exclusive remedy against him was under the Missouri Workmen’s Compensation Law and because plaintiff had accepted compensation payments and medical aid, he should be held to have elected that remedy, or be held to have waived his right to sue in tort, or be estopped from maintaining the damage suit. By agreement (or at least without objection in either the circuit court or in their briefs here) the parties separately tried the noted defenses without a jury. The issues were resolved for defendant by the trial court and plaintiff has pursued the necessary steps to bring the matter to us.

The entree of the repast served the trial court consisted of election, waiver, and estoppel. Those issues are now abandoned and the portion presented on appeal was somewhat of a side-order in the circuit court. Consequently if we cannot meticulously materialize every facet of the remaining issue that should have been developed for the record, it is due to the particular attention afforded the main course at trial and the lesser emphasis given to preparing our dish.

The headquarters of the partnership of Doss and Harper is located in West Plains, Missouri. The partnership is principally engaged in hauling gravel for the Missouri State Highway Department within a 100 to 150 mile radius of West Plains, and fifty to seventy-five per cent of the work is away from the immediate vicinity of that city. The partnership does not “have any one set gravel plant” and its equipment is moved from job to job to a site where gravel is handy and available. The partners and their employees were generally operating under and subject to the provisions of the Workmen’s Compensation Law of Missouri.

The vehicle Doss was driving at the time of the accident was personally owned by him. Nevertheless, the partnership “paid all the bills, insurance, gasoline, tires * * * took care of the expenses of the * * * pickup * * * on any particular job we were on we used it like it was a company pickup.”

Plaintiff resided three miles south of Peace Valley, Missouri, and one-half mile from defendant’s residence. [Peace Valley is approximately twelve miles north of West Plains and one mile east of Highway 17, which travels north from West Plains some twenty or twenty-two miles before joining U. S. Highway 60.] Plaintiff had been employed as a truck driver by Doss and Harper for two or two and a half years before May 31, 1963. Initially he worked for $1.75 per hour, but at the time of the casualty was paid at the rate of $2.00. His pay commenced “when I got on the job,” and he worked five days a week, Monday through Friday, weather permitting. (The bracketed statement is not of record but derived from judicial notice of the geographical location of cities in the state and distances between. Bishop v. Covenant Mutual Life Ins. Co., 85 Mo. App. 302, 306; Hood v. M.F.A. Mutual Insurance Co., Mo.App., 379 S.W.2d 806, 810 [4]).

It is suggested that even though plaintiff was injured in an “on-the-job” accident, he should be permitted to sue Doss individually because he was an employee of the partnership. Missouri follows the common law or aggregate theory of partnership and this makes plaintiff an employee of each individual partner. Ergo, if the accident arose “out of and in the course of [such] employment,” plaintiff’s exclusive remedy against Doss is under the workmen’s compensation act. Anderson v. Steurer, Mo., 391 S.W.2d 839, 843(5-7) ; Brollier v. Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109, 113-114(4).

The distance and direction from West Plains of the place of work determined the transportation mode. When work was performed near West Plains, employees sometimes provided personal transportation to “the shop” at West Plains and from there rode a partnership vehicle to the job site. If work was to be done north of West Plains, plaintiff sometimes drove to Highway 17 to “catch a ride” in a partnership vehicle and would be returned to that location after work to retrieve his automobile which he had parked near the highway that morning. Also, because of the nearness of the Doss and Griffin homes, Doss, on occasion, would “pick up” plaintiff at his home or plaintiff would go to the Doss residence for his ride. Occasionally employees drove their personal cars to the job site, but the record indicates this was done only if they had missed their ride in a partnership vehicle or had personal business or reasons for using their own automobiles. Transportation provided by the partnership was either in a pickup truck or station wagon driven by the partners.

When the job site was some distance from West Plains the employees rode to work early Monday morning in a partnership vehicle, and remained at the place of work the ensuing week until returned home or to West Plains on Friday after work. Only one exception to this practice appears in the record during the time of plaintiff’s employment. On a job at or near Doniphan, Missouri, the employees decided they preferred staying home at nights rather than spending the week in a motel. In this instance, the employees took turns driving their personal cars and transporting their fellow employees.

Employees were not paid for the use of their cars nor for any of the time consumed in transportation to or from a job site. With the exception of the Doniphan job, Doss testified the employees “never did drive [their own cars] on these long jobs,” and that plaintiff “wouldn’t use his car one per cent of the time * * * to drive complete to the job.” The employees were not charged for riding in vehicles provided by the partnership.

