author: O’QUINN, Justice.

text:
    Edward W. GUINN, M. D., Appellant, v. The STATE of Texas et al., Appellees.
    No. 12515.
    Court of Civil Appeals of Texas, Austin.
    May 18, 1977.
    Rehearing Denied June 8, 1977.

      M. Clifton Maxwell, Fort Worth, for appellant.
    John L. Hill, Atty. Gen., Michael E. Stork, Asst. Atty. Gen., Austin, for appel-lees.
   O’QUINN, Justice.

The State of Texas through the attorney general, and in behalf of the Texas Employment Commission, brought this action in March of 1971 against Edward W. Guinn, M. D., of Tarrant County, to collect employer taxes, or contributions, with penalties, claimed owing by Guinn for the first three quarters of 1970, in the amount of $301.24.

Through a series of amendments to the original petition, the State included prior and succeeding years and additional taxes until by its Sixth Amended Petition, filed in December of 1975, taxes and penalties sued for amounted to $4,647.06. The parties went to trial on the State’s Sixth Amended Petition and defendant’s Third Amended Answer, also filed in December of 1975.

Trial was before district court of Travis County without a jury, resulting in judgment, entered in June of 1976, awarding the State taxes and penalties, covering the years 1968 through. 1975, in the sum of $4,221.54.

Guinn has appealed and brings eight points of error, based on evidentiary contentions, procedural challenges, and attacks on the statutes as in contravention of the Constitution of Texas. We will overrule all points of error and affirm judgment of the trial court.

As an evidentiary contention, Appellant Guinn urges that he is not an employer as designated in Article 5221b-17(l), Vernon’s Anno.Civ.Sts., and found in the amendment of 1967, prior to the last amendment in 1972. Acts 1967, 60th Leg., p. 697, ch. 287, sec. 8, eff. Oct. 1, 1967.

The definition of employer, as stated in the 1972 amendment, provides in Article 5221b — 17(f)(1):

“(f) ‘Employer’ means:
(1) Any employing unit, other than one to which paragraph (3) or (6) below is applicable, which during any calendar quarter in the current calendar year or the preceding calendar year paid wages of One Thousand Five Hundred Dollars ($1,500) or more, or on each of some twenty (20) days during the current calendar year or during the preceding calendar year, each day being in a different calendar week, employed at least one (1) individual in employment for some portion of the day . . (Acts 1971, 62nd Leg., p. 2743, ch. 892, sec. 10, eff. Jan. 1, 1972).

In 1967 the statute prescribed the following definition of employer:

“(f) ‘Employer’ means:
(1) Any employing unit which for some portion of each of twenty (20) different days within the current or preceding calendar year, each day being in a different calendar week, whether or not such weeks are or were consecutive, has or had in employment four (4) or more individuals, but not necessarily simultaneously, (irrespective of whether the same individuals are or were employed in each such day) . . ..”

Guinn contends the 1967 statutory provision is not applicable to him because he did not employ the requisite number of employees.

Appellant reaches calculation of fewer individuals in his employ by two approaches. The first is by argument that one individual, a cleaning woman, was not an employee but an independent contractor. The second is that employees of a pharmacy connected with Guinn’s clinic should not be attributed to Guinn as an employer and therefore should not be computed in conjunction with appellant’s medical clinic employees. Guinn takes the position that joint computation is not proper because ownership of the pharmacy was transferred by him to his wife prior to the contested period of employee computation.

We find neither contention convincing.

There is adequate documentary evidence, introduced by the State in the form of reports to the Texas Employment Commission, to support the State’s position that Guinn fell within the employer purview of Article 5221b-17(f)(l) in 1967.

Appellant’s contention that one individual credited to his employ was in fact an independent contractor is without merit. Normally the determinative test of whether a person is an employee or independent contractor is the right of the employer to exercise control over the workman and details of the work. See Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469 (Tex.1965); Barnett v. Texas Employment Commission, 510 S.W.2d 361 (Tex.Civ.App. Austin 1974, writ ref’d n. r. e.).

In this case the individual was a cleaning woman. Appellant withheld social security payments from the woman’s weekly paycheck. Appellant testified that he “probably” included her as an employee on documents submitted to the Texas Employment Commission which were signed by him as the reporting employer. In addition, appellant testified that he discharged the cleaning woman when he became displeased with her performance of the duties assigned to her.

In his second contention against applicability of the statutory employer designation to him, appellant’s position is that his medical clinic and the pharmacy may not be considered as a single employing unit under Article 5221b-17(e). Appellant urges that by business transfer of the pharmacy to his wife’s name and ownership, appellant was not owner of the pharmacy at the time employees of the medical clinic and employees of the pharmacy were grouped as employed by a single employing unit.

The relevant language of Article 5221b-17(e) is:

“(e) ‘Employing unit’ means any individual . . . which has or, subsequent to January 1, 1936, had in its employ one (1) or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit which maintains two (2) or more separate establishments within this State shall be deemed to be employed by a single employing unit for all purposes of this Act.”

Appellant testified that ownership of the pharmacy was transferred to his wife in 1966. An assumed name certificate was introduced in evidence by appellant which purported to prove Guinn’s intention to transfer ownership of the pharmacy to his wife. The certificate was not signed by appellant’s wife, nor was the document notarized and had not been filed for record. Notice of withdrawal was not signed by Guinn, nor was it notarized.

In addition, the record shows that all store licenses, issued by the Comptroller of Public Accounts to the pharmacy from January 1, 1967, through December 31, 1972, designated Guinn as the owner. Two store license applications submitted to the Comptroller of Public Accounts indicated that Edward W. Guinn was owner of the Ramey Avenue Pharmacy and were signed by Guinn as the taxpayer.

Appellant testified that all of the pharmacy’s narcotic licenses, and “all of the necessary items for operation,” were in his name.

From this evidence, it is logical to conclude that appellant was for tax purposes owner of the pharmacy, and that the combination of employee grouping between the medical clinic and pharmacy was appropriate under the employing unit designation of Article 5221b-17(e).

Appellant brings two procedural challenges attacking judgment of the trial court. Under the first appellant’s claim is based on failure of the State to prove “notice,” a prerequisite to statutory default as outlined in Article 5221b-12(b) (1967).

Appellant raises this defense of noncompliance with statutory notice for the first time on appeal. By failure to plead this affirmative defense in the trial court appellant waived the point and it may not be considered on appeal. Neeley v. Southwestern Investment Co., 430 S.W.2d 465, 469 (Tex.1968), rev’d on other grounds, 452 S.W.2d 705 (Tex.1970).

The second procedural challenge urges that claims for delinquent contributions, for each taxation quarter subsequent to the filing of the original petition, are separate and independent causes of action and may not be joined to the original suit.

The State, by amendments to the original petition, sued for delinquent contributions accruing subsequent to the filing of the original petition. This procedure, of amending to plead additional claims “permissible to the suit,” is authorized by Rule 62, Texas Rules of Civil Procedure.

The procedure avoids a multiplicity of suits. It is appropriate in this case because, once liability as an employing unit is established, liability is continuing, except as provided for by written application for termination under Article 5221b-6(c) (1972).

Appellant raises three final points of error which attack Article 5221b-5 and Article 5221b-12(c) as unconstitutional.

The first point charges that Article 5221b-5(a) is misleading, ambiguous, and confusing, and that it would allow an unconstitutional exercise of executive power.

The thrust of appellant’s argument is that the statute authorizes collection of the tax on a calendar year basis only, and also allows the Commission to establish administrative rules which are at variance with the calendar year concept.

Appellant reaches this curious reading of the statute by quoting, with omissions noted, in the following manner:

“(a) Payment: Contributions shall accrue and become payable by each employer for each calendar year . . . with respect to wages for employment paid during such calendar year Such contributions shall become due and be paid by each employer to the Commission ... in accordance with such rules or regulations as the Commission may prescribe . . .”

The first two omissions from the statute, as quoted by appellant, are omissions of the words “or portion thereof.”

By reading the statute in its full context, without the omissions by appellant, it is clear the statute provides more than adequate justification for collection on a quarterly basis, as authorized by administrative rules. We need not dignify the point of error with further comment, except to note that the point is overruled as without merit.

Appellant contends that Article 5221b-5 is unconstitutional because in contravention of Article VIII, section 1, of the Constitution of Texas.

Though not specifically commenting on Article VIII, section 1, the Supreme Court in Friedman v. American Surety Co. of New York, 137 Tex. 149, 151 S.W.2d 570 (1941), found the Unemployment Compensation Act to be constitutional.

It is the position of appellant that in Texas, in order for a tax to be constitutional, it must be a poll tax, property tax, occupation tax, income tax, or another tax consistent with the principles of taxation provided by the Constitution.

In considering this contention, section 1 of Article VIII must be read with section 17 of the same article:

“The specification of the objects and subjects of taxation shall not deprive the Legislature of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this Constitution.” (Emphasis added)

The identical contention made by appellant was disposed of by this Court in 1975 in American Transfer and Storage Company v. Bullock, 525 S.W.2d 918 (Tex.Civ.App. Austin 1975, writ ref’d). In that case the term “the principles of taxation fixed in this Constitution” was treated at length. 525 S.W.2d 920 et seq.

It is settled that unless invalidity of a statute is apparent beyond a reasonable doubt, its constitutionality must be upheld by the courts. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960); Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); McGregor v. Clawson, 506 S.W.2d 922 (Tex.Civ.App. Waco 1974, no writ).

In Friedman, supra, the Supreme Court characterized the contributions in the Unemployment Compensation Act as in the nature of excise taxes, and found the Act to be constitutional.

The Supreme Court in 1962 declared that “General public acceptance of and acquiescence in a certain construction of a constitution extending over a long period of time, particularly when occasions have arisen repeatedly, gives rise to a doctrine that affords to such acceptance a persuasiveness akin to precedent.” Shepherd v. San Jacinto Junior College District, 363 S.W.2d 742, 752 (Tex.Sup.1962).

We hold that contributions called for by Article 5221b-5 are consistent with the principles of taxation fixed by the Constitution and are not in contravention of Article VIII, section 1.

