author: RAY, Justice.

text:
    The NORTHERN ASSURANCE COMPANY OF AMERICA, Appellant, v. Joe B. TAYLOR, Appellee.
    No. 8357.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 31, 1976.
    Rehearing Denied Sept. 28, 1976.

      Howard Waldrop, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellant.
    George L. McWilliams, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, Royce Weisenberger, Jr., Autrey & Weisenberger, Texarkana, Ark., for appellee.
   RAY, Justice.

This is a workmen’s compensation case. Upon trial to a jury, judgment was rendered in favor of appellee, Joe B. Taylor, against appellant, The Northern Assurance Company of America, for total and permanent benefits under the Texas Workmen’s Compensation Act. The judgment was based upon the general provisions of the Act, since the jury findings of a hernia injury under Tex.Rev.Civ.Stat.Ann. art. 8306, Sec. 12b were followed by additional jury findings that the hernia operation was successful but that appellee was totally and permanently disabled.

Appellant submits five points of error for our consideration.

Appellee Taylor was employed by Buchanan Bottling Company in 1968 and worked in various capacities involved in the delivery and sale of soft drinks bottled by his employer. On October 29,1971, while in the course of his employment, he sustained a hernia injury which was surgically repaired. He returned to work and after a period of light duty he began to perform his regular duties. In March 1973, while assisting in the delivery of drinks, appellee sustained a second hernia which was again surgically repaired. He again returned to work, successfully performed his job of lifting and setting up displays and moving bottles, until October 4,1973. On that date, he had been out in the company pickup truck setting up drink racks and had returned to the company parking lot. As he dismounted the truck and put his left foot down on the pavement, he was struck by a sharp pain. He examined himself and found a knot or bulge in his groin which was determined to be a hernia. He was again hospitalized and the hernia surgically repaired. However, on this occasion his physician attempted repair of the hernia by use of Marlex fiber screen which was sewn into the fascia because of the lack of sufficient tissue to close the herniation. Dr. Kittrell, the treating physician, testified that Mr. Taylor would never again be able to do any heavy work.

In response to special issues, the jury found the following: (1) that on October 4, 1973, Joe Taylor received an accidental injury that resulted in a hernia; (2) that the injury was received in the course and scope of his employment by Buchanan Bottling Company; (3) that the hernia appeared suddenly and immediately following the injury; (4) that such protrusion of the intestines did not exist in any degree before such injury of October 4, 1973; (5) that the injury resulting in the hernia was accompanied by pain; (6) that the operation performed as a result of the hernia was not successful; (7) that Joe Taylor was totally and permanently disabled; and (8) that the previous hernia injury of October 1971 did not contribute to his incapacity.

Appellant attacks in its first two points of error the jury finding of an accidental injury in the course and scope of employment, contending that the appellee has failed to prove an “accidental” injury traceable to a definite time, place and cause.

“There is nothing in the Workmen’s Compensation Act which requires that the injury be the result of an accident. Tex. Rev.Civ.Stat. art. 8306.”

Aetna Insurance Company v. Hart, 315 S.W.2d 169 (Tex.Civ.App. Houston-1st Dist. 1958, writ ref’d n. r. e.); Home Insurance Company v. Burkhalter, 473 S.W.2d 318 (Tex.Civ.App. Texarkana 1971, no writ). However, our Supreme Court insists that for an injury to be compensable, the injury must have resulted from an undesigned, untoward event traceable to a definite time, place and cause. Olson v. Hartford Accident and Indemnity Co., 477 S.W.2d 859 (Tex.1972).

In the instant case, the time and place of the injury are undisputed. The “cause” is rigorously disputed.

The Supreme Court stated in Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315, 318 (1955) the following:

“In determining the meaning of the definition of injury contained in the Workmen’s Compensation Statute, Vernon’s Ann.Civ.St., art. 8306, et seq., the Court should be guided by the often announced rule of construction in reference to this statute, that since it is ‘remedial’, ‘if there be any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation, same should be resolved in favor of such right.’ Jones v. Texas Indemnity Ins. Co., Tex.Civ.App.1949, 223 S.W.2d 286, 288, writ refused.”

Article 8306, Sec. 20 provides the following definition:

“Wherever the terms ‘injury’ or ‘personal injury’ are used in the Workmen’s Compensation Law of this state, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom. . . .”