There was no specific written or oral agreement concerning transporting employees. Doss testified, “we didn’t talk about getting to work like that.” The requirement made of plaintiff when he was hired was “just meet the boys, that’s all, meet the boys and go to work * * * [we furnished transportation] to help them out * * * we didn’t want the boys to have to drive 100 — 75 or 100 miles to work. * * * Well, we furnished transportation because we’d have to pay the boys more money if they drove their cars to work, if they were going 75 or 50 miles. * * * And another reason * * * if we all go together, we’ll get to work about the same time. If we had one coming fifteen or twenty minutes late, the others couldn’t go to work until the whole crew gets on the job. We feel or I feel like its cheaper on us. * * * In other words, we’d have to pay the boys more on the hour if they drove their own cars to work.”

Plaintiff testified there was no transportation “arrangements” but “that this arrangement for furnishing transportation to you” was “partly” for the mutual benefit of him and the partnership. Plaintiff said transportation in a partnership vehicle was not always available but was available a majority of the time. He denied the furnished transportation was a consideration for which he took the job. Although it would cost plaintiff “two to three dollars a day” for him to drive his own car, he said he would have driven his car daily for the same wages. He used the transportation supplied by Doss and Harper because “it was a lot cheaper to me to ride with them.”

For two or three days prior to the accident plaintiff and the other employees of Doss and Harper had been working at Ellington, Missouri, a distance of 75 to 90 miles from West Plains. The day before the accident, May 30, 1963, was Memorial Day and the crew had returned to West Plains for the occasion. The record suggests the employees were initially transported to Ellington by the partnership and returned home by partnership transportation for the holiday. In any event, when the accident occurred plaintiff was being returned for work to Ellington in the Doss pickup together with a fellow employee, Ronald Holland. Doss picked up plaintiff at his home and Holland boarded the pickup at Mountain View, Missouri.

If the workmen’s compensation law is to be the sole vehicle for plaintiff’s recovery, his personal injuries by accident must have arisen “out of and in the course of his employment.” V.A.M.S. § 287.120 (1,2). “An injury arises out of the employment if it is a natural and reasonable incident thereof” and is “the rational consequence of some hazard connected therewith.” The term “ ‘in the course of’ the employment refers to the time, place, and circumstances under which the injury was received,” and, “generally speaking, the scope of the contract of employment furnishes the determinative test as to whether or not the accident is compensable as ‘arising out of and in the course of * * * employment.’ ” Hacker v. City of Potosi, Mo.App., 340 S.W.2d 166, 169-170(1-4); Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 803-804(2-5) ; and authorities cited in those cases.

Injuries received by an employee going to or returning home from work are usually said not to arise out of and in the course of employment. However, exceptions to this broad assertion are far from rare.

A well-known text writer flatly asserts, “If the trip to and from work is made in a truck, bus, car, or other vehicle under the control of the employer, an injury during that trip is incurred in the course of employment.” Justification for this statement is claimed because “the employer has himself expanded the range of the employment and the attendant risks” and “although all traces of extra compensation or reimbursement [to the employee] disappears, control of the conditions of transportation remains as a ground of liability.” Larson’s Workmen’s Compensation Law, Vol. 1, § 17.10, pp. 279-282. A similar statement, quoted without disapproval from the findings of “The Compensation Commission,” appears in Howes v. Stark Bros. Nurseries & Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839, 840: “Where an employer furnishes a bus to transport its employees to and from their ,work between a city and its plant, two miles distant, such transportation is incident to the employment, and an accident to an employee in connection with such transportation arises out of and in the course of the employment.”

Our task would be over if we could accept at face value the pronouncements of Mr. Larson and Gingell, supra. However, most authorities investigate the scope of the employment contract to determine if the employee’s activity at the time of injury arose out of and in the course of employment. When, as here, the activity is not expressly provided in the employment agreement, a determination is then made whether the injury arose from something that had by custom, practice, or otherwise become an incident of the employment.