Finally, appellant contends that Article 5221b-12(c) is unconstitutional because the statute constitutes an improper confiscation of capital and denies due process. The questioned statute provides for financial penalties for failure to make timely filing of wage reports as required by law.

Appellant cites no authority in support of this position. We hold that the penalty provisions are neither arbitrary nor excessive. We find appellant’s contentions under this point without merit. A similar conclusion was reached in Raines v. Unemployment Compensation Commission, 129 N.J.L. 28, 28 A.2d 46 (1942), aff’d 129 N.J.L. 387, 30 A.2d 31 (1943), cert. denied 319 U.S. 757, 87 L.Ed. 1709, 63 S.Ct. 1176 (1943).

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


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    ARTCARVED CLASS RINGS, INC., Appellant, v. CITY OF AUSTIN et al., Appellees.
    No. 5043.
    Court of Civil Appeals of Texas, Eastland.
    May 19, 1977.
    Rehearing Denied June 16, 1977.

      James A. Brady (Eskew, Brady, Womack & Muir) Austin, for appellant.
    Don Wolf, Asst. City Atty., Austin, for appellees.
   McCLOUD, Chief Justice.

The question presented is whether a declaration that an “emergency” exists in a city ordinance is binding on the courts and not subject to review.

Plaintiff, Artcarved Class Rings, Inc., sought to enjoin the City of Austin from enforcing Annexation Ordinance No. 75-1231-C as an emergency measure and requested the court to declare the ordinance void as an emergency measure because it did not properly relate to the immediate preservation of the public peace, health or safety. The court denied plaintiff’s requests for relief and in its conclusions of law held that the declaration of an emergency contained in the ordinance was not subject to review by the courts. The court found, however, that if it had the power to review the adoption of the ordinance as an emergency, measure, it would find that on the 31st day of December, 1975, and prior to the passage of Ordinance No. 75-1231-C, the City Council heard no evidence as to the nature or existence of an emergency, and that in fact no emergency of any kind relating to the immediate preservation of the public peace, health or safety existed on December 31, 1975.

Plaintiff, Artcarved Class Rings, Inc., has appealed. We affirm.

Plaintiff does not contend the ordinance is totally void, only that it is void as an “emergency measure.” Plaintiff concedes the ordinance became effective 10 days after its passage, but argues it did not become effective “immediately upon its passage” as stated in the ordinance. See Western Heights Land Corporation v. City of Fort Collins, 146 Colo. 464, 362 P.2d 155 (1961).

On December 31, 1975, the City Council of the City of Austin passed Ordinance No. 75-1231-C, as an emergency measure, annexing to the City 51.77 acres of land owned by plaintiff. The ordinance provided in part:

“SECTION 3: WHEREAS, an emergency exists concerning the safe, orderly and healthful growth and development of the City in order to assure the immediate preservation of the public peace, health, safety and general welfare both of the public residing within the City and the public residing adjacent to the City and such emergency requires the suspension of the rule providing for the reading of an ordinance on three separate days, and requires that this Ordinance become effective immediately upon its passage; therefore, the rule requiring the reading of an ordinance on three separate days is hereby suspended and this Ordinance shall become effective immediately upon its passage, as provided by the Charter of the City of Austin.”

Article II, Section 11 of the Charter of the City of Austin provides in part:

“. . .no ordinance shall become effective until the expiration of 10 days following the date of its final passage, except where an ordinance relating to the immediate preservation of the public peace, health or safety, is adopted as an emergency measure by the favorable votes of five or more of the councilmen and contains a statement of the nature of the emergency.’’ (emphasis added)

Plaintiff contends the declaration of an emergency contained in a city ordinance is not conclusive and the courts can review the matter to determine if in fact an emergency existed.

The various states are divided as to whether an emergency declaration in an ordinance is “conclusive” or “nonconclu-sive.” The subject is fully discussed in 35 A.L.R.2d 586. The annotation reveals that Geller v. Dallas R. Co., 245 S.W. 254 (Tex. Civ.App.-Dallas 1922) rev’d on other grounds, 114 Tex. 484, 271 S.W. 1106 (1925) applied the nonconclusive rule, while Bradshaw v. Marmion, 188 S.W. 973 (Tex.Civ.App.-El Paso 1916, no writ) applied the conclusive rule. We have found no case by our Supreme Court discussing the rule applicable to city ordinances, however, the conclusive rule was applied in Williams v. City of Borger, 340 S.W.2d 864 (Tex.Civ.App.-Amarillo 1960, writ ref. n. r. e.). There, the appellant contended an ordinance calling an election was void because it did not comply with the provisions of the city charter relative to the passage of an emergency measure. Chief Justice Denton, speaking for the Court, said:

“It is appellant’s contention that the state of emergency was not properly revealed or sufficiently specified within the ordinance itself. The ordinance asserts that an emergency exists. This is conclusive and is not subject to review by the-courts. Bradshaw v. Marmion, Tex.Civ.App., 188 S.W. 973; 30-A Tex.Jur., page 278. We are of the opinion the same reasoning is to be applied to enactment of emergency measures of a home rule city by its legally constituted commission as that of the Legislature enacting emergency measures. The Supreme Court, in Day Land & Cattle Co. v. State of Texas, 68 Tex. 526, 4 S.W. 865, 873, stated the rule:
‘If the legislature states facts or reasons which in its judgment authorize the suspension of the rule and the immediate passage of a bill, the courts certainly have no power to re-examine that question, and to declare that the legislature came to an erroneous conclusion.
The legislature ascertains in its own way the facts on which it bases its action, and it is made the sole judge whether facts exist to authorize the immediate passage of a bill; and whatever facts or reasons it may give for such action must be held sufficient.’
We therefore conclude that the ordinance complained of complies with the provisions of the city charter pertaining to the passage of emergency measures, and was therefore valid and sufficient to form a legal basis for the election which it called for.”

In both Bradshaw, supra, and Williams, supra, it was observed that our Supreme Court in Day Land & Cattle Co. v. State of Texas, 4 S.W. 865 (Tex.1887) adopted at an early date the conclusive rule as to legislative declarations of emergency. There is no reference to Day Land & Cattle Co., supra, in Geller, supra, and the court in Geller cited with approval cases from other jurisdictions which followed the nonconclusive rule. We do not consider Geller controlling.

In Kadderly v. City of Portland, 44 Cr. 118, 74 P. 710 (1903), the court justified the application of the conclusive rule as follows:

“But, it is argued, what remedy will the people have if the Legislature, either intentionally or through mistake, declares falsely or erroneously that a given law is necessary for the purposes stated? The obvious answer is that the power has been vested in that body, and its decision can no more be questioned or reviewed than the decision of the highest court in a case over which it has jurisdiction. Nor should it be supposed that the Legislature will disregard its duty, or fail to observe the mandates of the Constitution. The courts have no more right to distrust the Legislature than it has to distrust the courts. The Constitution has wisely divided the government into three separate and distinct departments, and has provided that no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in the Constitution expressly provided. Const, art. 3, § 1. It is true that power of any kind may be abused when in unworthy hands. That, however, would not be a sufficient reason for one co-ordinate branch of the government to assign for attempting to limit the power and authority of another department. If either of the departments, in the exercise of the powers vested in it, should exercise them erroneously or wrongfully, the remedy is with the people, and must be found, as said by Mr. Justice Strahan in Biggs v. McBride, supra, [17 Or. 640, 21 P. 878] in the ballot box.”

We hold that Texas is aligned with those states holding that the determination of an emergency by either the state legislature or a municipal governing body is conclusive and not subject to review. See also: “conclusive”—State v. City of Columbus, 175 Ohio St. 337, 194 N.E.2d 859 (1963); In re Supreme Court Referendum Petition, 530 P.2d 120 (Okl.Sup.1974); McCray v. City of Boulder, 165 Colo. 383, 439 P.2d 350 (1968); Biggs v. Maryland-National Capital Park and Planning Commission, 269 Md. 352, 306 A.2d 220 (1973); contra, “nonconclusive”— Town of Burnsville v. City of Bloomington, 268 Minn. 84, 128 N.W.2d 97 (1964); State ex rel. Tyler v. Davis, 443 S.W.2d 625 (Mo.Sup.1969).

Plaintiff next argues that the ordinance on its face, without regard to any factual inquiry, does not contain “a statement of the nature of the emergency” as is required by Article II, Section 11 of the Austin City Charter. We disagree.

Plaintiff says the statement in the ordinance that the “safe, orderly and healthful growth and development of the City creates an emergency,” failed to comply with the charter and shows on the face of the ordinance that no emergency in fact existed. Plaintiff has misinterpreted the language contained in the ordinance. The ordinance states that an emergency exists and the emergency concerns the “safe, orderly and healthful growth and development of the City.”

In Greenberg v. Lee, 196 Or. 157,248 P.2d 324, 35 A.L.R.2d 567 (1952), the court had before it the contention an ordinance failed to comply with the city charter which provided that the ordinance “specify with distinctness the facts and reasons constituting such emergency.” In upholding the ordinance, the court said:

“ ‘ * * * If there is any doubt as to whether the facts do or do not state a case of immediate necessity, that doubt should be resolved in favor of the legislative declaration (Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 585, 74 A.L.R. 1189); or, as it has otherwise been stated, ‘if fairminded and intelligent men might reasonably differ as to the sufficiency and truth of the fact assigned for placing the act in effect immediately upon its passage, the courts are concluded by the finding’ (Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359, 361, and cases referred to); or, if the legislature ‘states facts constituting an emergency so that its action cannot be said to be arbitrary, courts cannot say that it has not performed its constitutional duty, even though they might disagree with the legislature as to the sufficiency of declared facts to constitute a sufficient reason for immediate action.’ Baker v. Hill, 180 Ark. 387, 21 S.W.2d 867, 868.’ ”

The Austin City Charter provision is rather general and requires only a “statement of the nature of the emergency.” We hold the ordinance complied with the charter. For a discussion of ordinances that “just barely” complied, see McCray v. City of Boulder, 165 Colo. 383, 439 P.2d 350 (1968) and Fladung v. City of Boulder, 160 Colo. 271, 417 P.2d 787 (1966).

We have considered all of plaintiff’s points of error and all are overruled.