The question in this case narrows itself to whether or not the hernia was in any way job related. An employee in such physical condition as to have the propensity for an injury is not covered by workmen’s compensation insurance if the injury manifests itself while he is on the job with nothing more happening. The legislature has not provided health insurance. However, if the injury is job related and there is any probative evidence of that fact, then the sufficiency of the evidence is a question for the jury. Here, the problem is one of proof of causal connection between a job connected occurrence and the employee’s disability. Was Appellee’s raising up out of the seat with the left foot down on the pavement to dismount the pickup truck a producing cause of the hernia and total and permanent incapacity?

It is clear from the evidence that Appel-lee Taylor suffered from a weakened physical condition which made him susceptible to incurring a hernia. There was sufficient evidence to conclude that appellee did not have a “hernia” as that term is defined in the workmen’s compensation act, when he got into the pickup truck on the day in question. There is evidence that as he raised up out of the seat to get out of the truck that he suffered a sharp pain. Further, there is evidence that immediately following the sharp pain appellee discovered a knot or bulge in the area of his groin which was diagnosed as a hernia.

There is no medical testimony that the raising up out of the seat in all reasonable medical probability precipitated the ensuing hernia.

A part of the duties required of Appellee Taylor was to get in and out of trucks. On October 4, 1973, appellee, while in the furtherance of his employer’s business raised up out of the seat to get out of the company pickup truck. As he made that movement, however slight the strain may have been, the appellee immediately felt a sharp pain. The hernia appeared suddenly and immediately following the injury. There was evidence that the hernia did not exist in any degree prior to the time that appellee raised up out of the seat. While there is no definite medical proof of the mechanical process by which the physical structure of the body was damaged, it is reasonable, under the circumstances of ap-pellee’s poor structural anatomy, to believe that the strain of raising up to get out of the pickup, ever so slight as it might have been, did precipitate the physical failure or harm to the employee while in the furtherment of the business of his employer. We think the circumstantial evidence was sufficient to require the trial court to submit the issue of causation to the jury for their determination of compensable injury. We also think the jury was entitled to conclude, based upon the totality of the evidence in the case, that the injury was job related. As a matter of public policy enunciated by the legislature in the workmen’s compensation act, we believe it our duty to resolve any reasonable doubt as to whether the injured employee is entitled to compensation, in favor of the employee’s right to recover. In giving liberal construction to the workmen’s compensation act, we believe that juries should be entitled to decide causation with or without medical testimony in areas of common experience. This is such a case. We conclude that the appellee made out a prima facie case for the jury without medical testimony on the issue of causation. We hold that under the facts and circumstances of this case where there was no medical testimony as to causation, that the common experience and knowledge of the jury was sufficient to determine the probability of causation. Appellant’s first and second points of error are overruled. Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.1969).

In appellant’s points of error three, four and five, it is urged that appellee’s hernia existed in some degree prior to October 4, 1973. While the physician testified that he did not feel that the first two surgeries were successful, he also testified there was no evidence of any protrusion of the intestine through the opening in the wall of the cavity in which it is contained. The appellee himself testified that he did not have any bulge or protrusion in the area of the groin in any degree before the injury of October 4, 1973, following the previous surgery. It is our opinion that the jury was justified in concluding that the hernia did not exist in any degree prior to the injury for which compensation was sought. Lewis v. American Surety Company, 143 Tex. 286, 184 S.W.2d 137, 139 (1944). Appellant’s points of error three, four and five are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Alice PLUMMER, Appellant, v. Joe B. HARRISON et al., Appellees.
    No. 8369.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 31, 1976.
    Rehearing Denied Sept. 28, 1976.

      John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellant.
    John M. Smith, Stephen B. Early, Roberts, Harbour, Smith, Harris, French & Rit-ter, Longview, for appellees.
   RAY, Justice.

This is an appeal from a summary judgment in favor of appellees. Appellant (plaintiff), Mary Alice Plummer, brought suit against appellees (defendants), Joe B. Harrison, individually and d/b/a Wynne, Jaffe & Tinsley, and Quality Store Services Corporation, seeking damages for false imprisonment. The trial court considered the motion for summary judgment filed by ap-pellees, together with the summary judgment proof and granted summary judgment in favor of appellees. Appellant has perfected her appeal and submits the following point of error for our consideration:

“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT BECAUSE THE PROOF OFFERED BY DEFENDANT FAILED TO ESTABLISH AS A MATTER OF LAW ADEQUATE LEGAL JUSTIFICATION FOR ISSUANCE OF THE SUBPOENA RESULTING IN MARY PLUMMER’S RESTRAINT; I. E. THAT NO MATERIAL FACT ISSUE EXISTS AS TO AN ESSENTIAL ELEMENT OF PLAINTIFF’S ACTION FOR DAMAGES FROM FALSE IMPRISONMENT.”