Regardless of what plaintiff contends as to the lack of arrangements “between you and Doss and Harper for your transportation to the job,” we cannot fathom the intended implication it was sheer coincidence Doss had gone by for plaintiff at his home the morning of the accident, had stopped for Holland at Mountain View, and the three were riding in the pickup truck enroute to work at Ellington when the collision occurred at 5:40 A. M. These circumstances necessarily imply an understanding or agreement plaintiff was to receive transportation to the place of employment. Turnage v. State Farmers Mut. Tornado Ins. Co. of Mo., Mo.App., 388 S.W.2d 342, 349(7). Neither was this an isolated nor rare instance of plaintiff being transported to and from “out-of-town” jobs. Employees never drove their own cars “on these long jobs,” and the sole exception (the Doniphan job) was created by the employees themselves and did not result from the failure of the employers to furnish the customary ride. “[Ijnjuries sustained by the workman while he is provided with transportation when going to or returning from his work are considered as arising out of his employment when such transportation * * * has ripened into a custom to the extent that it is incidental to and part of the contract of employment, or when it is with the knowledge and acquiescence of the employer, or when it is the result of a continued practice in the course of the employer’s business, and which practice is beneficial to both the employer and employee.” Nicolasi v. Sparagna, 135 N.J.L. 131, 50 A.2d 867-868(1).

It is of little import plaintiff was not paid wages until he “got on the job” nor remunerated for travel time if the furnished transportation was an incident of the employment agreement. Cf., B. & H. Passmore M. & R. Co. v. New Amsterdam Cas. Co., 10 CCA, 147 F.2d 536, 537-538. “[Transportation to and from work may-well be one of the incidents of the employment, and an accessory, collateral, or subsidiary part of the contract * * * something added to the principal part of the contract, as a minor, but none the less a real, feature or detail of the contract.” Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 500. Under the circumstances of this case transportation could be viewed as a “fringe” benefit to employees not reflected in actual wages and the implied contract contemplated the “employees would be carried to and from their work but their wages would start upon arrival [at the job] and stop upon departure.” Taylor v. Meeks, 191 Tenn. 695, 236 S.W.2d 969, 970(6).

The extended custom followed concerning transportation dispels that the rides afforded employees to and from “these long jobs” was nothing more than a gratuity. The right of the partnership to discontinue the rides as an implied incident of employment would not affect the situation. “So long as the employer did not discontinue the service and so long as the employee continued to ride as an incident to his employment, the legal relationship between the parties while the employee was so riding remained the same.” Neyland v. Maryland Casualty Co. (La.App.), 28 So.2d 351, 355(5). Plaintiff agrees, though begrudgingly, the supplied transportation was “partly” for the mutual benefit of himself and his employers. “It is the rule that ‘An injury suffered by an employee while performnig an act for the mutual benefit of the employer and the employee is usually compensable.’ ” Lampkin v. Harzfeld’s, Mo., 407 S.W.2d 894, 897-898(6). This rule is applicable to situations involving transportation of the employee by the employer as an incident of the employment. Johnson v. Aetna Casualty & Surety Co., 5 CCA, 104 F.2d 22, 23(1); Turnage v. State Farmers Mut. Tornado Insurance Co. of Mo., supra, Mo.App., 388 S.W.2d 342, 347 ; 8 Workmen’s Compensation Text, Schneider, § 1712(d), pp. 41-42.

Principally on appeal we concern ourselves with whether the result obtained by the trial court was correct (Helmkamp v. American Family Mutual Insurance Co., Mo.App., 407 S.W.2d 559, 566(8); Venie v. South Central Enterprises, Inc., Mo.App., 401 S.W.2d 495, 498), and in reviewing a judgment determined without a jury we subject ourselves to the rule such judgment “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” V.A.M.R. 73.01(d); In re Estate of O’Neal, Mo., 409 S.W.2d 85, 90(1). We conclude the trial judge could properly find the transportation provided plaintiff by the partnership was an implied term of and within the scope of the employment contract. Thus the accident wherein plaintiff was injured arose out of and in the course of his employment and his remedies therefor must be confined to those afforded by the Missouri Workmen’s Compensation Law. Accordingly, the judgment of the circuit court is affirmed.

STONE, P. J., concurs.

HOGAN, J., took no part in the consideration or decision of this case.

      . Defendant having prevailed in the trial court, the amount in dispute is the $15,-000 prayer of the petition. Appellate jurisdiction is, therefore, vested in this court. V.A.M.S. Constitution, art. 5, §§ 3 and 13; V.A.M.S. § 477.040; Simmons v. Friday, 359 Mo. 812, 224 S.W.2d 90, 93(3).