Judgment of the trial court is affirmed.


author: JAMES, Justice.

text:
    Victoria V. BARRY, Appellant, v. Julius O. ADAMS et al., Appellees.
    No. 5698.
    Court of Civil Appeals of Texas, Waco.
    May 19, 1977.
    Rehearing Denied June 16, 1977.
    Danny C. Wash, David L. Hodges, Wash & Hodges, Waco, for appellant.
    Louis S. Muldrow, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellees.
   OPINION

JAMES, Justice.

This is an appeal from an instructed verdict. The trial court excluded some evidence critical to Plaintiff-Appellant’s case on the ground that it violated Article 3716, Vernon’s Texas Civil Statutes, commonly called the Dead Man Statute. We hold that the exclusion of the proffered evidence was error, thereby causing the instructed verdict to be erroneous, and reverse and remand the cause for retrial.

Plaintiff-Appellant Victoria V. Barry brought this suit against Defendant-Appel-lees Julius 0. Adams individually and Honorable Robert F. Salter as Independent Executor of the Estate of George H. Adams, Deceased, to probate an alleged lost will of the said George H. Adams, dated January 29, 1972, and to set aside the probate of a will of the said deceased executed on July 31, 1968. Defendant Julius 0. Adams is a brother to deceased and beneficiary under the 1968 will, and the said Robert F. Salter is the independent executor of the estate of the deceased under the 1968 will.

This suit was brought initially in the County Court but was transferred to the District Court prior to trial.

Plaintiff Barry alleged that the said George H. Adams died on September 3, 1973, leaving a validly executed will naming Plaintiff as sole beneficiary therein, said will being dated January 29, 1972, which is asserted to be the last will of the deceased. The 1972 will was alleged to be lost and was therefore not produced in court. The 1968 will of George H. Adams had previously been probated prior to the institution of Plaintiff Barry’s suit.

Defendants Julius 0. Adams and Executor Salter filed a contest to Mrs. Barry’s application to probate the 1972 will, denying that any will was executed by the deceased subsequent to the 1968 will.

During the trial, Plaintiff Barry offered her own testimony to the effect that on January 29, 1972, she and the deceased were in the law office of Honorable Robert F. Salter, that on such occasion she saw the will of George H. Adams bearing date of January 29, 1972, that said will was executed by George H. Adams and witnessed by Edwin Powell and Mrs. Ruth Penny, and that under the terms of this will the said George H. Adams left all of his property to Plaintiff.

Upon timely objection having been made to the admissibility of such evidence, the trial court excluded same but permitted Plaintiff to present this evidence in a bill of exception. Mrs. Barry testified that on this occasion she and the deceased George H. Adams were with Attorney Salter in Salter’s office, and that together with Mr. Edwin Powell (an attorney who practiced with Mr. Salter) and Mrs. Ruth Penny (Mr. Salter’s secretary) they were all five present.

The trial court excluded the above evidence on the ground that it violated Article 3716, the Dead Man Statute. After both sides had rested, Defendants moved for an instructed verdict on the ground that there was no evidence that the deceased executed a will on or about January 29, 1972.

The trial court granted the Defendant’s motion, withdrew the case from the jury, and entered judgment affirming the probate of the 1968 will, denying the probate of the alleged lost will, and decreeing that Plaintiff Barry take nothing.

Plaintiff Barry appeals contending the trial court erred in excluding the above-stated testimony offered by her and in granting the Defendant's motion for instructed verdict. She asserts that if her said testimony had been admitted into evidence, that there would have been sufficient evidence to raise fact questions concerning the existence of, execution of, and provisions of the lost will in question. We sustain these contentions and thereby reverse and remand the cause for retrial.

Article 3716 prohibits parties from testifying to transactions with, or statements by, a deceased person in actions by or against executors, administrators, heirs, guardians and legal representatives, in which actions judgment may be rendered for or against them as such, unless called to testify by the opposite party. It is the policy of our Supreme Court to strictly construe the language of such article and thus not extend its coverage by construction. Ragsdale v. Ragsdale (1944) 142 Tex. 476, 179 S.W.2d 291; Hutto v. Cook (1942) 139 Tex. 571, 164 S.W.2d 513.

Article 3716 does not disqualify a witness from testifying to facts that such witness may know of her own knowledge. Taylor v. Jones (Tex.Civ.App. El Paso CA 1939) 135 S.W.2d 767, writ dismissed, judgment correct; Wideman v. Coleman (Com.App.1929) 17 S.W.2d 786, opinion approved; Chajkowski v. Clements (Tex.Civ.App. Galveston CA 1950) 229 S.W.2d 633, writ dismissed; Whitis v. Whitis (Tex.Civ.App. Waco CA 1977) opinion dated March 24, 1977, 549 S.W.2d 54, no writ.

In the case at bar, Mrs. Barry’s testimony in question was based on her own knowledge, received from her reading of the will of George H. Adams, and was not based on any statement made by the deceased or any transaction with the deceased. From her reading of the will in question, she saw that it bore the date of January 29, 1972, that it was executed by the deceased, that it was witnessed by Edwin Powell and Ruth Penny, and that she was the sole beneficiary named therein. From her examination of this instrument she was able to know these things.

Stated differently, we do not believe the offered testimony in question is based upon a transaction with the deceased, even though the deceased was present when Mrs. Barry obtained the knowledge to which she testified. See Martin v. McAdams (1894) 87 Tex. 225, 27 S.W. 255. It has been held that evidence as to the contents of a lost will executed by the deceased, and that it was the deceased’s handwriting, observed and learned by interested witnesses after the death of the deceased, was admissible, on the theory that it was not based on a transaction with the deceased. Roberts v. Roberts (Tex.1966) 407 S.W.2d 772, expressly approving the above holdings by the Waco Court of Tex. Civil Appeals in 405 S.W.2d 211.

In the instant case, the deceased was present on the occasion wherein Mrs. Barry gained the knowledge to which she testified; however, we are of the opinion that Mrs. Barry was testifying as to the above-stated matters of her own knowledge which were not based on any transaction with the deceased, and we so hold. We wish to emphasize that should Mrs. Barry’s testimony be broadened beyond the facts as above-stated, that it would probably violate Article 3716.

Since we are of the opinion that the evidence in question was admissible, then it follows that material fact issues were presented which should have been submitted to the jury, and the instructed verdict was erroneous. We therefore reverse and remand the cause for retrial.

REVERSED AND REMANDED.


text:
    James E. ROBINSON, Appellant, v. The CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
    No. 5704.
    Court of Civil Appeals of Texas, Waco.
    May 26, 1977.
    Rehearing Denied June 16, 1977.

      George Clark and Tom L. Ragland, Clark, Fisher, Gorin, McDonald & Ragland, Waco, for appellant.
    Wade Hutto, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case. Plaintiff-Appellant James E. Robinson brought this suit against Defendant-Appel-lee Charter Oak Fire Insurance Co., his employer’s insurance carrier, for workmen’s compensation and doctor’s bills growing out of an injury suffered by him in the course of his employment on July 28,1975. At the time and on the occasion of such injury, Plaintiff was employed by King Tire Sales, Inc. in Waco, Texas, as a tire changer. He sustained a back injury while loading a heavy tire mounted on the rim into the body of a pickup truck. The tire and rim weighed about 120 pounds. Plaintiff alleged total and permanent disability.

Trial was had to a jury which found: (1) Plaintiff received an injury on or about July 28, 1975; (2) in the course of his employment by King Tire Sales, Inc.; (3) such injury was a producing cause of total disability; (4) which began on July 28, 1975; (5) that such total incapacity was temporary; (6) and continued for fifteen weeks; (7) in answer to Special Issue No. 7, the jury failed to find that such injury was or will be a producing cause of any partial disability.

Pursuant to and in harmony with the jury verdict, the trial court entered judgment finding that Plaintiff was entitled to total temporary disability benefits in the amount of $70.00 per week for fifteen weeks plus $130.25 worth of doctor bills. The judgment further recited that the Defendant insurance carrier had already paid Plaintiff for the fifteen weeks’ compensation, and therefore entered judgment in favor of Plaintiff against Defendant for the $130.25 and costs.

From this judgment Plaintiff-Appellant Robinson appeals on a single point of error; to wit, that the jury’s answers to special issues numbers 5, 6, and 7 are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. As stated above, by these answers the jury found (5) that the total incapacity was temporary, (6) that it continued for fifteen (15) weeks, and (7) the jury failed to find that Plaintiff’s injury was or will be a producing cause of any partial incapacity. We sustain this point of error and thereby reverse and remand the cause for retrial on the merits.

In passing upon this point of error, we have carefully reviewed the entire record and weighed the evidence in support of and contrary to the jury’s findings in question, as we are obliged to do. In re King’s Estate (1951), 150 Tex. 662, 244 S.W.2d 660.

Plaintiff Robinson was thirty-eight years of age at the time of trial. His testimony may be summarized as follows: On the morning of July 28,1975, while working for King Tire Sales as a tire changer, flat fixer, and repairman, he was loading a heavy tire mounted on a rim into a pickup truck, when he felt something pop on the left side of his lower back. He at once developed a severe pain in his back which covered the area from his head down to his tailbone. He said, “It felt like a bone broken,” and for about five minutes he “could not breathe good,” he remained standing at half bend for a while, and then sat down for about ten minutes. The injury was reported to Jerry Ponder, the owner and general manager of King Tire Sales, who in turn got a medical appointment for Plaintiff to see Dr. Wilson Crosthwait, the insurance carrier’s doctor. The accident occurred about 8 A.M., Mr. Ponder told Plaintiff of the medical appointment about 9:30 A.M., and the appointment with Dr. Crosthwait was set up for 2:30 P.M. that same date. Plaintiff was driven to the doctor by another employee of King Tire Sales in a company vehicle. Dr. Crosthwait listened to Plaintiff tell of the accident and where he hurt, and then felt around on him and then called Dr. R. K. Gassler’s office and set up an appointment for Plaintiff to see Dr. Gassier, an orthopedic surgeon. The earliest an appointment could be had with Dr. Gassier was two days later, July 30, 1975. Although Plaintiff testified he was in pain at the time, Dr. Crosthwait did not give him any medicine.