The judgment of the trial court will be affirmed.

In J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App. San Antonio 1972, writ ref’d n. r. e.), it was stated that:

“The essential elements of false imprisonment are: (1) a willful detention of the person; (2) a detention without authority of law; and (3) a detention against the consent of the party detained.”

This Court said in Tandy Corporation v. McGregor, 527 S.W.2d 246, 248 (Tex.Civ.App. Texarkana 1975, writ ref’d n. r. e.), “It is a complete defense to an action for false imprisonment that the arrest or detention was by virtue of process, legally sufficient in form, and duly issued by a court or official having jurisdiction to issue it.” The presumption is that the subpoena in this case was legally sufficient in form and duly issued by an official having jurisdiction to issue it. There was no allegation in appellant’s petition that the subpoena was not sufficient in form or was not issued by an official having jurisdiction to do so. In the instant case, it was undisputed that the subpoena was legally sufficient in form and duly issued by the court reporter (also a notary public) who was an official having jurisdiction to issue subpoenas for the taking of depositions. Tex.R.Civ.P. 201.

The evidence reveals that a subpoena was issued for Appellant Plummer, a person not a party to the proceedings for which depositions were being taken, to determine whether or not service of the subpoena directed toward Richard Gibson was proper, and accordingly, whether or not Richard Gibson was in contempt of court for refusing to appear for his deposition. The subpoena for Gibson had been served upon Mrs. Plummer who had assured the constable that she could accept the subpoena for Richard Gibson. When Gibson failed to show for his deposition, appellees requested that the court reporter, Tommy Sorrels, issue a subpoena directing Mrs. Plummer to appear for her deposition. That subpoena was issued by Sorrels, was served by the constable on Mrs. Plummer and she appeared for her deposition before the court reporter unaccompanied by the constable and gave her testimony.

Appellant Plummer attached a copy of the subpoena in question to her affidavit in opposition to the motion for summary judgment, but she made no complaint about the subpoena not being sufficient in form or that it was not duly issued by an official having jurisdiction to issue it.

The record in this case leaves unrebutted the presumption that the subpoena was valid in form and properly issued.

In view of the unquestioned and undisputed fact that Appellant Plummer was commanded to appear at the Gregg County Courthouse before a notary public and official court reporter through a subpoena issued for her appearance, we conclude that an essential element of false imprisonment was lacking. The essential lacking in the present case is “a detention without authority of law.” Assuming that she was detained against her will, without deciding that question, such was with authority of law and therefore could not constitute false imprisonment. Lilley v. Minute Market, Inc., 501 S.W.2d 688 (Tex.Civ.App. El Paso 1973, writ ref’d n. r. e.); J. C. Penney Company v. Duran, supra; Pate v. Stevens, 257 S.W.2d 763 (Tex.Civ.App. Texarkana 1953, writ dism’d); Workman v. Freeman, 155 Tex. 474, 289 S.W.2d 910 (1956).

The judgment of the trial court is affirmed.


text:
    Charles J. WISE, Appellant, v. Charles A. THOMPSON, Appellee.
    No. 8333.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 31, 1976.

      Robert Rolston, Traylor Russell Law Firm, Mt. Pleasant, for appellant.
    Donald B. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee.
   RAY, Justice.

This is a venue case. Charles A. Thompson, appellee (plaintiff), filed suit in Bowie County against Billy Hargrove and appellant (defendant), Dr. Charles J. Wise. Wise filed his plea of privilege and requested that the suit against him be transferred to Morris County, the county of his residence. The trial court overruled the plea of privilege and it is from that order that Wise has appealed. Four points of error are submitted for our consideration.

Hargrove sold Appellee Thompson a 1970 Oldsmobile Toronado for the sum of $1,700.00 and delivered Thompson an odometer mileage statement indicating that the vehicle had traveled 36,080 miles. Thompson alleged that the mileage statement was false and that he had been defrauded by Hargrove. Thompson further alleged that Wise had traded the automobile in question to Eddie Robbins Motor Company and further that the odometer had been changed without Wise having attached to the left door frame a notice in writing specifying the mileage prior to the replacement of the odometer and the date that the odometer was repaired or replaced. Appellee contended that Appellant Wise violated the provisions of 15 U.S.C.A. Sec. 1987 (1974) and that by virtue of the fraud and violation of the statute, appellee alleged that he had been damaged.