      . The Missouri Workmen’s Compensation Law is wholly substitutional in character and cannot be altered by election, waiver, estoppel or contract. Roberts v. Epicure Foods Co., Mo., 330 S.W.2d 837, 841(4) ; Godwin v. Cape Central Airways, Mo., 318 S.W.2d 196, 199; Marie v. Standard Steel Works, Mo. (Banc), 319 S.W.2d 871, 875(3).

      . Kammeyer v. Board of Education, Mo. App., 393 S.W.2d 122, 130(11); Heaton v. Ferrell, supra, Mo.App., 325 S.W.2d 800, 805(7); Gingell v. Walters Contracting Corporation, Mo.App., 303 S.W. 2d 683, 688(3).

      . Carriker v. Lindsey, Mo.App., 313 S.W. 2d 43, 47; Wamhoff v. Wagner Electric Corporation, 354 Mo. 711, 190 S.W.2d 915, 917, 161 A.L.R. 1454; Finley v. St. Louis Smelting & Refining Co., Mo. (Bane), 233 S.W.2d 725, 726; Garbo v. P. M. Bruner Granitoid Co., Mo.App., 249 S.W.2d 477, 480 ; 99 C.J.S. Workmen’s Compensation § 235a, b, pp. 834-844; 58 Am.Jur. Workmen’s Compensation § 218, pp. 725-726; Esquer v. Teresi, 105 Cal.App.2d 89, 232 P.2d 895, 897-898(3); Peski v. Todd & Brown, Inc., 7 CCA, 158 F.2d 59, 61; Green v. Bell Cleaners, 65 N.J.Super. 311, 167 A. 2d 815, 818(3), affd. 35 N.J. 596, 174 A. 2d 474; Annotation: 145 A.L.R., pp. 1033-1042.


author: CHESLEY A. LYCAN, Special Commissioner.

text:
    NEW FARMERS NATIONAL BANK, Administrator of Louise Williams, Deceased, Appellant, v. Guy W. THOMAS, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.

      Robert C. Carter, Glasgow, for appellant.
    Richardson, Barrickman & Dickinson, Glasgow, for appellee.
   CHESLEY A. LYCAN, Special Commissioner.

On March 18, 1963, Louise Williams filed this action for damages against Guy W. Thomas, Jr., for personal injuries received in an automobile collision December 23, 1962. On April 12, 1963, Guy W. Thomas, Jr., filed his answer and counterclaim. The case was tried by jury and the jury could not agree.

Louise Williams died February 27, 1964, survived by a daughter, age nine. The New Farmers National Bank of Glasgow, Glasgow, Kentucky was appointed administrator of her estate on April 7, 1964, and on the same day was appointed guardian of the infant child of Louise Williams.

On March 18, 1965, Thomas moved the court to dismiss the action because of the failure to revive the action pursuant to KRS 395.277 within one year after the death of the plaintiff, Louise Williams. On March 22, 1965, the plaintiff moved that the action be revived in the name of the New Farmers National Bank, which had been appointed administrator on April 7, 1964. The court dismissed the action “for failure to revive in compliance with KRS 395.277.” This statute provides:

“KRS 395.277 When representative or successor may revive action; limitation.
An order to revive an action in the name of the representative or successor of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made; except that, if the defendant shall also have died, or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section.”

In Hale v. Commonwealth, 71 S.W. 902, 24 Ky.Law.Rep. 1573, the facts show that the death of the appellant was suggested of record but no order of revivor was entered. On January 5, 1903, the appellee moved to dismiss because the action had pot been revived within one year. This court held that the motion should be sustained and that the case be stricken from the docket.

In Greyhound Corporation v. Dowl-ing, Ky., 334 S.W.2d 259, the plaintiff died during the pendency of the action and an amended complaint was filed within one year from her death seeking revival of the action. The actual order of revival was not made until one year and six weeks after the plaintiff’s death. It was held that the action was revived. The time limitation applies to the application and notice given in one year, although the actual order is not entered until after one year.

It is pointed out in Norfolk & Western Ry. Company v. McCoy, 288 Ky. 458, 156 S.W.2d 493, 495 that: “ * * * a remedial or curative statute, which grants a right or provides a remedy, must be strictly followed in all respects.” Our inquiry then is when could the order have first been made?