Plaintiff complained to Dr. Gassier that he was “hurting all over.” Dr. Gassier prescribed medications for Plaintiff, had X-rays made, and gave him heat treatments (diathermy) in his office. These diathermy treatments were administered to Plaintiff for three weeks, after which Plaintiff was sent to physiotherapy at Providence Hospital. This physiotherapy consisted of Plaintiff being placed on a stretch machine with weights. These treatments were very painful to Plaintiff over his entire spine with the principal location of the pain being in his lower back where he experienced the popping sensation at the time he lifted the tire. These physiotherapy treatments were administered to him for about three to four weeks. Dr. Gassier also gave Plaintiff an elastic belt to support his back. Plaintiff took the medicine prescribed by Dr. Gassier, wore the back brace which Dr. Gassier gave him, went for the physiotherapy as directed, and did everything Dr. Gassier told him to do. However, none of these things Dr. Gassier prescribed gave Plaintiff relief from his pain.

Plaintiff testified Dr. Gassier told him after examination of the X-rays; “I see something in your back, but whatever it is you’ll have to live with it the rest of your life. He didn’t say. He said, it was something, looked like a broken bone but he didn’t say it was broke all the way. But whatever he said it was, I had to live with it.”

While Plaintiff was still under the care of Dr. Gassier, for reasons not shown from the record, the insurance company called Plaintiff and requested him to go for examination to Dr. Stephen Goldberg, a neurological surgeon. Plaintiff testified that he did not know Dr. Goldberg, and had never heard of him before, and that he had made no complaint to anyone about Dr. Gassier or his treatments.

In compliance with the insurance company request, Plaintiff saw Dr. Goldberg at his office on November 5, 1975. Dr. Goldberg saw Plaintiff only this one time, for a period of some 30 to 45 minutes. Plaintiff told Dr. Goldberg that he was under the treatment of Dr. Gassier, and told him about his injury.

Plaintiff testified that Dr. Goldberg felt around on his back, stuck some pins in his legs and back, had X-rays made, and then told Plaintiff he could not find anything wrong with him, and that he would be able to go back to work. Plaintiff told him he was not able to work. According to Plaintiff’s testimony, Dr. Goldberg told Plaintiff he could “take a myelogram and could tell me what was wrong with me”; however, Dr. Goldberg took no myelogram. Plaintiff testified he had no idea what a myelogram was, and Dr. Goldberg did not explain to him what it was. Plaintiff’s testimony with reference to the myelogram was not controverted by Dr. Goldberg, who testified as a witness for the Defendant.

Plaintiff testified that after he had seen Dr. Goldberg, “my pain was still severe in the lower back and I would walk a little bit and I would get stiff and I would get numb in the legs, so after that I started to go back to Dr. Gassier.”

Plaintiff said he went back to Dr. Gassier in accordance with an appointment previously made, and when Dr. Gassier learned the company had sent Plaintiff to Dr. Goldberg, Plaintiff testified Dr. Gassier became upset and angry: “he told me he wasn’t going no further because he figured the Insurance Company didn’t do him right because they sent me to the Insurance doctor and he wasn’t going to have nothing else to do with it.” At that time Plaintiff had some medicine that needed to be refilled, and Dr. Gassier refused to refill it. Dr. Gassier refused to give Plaintiff any more treatment or medicine, and made no suggestion of any kind to Plaintiff as to what to do about further medical treatment. Plaintiff testified that at this time he was not able to work, that he was having a lot of pain and numbness in his legs, and that when he sits for a long time, he feels numb and his feet start hurting.

After this last visit to Dr. Gassier, which occurred on November 17, 1975, the Defendant insurance company never furnished Plaintiff any more medical treatment of any kind, that is to say, no medicines, therapy, or a doctor. Moreover, the Defendant without giving Plaintiff any notice or reason, stopped paying Plaintiff compensation at the end of fifteen weeks, as of November 10,1975. In other words, the company commenced paying Plaintiff $70.00 per week beginning July 28, 1975, the date of injury, and paid him for fifteen weeks until November 10, 1975.

Not having any further medical treatment and not having any compensation or any other income, Plaintiff testified he still needed medical care and treatment. His attorneys sent him to Dr. V. A. Kelley, an osteopathic physician, on February 5, 1976. He was under the care of Dr. Kelley for about six months immediately prior to trial, being last seen by Dr. Kelley on August 5, 1976. The trial commenced on August 9, 1976. At the outset, Dr. Kelley examined him and sent him to Dr. Wybourn, a radiologist, for X-ray examination. Dr. Kelley treated him, applied heat and a vibrating machine to his back, and had him to walk each day. However, Plaintiff testified that he got only temporary relief, and the pain and disability continued; that as of the time of trial he still had severe pain in his lower back, stiffness after walking, and numbness in his legs; that it affects him sitting for a long period of time, causing him numbness and hurting of the feet; that he has trouble sleeping, and is only able to sleep on his stomach; that he has such stiffness in the morning that it is hard for him to move; that if he stoops or twists, he feels severe pain; that when he twists his body he feels the movement of the bone in his back with a pulling and grinding feeling like bone rubbing against bone.

Plaintiff further testified that he had not worked since the date of his injury, that other than the 15 weeks compensation paid him, that he has received no income from any source since the time of his injury, and that he has not been since the date of injury nor at the time of trial able to do any kind of work.

Dr. Kelley testified that from his examination of Plaintiff and the X-rays made and interpreted by Dr. Wybourn, Plaintiff had an anterior arthritic spur on his fifth lumbar vertebra, as well as a congenital anomaly, to wit, the transverse process on the right side was incorporated into the sacrum (tailbone), so that Plaintiff has only four lumbar vertebrae on the right side, but five lumbar vertebrae on the left side. Also, the X-ray showed a sclerosis along the mid-portion of the right sacroiliac joints. Dr. Kelley testified to the following diagnosis: that Plaintiff had suffered ligament damage in the lumbosacral and sacroiliac area on the left side with numbness into the legs indicating disc involvement in the lumbar area; that he was disabled from doing the usual and ordinary tasks of a workman, that this condition had existed since the date of his injury, July 28,1975, and that in his opinion his disability was permanent. Dr. Kelley further testified that the history given him by Plaintiff was confirmed by his objective findings.

Dr. Wybourn, the radiologist, testified as to what the X-ray pictures showed that he made at Dr. Kelley’s request, and corroborated Dr. Kelley’s testimony concerning the bone structure of Plaintiff’s back.

Dr. Gassier testified by way of written interrogatories to this effect: That he first saw Plaintiff on July 30,1975. When asked to describe in detail what tests he performed and examinations made with regard to Plaintiff’s complaints, Dr. Gassier answered: “I don’t know that I could give in detail the tests performed, other than the usual tests that I give anyone who is complaining of back pain, and those have been commented on in my notes which I have given the court reporter. I believe the notes are self-explanatory.” He also testified to the congenital anomaly in Plaintiff’s back as above referred to in Dr. Kelley’s testimony, wherein the L-5 vertebra is joined to the sacrum; however, he said this was a minor defect which in his opinion would not hinder Plaintiff’s movement nor make him more susceptible to low back injury, nor to ligament damage. Dr. Gassier testified that “I did feel he (Plaintiff) had pain in the left lumbosacral region,” but that he had no opinion as to why Plaintiff did not respond to physiotherapy.

Dr. Gassler’s opinion as to Plaintiff’s condition may be summarized as follows: “I felt this patient was reluctant to give up his back pain, and I could not make up my mind whether this specific alleged injury of 7-28-75 was the cause of his back pain. The only diagnosis I could put on this man was probable low back pain reluctant to get well.” Also, “I could not give any prognosis on this patient because my last notes were that on 10-29 he was doing fine, but it was suggested he go to see a neurosurgeon, and my last notes were that he came to see me on November 17th telling me that he was still hurting, and at that time it was my opinion that since he had been sent to another doctor that I was no longer his doctor, and that I suggested that he see the insurance company to find a doctor to take care of him.” When asked what his opinion was with regard to whether or when Plaintiff would be able to go back to work, Dr. Gassier replied: “I could not give any medical probability on this patient, because he at no time showed any definite signs of trying to get well, or getting well, and I don’t believe that this was particularly due to a specific problem or a specific injury.” When asked what his opinion was as to whether he was totally and permanently disabled when he examined Plaintiff, Dr. Gassler’s answer was: “If a man persistently stays on crutches and persistently complains of pains in the low back, then he is disabled. His disability is difficult to evaluate because of these factors.”

Dr. Gassier further testified that on August 1, 1975, when he saw Plaintiff, he told Plaintiff to stay off work and have diathermy daily, and at that time he was of the opinion that Plaintiff was unable to work. Significantly, the last time Dr. Gassier saw the Plaintiff was on November 17, 1975, nearly nine months before the trial which commenced on August 9, 1976, and he admitted on cross-examination that he does not know anything of his own knowledge about the present condition of Plaintiff.

Dr. Goldberg, a neurological surgeon, testified that he examined the Plaintiff on November 5, 1975, at the request of the Defendant Insurance Company, at which time Plaintiff was complaining of pain in his low back primarily on the left side. Dr. Goldberg testified that he performed what was considered a standard neurological evaluation upon Plaintiff, and when asked to give his opinion, stated: “As far as I was able to determine, on the basis of what I found at the time of the examination and the history he gave of how he was injured, it would be my opinion that he may have sustained some ligament or muscle injury at the time of his accident but I would have expected that this would have resolved itself, cured itself by that time. He did not have any evidence of any kind of nerves that were not working or pinched.” He further testified that he thought Plaintiff would have been able to perform a lot more tasks than he said he was capable of; that he saw no evidence of any type of disc problem or nerve root impingement problem. However, Dr. Goldberg testified on cross-examination that he saw Plaintiff only the one time, for thirty to forty-five minutes, and he could tell only “what my impression was from the day I saw him;” that if he had been treating Plaintiff over a period of time with more familiarity of Plaintiff’s symptoms and complaints, that this “probably would” have had an effect on his opinion; and in fairness he could not express an opinion to the jury as to Plaintiff’s present physical condition at the time of trial with reference to whether he is disabled. He further testified that on the one occasion when he saw Plaintiff, he was cooperative and gave no evidence of malingering or falsifying his complaints.