The death of Louise Williams could have been suggested of record forthwith and an administrator could have been appointed upon the expiration of the five (5) day notice required by KRS 395.016. No reason was assigned for waiting until April 7, 1964 for the appointment of a personal representative. Under the civil rules it is necessary to plead limitation, CR 8.03, and to plead in avoidance of limitations, CR 8.04. The pleadings, consisting of the motion to dismiss for failure to revive and the response and motion to revive, taken together adequately raise the issue. The one year period for revivor provided by KRS 395.277 cannot be extended to one year and twenty four days under the facts shown by this record. Wilful or accidental failure to promptly appoint a personal representative cannot be grounds to stop the running of the statute.

The appellant submits that the one year limitation provided in KRS 395.277 does not govern this case because of the infancy of the daughter of Louise Williams. KRS 411.140 provides that the action survives to the personal representative. The infant in her own right could not maintain the action. KRS 395.277 does not have any exception or saving clause in favor of infants or persons under any other disability.

The appellant contends that KRS 413.170(1) which contains the exception and saving clause in favor of persons under disability, is applicable to the instant case. This is not a death action, but an action for personal injury. The personal injury occurred on December 23, 1962. KRS 413.-170(1) began running at this time. The running of the limitation was arrested by the filing of this action on March 18, 1963. Upon the death of Louise Williams the cause of action survived to her personal representative. It was not necessary to bring a new suit. The same suit could be prosecuted in the name of the personal representative if he revived it in the time provided by KRS 395.277. Once a limitation begins running the intervening infancy or other disability of another interested party does not stop the running of the limitation. Elkhorn Land & Improvement Co. v. Wallace, 232 Ky. 741, 24 S.W. 2d 560; 34 Am.Jur. 160, Limitation of Actions, sec. 199.

In the analogous death actions in which the statute provides the action must be brought in one year, the rule is that the action must be brought within one year from the death and not one year from the appointment of an administrator. Faulkner’s Adm’r v. Louisville & N. Ry., 184 Ky. 533, 212 S.W. 130. This is true even though the widow and the children, who were infants, were the sole beneficiaries. Van Vactor’s Adm’x v. Louisville & N. Ry. Co., 112 Ky. 445, 66 S.W. 4.

The appellant cannot find relief under KRS 413.180(1) because the cause of action arose December 23, 1962. The limitation would already have run except for the fact that Louise Williams had already brought suit. Revivor after the suit is brought is governed by KRS 395.277. KRS 413.180(1) has no application in this action.

The judgment is affirmed.

All concur.


author: WILLIAMS, Chief Justice.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. G. L. HOLLAND, Respondent.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.

      Charles Cassis, Frankfort, for complainant.
    Lawrence S. Grauman, Edwin I. Baer, Louisville, for respondent.
   WILLIAMS, Chief Justice.

The Complainant Kentucky State Bar Association has heretofore obtained a Rule against the Respondent to show cause why he should not be punished for contempt for the tinauthorized practice of law.

■The Respondent is not a licensed attorney and has been charged with preparing wills for certain individuals in violation of RCA 3.020. In response to the Rule, which is the second issued against this individual in the past six months, Respondent admits the charges.

Pursuant to RCA 3.530, the matter was referred to Special Commissioner Henry Meigs for a report and recommendations. The Commissioner has found, under the pleadings and admissions, that the acts complained of constitute the practice of law as specifically enjoined in Frazee v. Citizens Fidelity Bank & Trust Co., Ky., 393 S.W.2d 778 (1965). He has recommended that the Respondent be found guilty of the unauthorized practice of law; fined twenty-five dollars and costs; and permanently enjoined from engaging in the practice of law.

Although many able laymen may, through industry and intelligence, obtain some competence in the performance of some legal services, uncontrolled and unsupervised engagement in a forum of the law cannot but place the rights of the public in jeopardy. The proper administration of justice can be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. The courts require high character and integrity in those seeking to study the law. A rigorous course of study and an exhaustive examination must be completed before a person may be admitted to the practice. And supervision of, a licensed attorney as an officer of the court is maintained for the protection of the public. This practice is so essential for the protection of the public, and so vital for the orderly administration of justice, that this court, as an agent of the people, has been vested with ample powers to vindicate its authority in this respect.

Accordingly, the Special Commissioner’s finding that the acts admitted by the Respondent and his employees constituted the unauthorized practice of law, and his recommendation that the Respondent be fined $25.00 and costs and permanently enjoined from engaging- in the practice of law is approved.

It is so ordered.

All concur.