Our Supreme Court in Houston Fire and Casualty Insurance Co. v. Dieter (Tex.1966), 409 S.W.2d 838 at p. 841 said:

“The inquiry at the trial of a workmen’s compensation case is the extent of incapacity of the injured employee at that time. It is the purpose of the Workmen’s Compensation Act to afford compensation for incapacity for work as it then exists.” (emphasis supplied).

The only testimony in the record showing the extent of disability of Plaintiff at the time of trial is that of the Plaintiff himself and Dr. Kelley. The Plaintiff testified to serious disabling symptoms and complaints as hereinabove set out, which have persisted and have not improved for more than a year prior to trial, which conditions have been corroborated and confirmed by Dr. Kelley, who treated him for six months immediately preceding the trial. Dr. Kelley last saw him just four days before the trial started.

On the other hand we have the testimony of Drs. Gassier and Goldberg, who were furnished and paid by the Defendant-Appellee insurance company, both of which doctors were inclined to believe the Plaintiff’s symptoms and physical problems were not serious. However, we do not believe the testimony of these Defendant’s doctors is entitled to much weight, because neither of them had seen the Plaintiff for nine months before the trial, and neither of them could and did express any opinion concerning Plaintiff’s condition at the time of trial. As stated, Dr. Goldberg had seen Plaintiff only one time for 30 to 45 minutes, and admitted that if he had seen him more and had been more familiar with his condition, that this probably would have affected his opinion. In short, the Defendant-Appel-lee’s testimony concerning Plaintiff’s extent of disablement at the time of trial is inconclusive, while that of Plaintiff-Appellant is definite.

For the above reasons we are of the opinion and hold that the jury’s answers to special issues numbers 5, 6, and 7 are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, supra. We accordingly reverse and remand the cause to the trial court for retrial on the merits.

REVERSED AND REMANDED.


author: HUGHES, Justice.

text:
    Randell Hilton SMITH, Appellant, v. Norma CARR-SMITH, Appellee.
    No. 17881.
    Court of Civil Appeals of Texas, Fort Worth.
    May 26, 1977.

      Staples & Foster and Ross T. Foster, Hurst, for appellant.
    Glazner, Dorman & Kent, Carmen Glaz-ner and Ernest May, Fort Worth, for appel-lee.
   OPINION

HUGHES, Justice.

Suit by Norma Carr-Smith against Randell Hilton Smith to recover on a promissory note made by Smith to her as a part of the property settlement in their divorce suit. Smith filed a counter claim for breach of a separate provision in the same settlement. Before selecting a jury on the day set for trial, trial court dismissed Smith’s counter claim; admitted the note into evidence; and rendered judgment for Carr-Smith on the note. Smith appealed.

We reverse and remand.

Smith did not deny execution of the note, nor that it was in consideration for property to be received by him as his separate property under the divorce settlement agreement. His first amended answer recited in part that:

1. He had timely made all payments required by the property settlement agreement. The agreement provided: “Petitioner (Carr-Smith) will pay income tax on the $600.00 payment made pursuant to the promissory note described in Paragraph 1(e) above.”

2. Carr-Smith has not paid any of the income tax attributable to the $600.00 payments and Smith has been assessed additional income taxes on such payments.

3. He is entitled to withhold enough from future note payments to pay future income taxes levied on such payments and deficiencies in his payments in the past have been set off by Carr-Smith’s failure to pay income taxes due.

4. Carr-Smith, in fact, owes him a large credit.

The counter claim, which was dismissed, asked for money damages for income taxes he has paid because of the note payments.

Smith urges, as error, the dismissing of his counter claim without having the opportunity to re-plead. “The courts have generally held that a party should be afforded an opportunity to amend his pleadings. Ragsdale v. Ragsdale, 520 S.W.2d 839 (Fort Worth Civ.App., 1975, no writ hist.).” Liberty Mutual Ins. Co. v. City of Fort Worth, 524 S.W.2d 743, 745 (Tex.Civ.App.—Fort Worth 1975, writ dism’d.). See also Clark v. City of Dallas, 228 S.W.2d 946 (Tex.Civ.App.—Waco 1950, no writ), where near analogous situation was presented. There, as here, was exception by the party whose cause was dismissed. He obtained reversal of the judgment in a case where the trial court deemed his pleadings impossible to amend so as to aver a cause of action.

In this case due process was not observed in that respect; nor was it observed in effect, in granting a summary judgment without notice to Smith. We therefore sustain points of error 1, 2 and 9. We overrule all of the other points of error.

Reversed and remanded.


author: CLAYTON, Justice.

text:
    PARI-MUTUEL CLERKS’ UNION OF KENTUCKY, LOCAL 541, SEIU, AFL-CIO, by Andy Mann, President and Larry Wilson, Appellants, v. KENTUCKY JOCKEY CLUB et al., Appellees.
    Supreme Court of Kentucky.
    April 22, 1977.
    Rehearing Denied July 1, 1977.

      Herbert L. Segal, Irwin H. Cutler, Jr., Segal, Isenberg, Sales & Stewart, Louisville, for appellants.
    James U. Smith, Jr., Andrew J. Russell, Smith & Smith, Irwin G. Waterman, Morris, Garlove, Waterman & Johnson, Louisville, for appellees.
   CLAYTON, Justice.

In this case we are required to determine whether an employer over which the National Labor Relations Board has declined jurisdiction may lawfully discharge an employe because he has authorized a labor union to represent him for the purpose of collective bargaining, and, if not, what relief a circuit court is authorized to order in his behalf.

Appellant Larry Wilson was employed as an assistant starter at the Latonia Raceway in Florence, Kentucky. Because the NLRB, which normally has jurisdiction over labor disputes, has for some time declined to assert jurisdiction in any proceeding involving the horseracing industry, this action was brought in the Boone Circuit Court. The appellants alleged that on January 18,1974, a majority of the employes in an appropriate unit at the raceway, the assistant starters, authorized the Pari-Mutuel Clerks’ Union of Kentucky, Local 541, Service Employes International Union, AFL-CIO, to represent them for the purpose of collective bargaining, and that on January 21,1974, a telegram was dispatched so informing the employer and demanding that the union be recognized as the starters’ exclusive bargaining agent. It was further alleged that Wilson, as a member of this majority, signed a card granting the union such authority and that on the same day, January 18, 1974, the employer terminated Wilson’s employment due solely to his union association, taking from him at this time his racetrack identification card. Appellants claimed these acts to be in violation of KRS 336.130 and sought injunctive relief and an award of back pay for the time he would have been employed but for his discharge. The court below issued its restraining order on January 23,1974, enjoining the appellees from unlawfully terminating Wilson’s employment, from refusing to reemploy him, and from refusing to return his identification card. Additionally, appellees were restrained from resorting to intimidation, threats and coercion in any form with regard to those employes wishing to associate for the purpose of collective bargaining, and from refusing to recognize and to bargain in good faith with the union. The appellees subsequently moved to dissolve the restraining order and to dismiss the complaint for failure to state a claim upon which relief can be granted. This appeal results from a ruling in favor of those motions.

Accepting as true the factual allegations made by the complaint, we have no difficulty in concluding the discharge of appellant Wilson to be within the sphere of activity condemned by KRS 336.130. We can think of few tactics available to an employer seeking to discourage association by its employes for the purpose of collective bargaining which are more coercive or intimidating than the discharge or threatened discharge of those employes pursuing that objective. It thus becomes necessary that we consider whether a circuit court is authorized to grant the injunctive relief sought by appellants; or, to state the issue another way, whether the General Assembly, in enacting KRS Chapter 336, has empowered the circuit courts of this state to perform the functions of the National Labor Relations Board in cases where the NLRB either lacks or declines to exercise jurisdiction. We answer this question in the negative.

The subject matter of KRS Chapter 336 is the “Department of Labor”, the commissioner of which is authorized by KRS 336.150 to intervene in labor disputes at the request of a party, for purposes of mediation and conciliation. Nowhere is there any suggestion that the circuit courts of this Commonwealth are to be given similar authority. To grant the relief sought here, then, we would be required to expand the narrow wording of the chapter by supplying provisions authorizing the courts to order employers to conduct elections for the recognition of collective-bargaining agents, to order that such collective bargaining be conducted, and to order the reinstatement of discharged employes with awards of back pay, along with providing the procedures for enforcement of these orders. In short, we would need to completely rewrite the chapter, making it a state-level equivalent to the National Labor Relations Act, 29 U.S.C. § 151, et seq. Obviously, we must decline to do so, since legislation is constitutionally the exclusive function of the General Assembly and not that of the courts. We therefore conclude the circuit court acted correctly in dissolving its restraining order on the ground that it lacked jurisdiction to grant the injunctive relief sought.

We do not agree, however, that the granting of the motion to dismiss the complaint for failure to state a claim was proper. The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. Clay, Ky. Prac., 3rd Ed., Civil Rule 12.02, Comment 9, n. 17.

The complaint herein, both as originally filed and as amended, adequately raises the issue of whether the termination of Wilson’s employment was in violation of KRS 336.130, which, if proved before the trial court, entitles Wilson under KRS 446.-070 to recover from his former employer whatever damages he has sustained by reason of the violation. Here the complaint demanded damages, and thus adequately stated a cause of action. Granting of the motion to dismiss was therefore in error, because in doing so, the circuit court completely ignored a set of facts entitling appellants to relief.

That portion of the judgment of the Boone Circuit Court dissolving its temporary restraining order is therefore affirmed, while that portion dismissing the complaint for failure to state a claim upon which relief can be granted is reversed, and the cause is remanded for further proceedings consistent herewith.

All concur.

      . This statute provides as follows:
      “(1) Employes may, free from restraint or coercion by the employers or their agents, associate collectively for self-organization and designate collectively representatives of their own choosing to negotiate the terms and conditions of their employment to effectively promote their own rights and general welfare. Employes, collectively and individually, may strike, engage in peaceful picketing, and assemble collectively for peaceful purposes.
      “(2) Neither employers or their agents nor employes or associations, organizations or groups of employes shall engage or be permitted to engage in unfair or illegal acts or practices or resort to violence, intimidation, threats or coercion.”


author: WILHOIT, Judge:

text:
    Boyd GUDGEL, Jr., Appellant, v. Elmer E. KAELIN and Pauline M. Kaelin, Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Rehearing Denied April 29, 1977.
    Discretionary Review Denied June 29,1977.

      August A. Klapheke, Ford & Klapheke, Louisville, for appellant.
    Cecil Davenport, Henry Schildknecht, Louisville, for appellees.
    Before LESTER, WILHOIT and WIN-TERSHEIMER, JJ.
   WILHOIT, Judge:

This appeal is from a judgment of the Jefferson Circuit Court holding appellant liable under the terms of a document signed by the parties which the court found to be a valid and enforceable note. The note provided for annual payments of one percent per year to appellees on the outstanding balance of principal of. a mortgage.

On April 29, 1970, appellant Gudgel and appellee Elmer Kaelin entered into a written contract for the purchase by Gudgel of a tract of land owned by Kaelin. As stated in the contract, the agreed purchase price was $60,000.00, to be paid in monthly installments of $503.80 for 204 months. The contract specified that “[tjhis payment is based on a rate of 7% interest for 17 years.” While there appears to be little evidence directly supporting it, the trial court found that the parties agreed prior to the execution of the contract that the money owed on the purchase price was to bear interest at the rate of 8 percent. We believe this was a reasonable inference to be drawn from the evidence.

A deed conveying title to the premises was delivered to the appellant on May 4, 1970. At the same time he executed and delivered to appellees the note for $60,-000.00 bearing interest at 7 percent, payable in 204 consecutive monthly installments, together with a mortgage on the premises to secure the note. Two days later the contested document was signed. It read as follows:

“This is for services agreed upon, between Boyd Gudgel Jr., and Elmer E. Kaelin, on a $60,000.00 principal, at the rate of 1% of $60,000.00. The first payment of $600.00 is due and payable on May 10, 1970. All payments thereafter are due and payable on annual anniversary dates at the rate of 1% on the balance of principal.”

The testimony established that this document had been prepared by appellee, Elmer Kaelin, and that he had told appellant sometime prior to the closing of the sale that he would not sell the property at 7 percent interest but rather would have to have 8 percent interest. Appellant informed Kaelin that the legal rate of interest was 7 percent. Appellant stated that he signed the document because Kaelin would not have gone through with the deal unless he did so, but that he signed under protest. Appellant also stated that at the time he signed the document he had no intention of paying the 1 percent interest, and he has, in fact, never made any payments thereon.

In proceedings to foreclose on the mortgage, the master commissioner found that the 1 percent agreement was void under KRS 360.020 which, at the time of the transaction, provided in relevant part:

“(1) All contracts and assurances for the loan or forbearance of more than three hundred dollars in money or other thing of value at more than the legal rate of interest, are void as to the excess over legal interest. The principal, with legal interest, may be recovered on any such contract or assurance, but not the excess of interest . . ..”

The parties agree that the legal rate of interest at the time was 7 percent.

The circuit court, hearing appellees’ exceptions to the commissioner’s report, held that appellant was estopped to plead usury since he had induced the appellees to part with their property, leading them to believe he would pay the additional 1 percent interest while actually never intending to do so.

The only question presented on appeal is whether appellant’s actions were such as to estop him from setting up the defense of usury to liability on the 1 percent document.

While courts will not lend their aid to enforcement of a contract that has as its direct object and purpose the violation of a state statute, Zeitz v. Foley, Ky., 264 S.W.2d 267 (1954), it has been recognized that in certain instances the conduct of a party to a usurious transaction may have been such that he is estopped to plead the defense of usury. As the trial court observed, neither of the parties here came before it with clean hands.

It has been held in this jurisdiction that an obligor is estopped to set up the claim of usury against an innocent purchaser for value who, without notice of the usury in the note, has been induced to purchase the note by the obligor. Taulbee v. Hargis, 173 Ky. 433, 191 S.W. 320 (1917). Cases from other jurisdictions which have invoked the doctrine of estoppel in usurious transactions have generally involved situations in which the borrower is the prime mover in instigating the usurious transaction, is an attorney for the lender, or occupies some kind of fiduciary relationship to the lender, and has knowingly prepared or caused to be prepared the instrument without disclosing its illegality to the innocent lender. See, e. g., Heubusch v. Boone, 213 Va. 414, 192 S.E.2d 783 (1973); see also the cases cited in 16 A.L.R.3d 512.

The deception here was not as to the usurious character of the note, appellee was well aware of that. Rather, the deception was the hidden intention of the appellant never to pay on the note. There was no attorney—client or fiduciary relationship between the parties and appellee Elmer Kaelin himself prepared the usurious document. The borrower here did not instigate the usurious transaction but rather acquiesced in it under the coercion of the lender.

Agreements not to claim the benefits of the usury provisions, made during the existence of a debt, have been condemned in Kentucky as follows:

“It may be accepted as an uncontrover-tible proposition that agreements between a debtor and creditor, while the debt exists, by which the debtor undertakes to waive objections to usurious rate of interest, or obligates himself not to claim the benefits of the statutes against usury, are void.”

Gynthiana Building & Savings Association v. Ecklar, 112 Ky. 164, 65 S.W. 335 (1901). The policy behind this rule dictates that the 1 percent document be declared void. To hold otherwise would emasculate the usury statute, removing much of its force and efficacy for the suppression of usury and the protection of borrowers. Browning v. Thompson, 52 Ky. 387,13 B.Mon. 387 (1852). If the situation here were held sufficient to justify estopping appellant to set up usury as a defense to this action, all lenders would be able to circumvent the usury provisions by simply ensuring that a borrower was aware of the usurious nature of the transaction at the time it was entered into and then invoking estoppel if the borrower attempts to assert his statutory rights.

In light of the above and the public policy against usurious transactions, we do not believe that the conduct of the appellant here was such as to work an estoppel.

The judgment of the trial court with respect to the 1 percent document signed by the parties is reversed.


author: WINTERSHEIMER, Judge.

text:
    James H. CALLIS et al., Appellants, v. OWENSBORO-ASHLAND COMPANY, a Delaware Corporation, and Ashland Oil & Transportation Company, a Kentucky Corporation, Appellees.
    Court of Appeals of Kentucky.
    March 11, 1977.
    Rehearing Denied May 6, 1977.
    Discretionary Review Denied June 29, 1977.

      William E. Rummage, Rummage, Kamuf & Yewell, Owensboro, for appellants.
    William E. Gary, III, E. Robert Goebel, Sandidge, Holbrook & Craig, Owensboro, for appellees.
    Before WINTERSHEIMER, MARTIN and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

James H. Callis and Nelda Callis, his wife, and others, filed their original complaint in the Daviess Circuit Court on December 13, 1973, seeking compensatory damages in the amount of $162,000.00 and $100,000.00 punitive damages against the Owensboro-Ashland Company and the Ash-land Oil & Transportation Company, Defendants/Appellees. After a ten day jury trial, a verdict was returned against the Plaintiffs/Appellants. This appeal is from an order of trial and judgment dated October 11, 1974, in which the trial court adjudged that the complaint be dismissed and ordered the Appellants to pay all costs incurred by the parties in this action. A notice of appeal was filed on December 9, 1974. The Supreme Court transferred, this case to the Court of Appeals on October 8, 1976. This Court affirms the judgment of the trial court.

The Appellants raised three issues on appeal:

1. Did the trial court commit reversible error in receiving a verdict in favor of the Appellants with an award for damages as “None”?
2. Did the trial court commit error after final discharge of the jury in recalling the jury to amend and change the verdict?
3. Did the trial court exceed its authority in suggesting the jury change its verdict after recalling it?

This Court determines the principal issue to be whether the trial court committed reversible error in accepting the jury verdict after its discharge and after the correction of the form verdict. It is the opinion of this Court that the error was one of form and not of substance.

After ten days of trial, this case was submitted to the jury with several form verdicts suggested. After deliberation the jury returned with its verdict written in the blank spaces provided in the first alternative verdict. The words “None” were written after each of the three possible items of damage. The verdict was signed by the foreman and nine other members of the panel. The verdict appeared as follows:

We the jury find for the Plaintiffs and award damages as follows:
A. For permanent damage: SB NONE or
B. For temporary damage: • $ NONE
(YOU CANNOT AWARD DAMAGES FOR BOTH “A” AND “B”)
C. For damage to growing crops: $ NONE

Polling of the jury was waived and no objection to the verdict was made by either party. The trial judge then discharged the jury but almost immediately recognized the obvious inconsistency in the form. The bailiff succeeded in locating all of the jurors in the Circuit Clerk’s office and all twelve returned to the courtroom in the presence of all parties and attorneys. The trial judge questioned the jury’s foreman as to its intent and determined that the ten jurors signing the verdict intended a verdict for the defendants as to all items of damage. The trial judge then asked all ten jurors to sign the second alternative verdict if that was in fact their verdict, which they did in open court in the presence of all parties and their attorneys. No objection was made to this procedure. Counsel for the Plaintiffs/Appellants asked that the jury be polled. Each juror again affirmed the corrected verdict.

The real issue in this case is whether the trial court committed reversible error in recalling a jury to correct its verdict after it had been discharged.

A review of the record and the proceedings in this matter indicates that the error was one of form and not of substance. The trial court at every stage of the proceeding may disregard error or defect which does not affect the substantial rights of the parties. (CR 61.01)

In effect, the trial court’s instructions were special interrogatories to the jury. The answers thereto prevail over an inconsistent general verdict and the trial court may direct the entry of a judgment in accordance with the special answers, notwithstanding the general verdict. (CR 49.-02)

The true test to be applied in reconciling apparent conflicts between the jury’s answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issue as submitted. Miller v. Royal Netherlands Steamship Company, 508 F.2d 1103 (5th Cir. 1975). In this instance it is clear that the jury intended to find for the Defendants. An examination of the form verdict indicates that the jury was confused as to the language needed to award judgment to the Defendants.

It is clear that the Plaintiffs had their day in court. A competent jury decided the matter. To return this matter for a new trial would permit a possible distortion of the true jury verdict, and in effect give the Plaintiffs a second day in court after the matter had been fully litigated and finally decided. It is possible to speculate that the trial court might have followed a better practice in returning the jury to the jury room with specific instructions, but at least one Kentucky case, Penker Construction Company v. Finley, Ky., 485 S.W.2d 244 (1972) indicates that permitting the jurors to sign the verdict in open court is not objectionable.

The trial court in effect gave the Plaintiffs a directed verdict as to legal responsibility for the oil spills by instructing the jury to determine the nature and extent of the damage, if any, which resulted from the spills. In this regard, the jury found “None” for each of the three specific types of damage. The typed verdict form “We find for the Plaintiffs” was not an essential element of the issue the jury was required to decide. They had only to decide the nature and amount of the damage, if any. The test of inconsistency in a jury verdict is whether the verdict is sufficiently clear to show that the jury passed on the essential issues it was to determine. Simmons v. Atteberry, Ky., 310 S.W.2d 543 (1958)

In the instant case the inconsistency was one of form rather than substance and a jury may be returned to correct the form of its verdict at any time. Curry v. Commonwealth, Ky., 406 S.W.2d 733 (1966)

No objection was raised as to the form of the verdict prior to the final discharge of the jury.

The judgment of the trial court is affirmed.

All concur.


author: HOGGE, Judge.

text:
    Chester NOWICKE, Appellant, v. CENTRAL BANK & TRUST COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 11, 1977.
    Discretionary Review Denied June 29, 1977.
    Herman M. Dayton, Lexington, for appellant.
    John H. Burrus, Kincaid, Wilson, Schaef-fer & Hembree, Lexington, for appellee.
    Before HOGGE, HAYES and VANCE, JJ.
   HOGGE, Judge.

This is an appeal from a default judgment rendered in the Fayette Circuit Court in favor of the appellee, in an action against Chester Nowieke on a note. The appellant pledged certain security on a note to Central Bank and Trust Company, and upon default, said bank sued to recover and sell the security so pledged.

This suit herein was filed on July 21, 1972. Approximately one year after the suit was filed the appellant was finally located and served with a summons by a special bailiff. The appellant was scheduled to give his deposition on January 24, 1974. However, three days before the scheduled date, the appellant’s attorney notified appellee’s counsel that his client would not attend the deposition for medical reasons and that he had informed Nowieke that he should send a doctor’s statement as to his condition. This was never done. On January 29, 1974 an agreed order was entered to the effect that his deposition would be taken February 26,1974. Approximately three hours before the scheduled time for the deposition, the appellant telephoned his attorney to advise him that he was again ill and would be unable to attend the deposition. His attorney appeared at the scheduled time and place for the deposition, and advised the appellee that the appellant was ill and would not be able to attend the deposition. However, the attorney for the appellant did not request that opposing counsel set a new date for the deposition nor did he move the court for a new date. On February 27, 1974 the appellee moved for a default judgment in accordance with CR 37.02, and on March 6, 1974 a hearing was held on that motion. On March 8,1974 the court entered a default judgment in favor of the appellee. In the meantime, on March 5, 1974 the appellant’s attorney moved the court to allow him to withdraw as counsel of record, and filed an affidavit stating that he had received little cooperation from the appellant and that the appellant had refused to be responsive. That motion was granted, and on April 5, 1974 the appellant’s present counsel moved to set aside the default judgment. On May 5, 1974 a hearing was held on appellant’s motion to set aside the default judgment, and an order was entered denying the motion. It is from that judgment the appellant has appealed.

The issue in this appeal is whether the trial court abused its discretion in granting appellee a default judgment under CR 37.-02. CR 37.02 provides, in part, that “If a party . . . fails to obey an order to provide or permit discovery . . . ” the court may impose a variety of sanctions up to, and including, granting a default judgment.

The appellant contends that the imposition of such a harsh penalty in this case is unjust. The appellee, however, argues that the legislature intended the court to have wide latitude in the selection of sanctions it may impose and had, in fact, modified the statute to eliminate the word “willfully” from where it had previously appeared, immediately preceding the words “fails to obey”, thus indicating that there no longer was any requirement that the failure be willful.

The United States Supreme Court has on several occasions interpreted Fed.R.Civ.P. 37 on which our own Kentucky CR 37.02 is based. While indicating that the imposition of the severest sanctions available under Rule 37 must be “. . . tempered by the careful exercise of judicial discretion to assure that its imposition is merited . . it has also stated “effective discovery is exceedingly vital . . . ” and the severest sanctions should be imposed where the evidence indicates a willful failure to comply with the discovery procedure. In Re Professional Hockey Antitrust Litigation, D.C., 63 F.R.D. 641.

The leading Supreme Court Case construing Fed.R.Civ.P. 37 is Societe Internationale v. Rogers, 357 U.S. 197, at page 212, 78 S.Ct. 1087, at page 1096, 2 L.Ed.2d 1255, at page 1267 (1958) where the court stated: “. . .we think that Rule 37 should not be construed to authorize dismissal of this complaint because of petitioner’s noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner.” In that case, the court also stated, 357 U.S. at page 211, 78 S.Ct. at page 1095, 2 L.Ed.2d at pages 1266-1267:

“The findings below, and what has been shown as to petitioner’s extensive efforts at compliance, compel the conclusion on this record that petitioner’s failure to satisfy fully the requirements of this production order was due to inability fostered neither by its own conduct nor by circumstances within its control.”

The court in In Re Professional Hockey, supra, relied on the Roger's, supra, decision in holding there had been no violation of the litigant’s due process protections where the record indicated a flagrant disregard of the discovery requirements.

In the case at bar, as in In Re Professional Hockey, supra, the trial court found the evidence warranted a conclusion that the appellant had willfully failed to cooperate in the discovery process, and therefore was subject to the more severe penalties under Rule 37.

Appellant is correct in asserting that his statements concerning the reasons for his failure to comply with the order must be accepted as true in the absence of a denial thereof. Armstrong et al. v. Biggs, Ky., 275 S.W.2d 60 (1955). In that case, however, there was no proof that the defendants were willfully trying to evade discovery procedures. There, three defendants were scattered out in Ohio, Tennessee, and California and notice was served upon their attorneys only three working days pri- or to the scheduled deposition. The court in that case concluded, at page 63: “In the case at bar the attitude and prompt action of counsel for the defendants coupled with a reasonable excuse, indicated willingness rather than wilfullness [SIC].”

The trial court, in considering the totality of the facts and circumstances, concluded the appellant’s bare assertion of illness, without medical proof to support it, was outweighed by other evidence indicating a pattern of contumacy. The court considered the length of time it took to achieve service of process on the appellant; the fact that the appellant had already failed to attend the first deposition as scheduled, and his own attorney’s statements that the appellant had been uncooperative and unresponsive in preparing his defense.

[3] This court may not disturb the findings of the trier of fact where they are supported by the record. In the case of Citizens Fidelity Bank and Trust Company v. Leake, Ky., 380 S.W.2d 264, at page 266 (1964) the court stated:

“Under our rules (CR 52.01), findings of fact shall not be set aside unless clearly erroneous ... To put it another way, if the evidence is such that the verdict of a properly instructed jury based thereon would stand, it is sufficient to sustain the finding.”

Having found willful disregard of the discovery procedures, the trial court was justified in imposing a default judgment under CR 37.02.

Although we, here, deferred to the trial court’s findings of fact which supported the imposition of a default judgment in this case, this decision should not be construed to indicate that this court is departing from the long held belief that a default judgment is justified only in certain rare circumstances, and that it should be imposed only when those circumstances warrant such a severe sanction.

The judgment is affirmed.

All concur.


author: VANCE, Judge.

text:
    James Shelton SCROGHAN, Appellant, v. KRAFTCO CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1977.
    Discretionary Review Denied June 29, 1977.

      Charles William Arnold, Lexington, for appellant.
    Robert E. Reeves, Harbison, Kessinger, Lisle & Bush, Lexington, for appellees.
    Before COOPER, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

This is an appeal from a summary judgment which dismissed appellant’s claim for damages arising from an alleged unlawful dismissal from his employment. The appellant acknowledges the previous rulings of the Court of Appeals that a contract of employment for an indefinite period may be terminated at will by either party. Production Oil Co. v. Johnson, Ky., 313 S.W.2d 411 (1958).

Appellant was discharged from his employment by appellees after appellant announced his intention to attend law school at night. As this was a summary judgment we must consider that attendance in night school was the sole reason for the discharge.

Appellant cites Monge v. Beebe Rubber Company, 114 N.H. 130, 316 A.2d 519 (1974) which placed some limitation upon the right of an employer to terminate a contract of employment at will. He argues that a trend has developed since our decision in Production Oil Company v. Johnson, supra, which prohibits employers from discharging employees for engaging in a lawful activity in which the community has an interest. See Nees v. Hocks, 536 P.2d 512 (Ore.1975).

Nees concerned the discharge of an employee for serving on a jury. The Oregon Court in Campbell v. Ford Industries, 274 Or. 243, 546 P.2d 141 (1976), distinguished the holding in Nees, where the discharge was for engaging in an activity in which there was a public community interest, from a discharge where the activity was the private concern of the employee.

Appellant contends that continued education has been established as a public policy of the United States (20 U.S.C., § 401) and that an employee may not now be discharged solely because he enters a night school.

Admittedly, recent developments in the law proscribe the right of an employer to discharge an employee for engaging in a constitutionally protected activity but no case of which we are aware has extended this proscription beyond the protection of an employee who engages in a lawful activity in which the community has a public interest. We think appellant’s attendance at night school was a private rather than a public concern.

The issue here is one of public policy which is first and foremost a matter for legislative determination. The legislature has not seen fit to establish any policy in this area, and we are not convinced that this is a proper area for the exercise of judicial activism.

The judgment is affirmed.

All concur.


author: HOWARD, Judge. WILHOIT, Judge,

text:
    Michael TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 1, 1977.
    Discretionary Review Denied June 29, 1977.
    J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant.
    Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, HOWARD and WIL-HOIT, JJ.
   HOWARD, Judge.

Michael Taylor was convicted by a Franklin Circuit Court jury of violating Ky.Rev. Stat. Ch. 515.030 (hereinafter KRS), to wit second degree robbery. Evidence was presented that Taylor along with an accomplice went twice to the home of James Maddox on the evening of February 16, 1976. On the second visit when Maddox again would not allow them to enter his home, Taylor hit him and took his wallet and house key. Taylor and Maddox were the only witnesses to testify at the trial. Maddox testified that he had known Taylor for approximately 15 years and was certain he was the person who robbed him. The appellant denied the robbery testifying that he was in a parked automobile with three other persons the entire evening.

Defense counsel tendered and requested that an instruction on presumption of innocence be given to the jury. The trial court refused the request, but gave an instruction on reasonable doubt. The appellant contends that he was substantially prejudiced by the trial court’s failure to instruct on presumption of innocence. We find no evidence to support this contention. The well established law of Kentucky has been that as long as the trial court instructs the jury on reasonable doubt an instruction on the presumption of innocence is not necessary. Mink v. Commonwealth, 228 Ky. 674, 15 S.W.2d 463 (1926); Swango v. Commonwealth, 291 Ky. 690, 165 S.W.2d 182 (1942). We find no reason to change the established law on this point.

The second error appellant asserts on appeal is that he was substantially prejudiced by the trial court’s failure to instruct on the indictment’s lack of evidentiary value. We find no merit in the appellant’s argument that failure to give such an instruction denies the defendant due process of the law.

In his closing argument the prosecutor made reference to facts which had not been placed into evidence concerning the defendant’s character. While the Kentucky court has held in several cases that such remarks are improper and allowed reversal of the case on that point, the defendant failed to object to these remarks thus not preserving them for appellate review. Lynch v. Commonwealth, Ky., 472 S.W.2d 263 (1971). Wé do not feel that the statements meet the standard of prejudice of being so apparent and great as to result in a manifest injustice as set forth in Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974) and Futrell v. Commonwealth, Ky., 437 S.W.2d 487 (1969), to allow reversal on the impropriety in the argument despite defendant’s failure to object at the proper time.

The appellant contends that no pre-sentencing investigation was made in his case as required by KRS 532.050 before he was sentenced nor was the question of probation or conditional discharge as provided in KRS 533.010 considered. It appears after examining the record that these allegations are correct. The recent Supreme Court case of Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977) (24 Ky.Law Summary 1) held that the requirements of KRS 532.050 are mandatory and not within the discretion of the trial court judge. In regard to KRS 533.010 the Supreme Court in Brewer, supra stated that this determination by the court is discretionary rather than mandatory but stated that the statute requires that probation or conditional discharge be given consideration.

Therefore, we find no error in the verdict of the jury, but we do find error in the trial court’s sentencing procedure. On the latter point, this case is reversed with directions to the Franklin Circuit Court to take appropriate action consistent with this opinion.

HAYES, J., concurs.

WILHOIT, J., dissents.

WILHOIT, Judge,

dissenting.

I respectfully dissent from so much of the opinion of the majority as holds that an instruction on the presumption of innocence when requested need not be given by the court because the instruction on reasonable doubt suffices. It strikes me as bordering on the fatuous to say that a jury must be instructed on one of the most basic principles of our criminal law but not the other. The reason given for this anomaly in Kentucky jurisprudence has heretofore been that an instruction on the presumption of innocence is “too favorable to the defendant”, Swango v. Commonwealth, 291 Ky. 690, 165 S.W.2d 182 (1942). Most of those rights embodied in the modern concept of due process are “favorable to the defendant”, but that is their very reason for existence. Not every person charged in a criminal complaint or indicted by a grand jury is guilty of a crime. In recognition of this, our system has built in certain safeguards to protect the innocent. One of these safeguards is the so-called presumption of innocence of a criminal defendant. There is certainly no such presumption in the minds of jurors about to try a case. In fact, by the time the indictment is read to the jurors, the opposite presumption is likely to be present in their minds. The law builds in the presumption of innocence, but it is of no use to the defendant if the jury is never told about it.

While an instruction on reasonable doubt does much the same thing that one on the presumption of innocence would do, I believe there is a subtle distinction between the two and one does not completely perform the job of the other. As pointed out by Wigmore, the concept of presumption of innocence “cautions the jury to put away from their minds all of the suspicion that arises from the arrest, the indictment, and the arraignment and to reach their conclusion solely from the legal evidence adduced.” He further points out that this caution is “indeed particularly needed in criminal cases”. IX J. Wigmore, Evidence § 2511 (3d ed. 1940).

I believe the Supreme Court of Kentucky would now reject the old line of cases relied upon by the majority.


author: COOPER, Judge.

text:
    Albert THOMPSON et al., Appellants, v. KENTUCKY POWER COMPANY, a corporation, Appellee.
    Court of Appeals of Kentucky.
    April 8, 1977.
    Discretionary Review Denied June 29, 1977.

      Gene A. Wilson, Louisa, for appellants.
    James E. Cooper, Gray, Woods & Cooper, Ashland, for appellee.
    Before COOPER, HOGGE and REYNOLDS, JJ.
   COOPER, Judge.

This is an appeal from an order of the Lawrence Circuit Court entered May 6, 1976, dismissing an attempted appeal to that Court from a condemnation judgment entered in the Lawrence County Court on May 14, 1967. The condemnation action was brought by the Appellee, Kentucky Power Company, against the Appellants pursuant to KRS 416.130 and 416.230, to acquire the 17/48ths outstanding interest of the Appellants in the real estate described in the judgment of condemnation.

On May 14, 1967, the Appellee, Kentucky Power Company, obtained a judgment in the Lawrence County Court as the result of a condemnation proceeding filed pursuant to KRS 416.130 and 416.230. The proceeding had been filed to acquire the outstanding one-half undivided interest in a tract of land containing 139.76 acres, more or less, owned by the heirs of David Thompson.

Thereafter, on May 24,1967, the attorney for Appellants, at that time, mailed to the Clerk of the Lawrence Circuit Court an Appeal, Statement of Appeal and Grounds for Appeal which admittedly were received by the Circuit Court Clerk, who, without filing the Appeal, transferred the documents to the office of the County Court Clerk. On May 31,1967, the Appellee, Kentucky Power Company, through counsel delivered to Lawrence Circuit Clerk an answer to the Appeal, Statement of Appeal, Grounds for Appeal and Motion to Dismiss, which documents were also delivered by the Clerk to the office of the County Court Clerk by the Circuit Court Clerk.

Thereafter, the proceeding remained dormant until August 6,1975, when counsel for Appellants, without notice to Appellee, Kentucky Power Company, filed the original Appeal with the Circuit Court Clerk of Lawrence County. At the time the foregoing action was taken more than eight (8) years had elapsed from the entry of the condemnation judgment by the Lawrence County Court.

The Defendant, Kentucky Power Company, filed a motion to dismiss the attempted appeal of Appellants which was overruled by the Court. Upon a motion to reconsider the action of the Court, the Judge then entered an order sustaining the motion to dismiss the appeal. It was from the last order that this appeal is taken.

It appears that two questions are presented to this Court: (1) was the appeal perfected by the Appellants in accordance with Kentucky Revised Statutes and the Kentucky Civil Rules, and; (2) are the Appellants barred from asserting any right to appeal for failure to revive action as provided by KRS 395.277?

A period of more than eight years had elapsed before the Appellants had made any attempt to prosecute their, case. Rule 41.02 of the Kentucky Rules of Civil Procedure provides as follows:

“For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.”

It appears that this is a matter for the discretion of the Court.

The Appellee argues that the Appellants failed to perfect their appeal as provided by KRS 416.280 and by Civil Rule 72.01. KRS 416.280(1), appeal from judgment authorizing petitioner to take possession, provides as follows:

“Within thirty days from the date of a judgment authorizing the petitioner to take possession of the land or material an appeal may be taken to the circuit court by either party or both parties by executing bond as required in other cases, and by filing with the clerk of the circuit court a certified copy of the judgment, a statement of the parties to the appeal and a statement of the grounds of appeal, which grounds shall contain any exceptions the appellant has to the award made by the commissioners.”

Rule 72.01 of the Kentucky Rules of Civil Procedure states:

“A party appealing from a county court . . . shall file with the clerk of the court to which the appeal is taken a certified copy of the judgment and the amount of costs, and cause to be executed before him, by one or more sufficient sureties to be approved by him, a bond to the effect that the appellant will satisfy and perform the judgment that shall be rendered upon the appeal”.

Strict adherence to the procedures set forth in the Statute has been required by the courts in all condemnation suits. In the case of Linn v. Bryan, 312 Ky. 203, 226 S.W.2d 959 (1950), the Court pointed out that the procedure set forth in KRS 416.280 was full and complete and must be followed by the land owner. The Court has consistently held that failure of an appellant to file an appeal bond warranted a dismissal. See Stathis v. Farmers Bank, 444 S.W.2d 112 (1969); Hargis v. Bach, Judge, 291 Ky. 766, 165 S.W.2d 565 (1942); and Caplinger v. Pritchard, 136 Ky. 349, 124 S.W. 352 (1910).

In view of the above, it appears to this Court that the appeal from the Judgment of the Lawrence County Court to the Lawrence Circuit Court was not perfected by Appellants as required by Kentucky Revised Statutes and by the Kentucky Civil Rules.

The record reflects that Albert Thompson died November 20,1974, and Joe E. Thompson, his brother, predeceased him. No action was ever taken by anyone to preserve any rights which these estates may have had. KRS 395.277, the applicable statute for revivor of an action, sets forth the parties to such revivor, and also the time limitation as follows:

“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 the case of Horsley v. Asher’s Heirs, 94 Ky. 314, 22 S.W. 434 (1893), the Court held that the order of revivor may be made at anytime within one year from the term of Court at which the order might have first been made. The Court established that the limitation on revivor runs from that time and not from the date of death of the plaintiff. Strict compliance seems to be required by the Court.

It appears to this Court that the Appellants failed to perfect their appeal as per KRS 416.280; that the Appellants and heirs of Albert and Joe E. Thompson have failed to revive their right to appeal as per KRS 395.277; that a period of eight (8) years was an unreasonable delay in prosecuting their appeal.

For the reasons stated above, the Judgment of the lower court is hereby affirmed.

All concur.