Appellee Thompson was the only witness to testify at the hearing on the plea of privilege. It is the contention of the appel-lee that Tex.Rev.Civ.Stat.Ann. art. 1995, Subds. 4 and 7 (1964) established venue in Bowie County.

Appellant’s point of error number one is sustained because appellee admits that Tex.Rev.Civ.Stat.Ann. art. 1995, Subd. 29a (1964) is not applicable.

Point of error number two is sustained. Appellee did not establish that Tex.Rev.Civ.Stat.Ann. art. 1995, Subd. 7 (1964) was applicable because he did not plead nor prove that Wise committed any fraud in Bowie County. Neither did appellee plead or prove that someone committed fraud for whose actions Appellant Wise was legally responsible.

The burden to plead and prove that the case is within one of the exceptions to the general venue statute, Article 1995, supra, rests on the plaintiff. Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896 (1922).

There is no evidence in the record that Dr. Wise had any contact with or made any representations of any kind to Appellee Thompson before Thompson purchased the vehicle. Appellee testified that Appellant Wise did not make any representations to him upon which he relied.

There was evidence that Hargrove executed an odometer mileage statement that may have been incorrect, but there is no testimony that Hargrove was in any way acting for Dr. Wise nor was there any testimony that Hargrove and Wise had ever even so much as communicated with each other. The Supreme Court in Moreland v. Leslie, 140 Tex. 170, 166 S.W.2d 902, 904 (1942), stated the following:

“It is an elementary principle that before one person can be held responsible for the acts of another, in the absence of special circumstances, it must appear that the latter was the agent of the former and was acting in the scope of his employment in doing what he did.”

See also Harrington v. North American Union Life Ins. Co., 308 S.W.2d 580 (Tex.Civ.App. Texarkana 1957, mand. overruled).

There was no pleading or proof of any agency relationship or employer-employee relationship between Hargrove and Wise. In fact, Appellee Thompson alleged that Wise sold the automobile to Eddie Robbins Motor Company. However, there was no evidence introduced to support that allegation. The record is totally devoid of any evidence to establish that Dr. Wise made any false representations in Bowie County, or that he had or authorized any person to make any false statements for him, or that he had delivered the automobile to Bowie County or had any other business transactions in Bowie County.

There was no proof that the vehicle was worth less than the $1,700.00 paid for it. Further, there was no proof that the alleged excess mileage resulted in the malfunction of the automobile. Appellant’s second point of error is sustained.

Appellant Wise states Tex.Rev.Civ.Stat. Ann. art. 1995, Subd. 4 (1964) is not applicable because: there was no evidence that appellee was damaged and further, appellee did not allege a joint cause of action against Hargrove and Wise nor did he allege a cause of action against Hargrove so intimately connected with the cause of action against Wise that they may be joined under the rule intended to avoid a multiplicity of suits.

In order to hold venue under Tex.Rev.Civ.Stat.Ann. art. 1995, Subd. 4 (1964), the plaintiff has the burden of: (1) proving that one defendant resides in the county of suit; (2) alleging in his petition a joint cause of action against the resident and non-resident defendant, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the non-resident defendant that the two may be joined together under the rule intended to avoid a multiplicity of suits; and (3) he must plead and prove that he has, in fact, a cause of action against the resident defendant. H. Molsen & Co., Inc. v. Williamson, 510 S.W.2d 366 (Tex.Civ.App. Dallas, 1974, no writ); Cemco, Inc. v. World Wide Investors, 487 S.W.2d 833 (Tex.Civ.App. Waco 1972, no writ).

In order for appellee to have proved a cause of action based upon fraud against the resident defendant, Hargrove, appellee had to prove by a preponderance of the evidence that appellee suffered actual damage as a result of relying upon the false representations of Hargrove. 1 McDonald’s, Texas Civil Practice, Sec. 4.13, pp. 465, 466; Sanders v. Select Insurance Company, 406 S.W.2d 937 (Tex.Civ.App. Dallas 1966, no writ).

We have examined the record very carefully and find no evidence of probative value that Appellee Thompson has been damaged as a result of the false representation of Hargrove. Excluding all hearsay testimony, there was no evidence that the repairs to the automobile were covered by any warranty, assuming that the necessity for repairs had occurred before five years or fifty thousand miles. There was no evidence that the automobile had more mileage on it than the mileage represented by Hargrove. The evidence that might possibly refute that fact was all hearsay testimony. There was no evidence that the automobile was worth less than the price paid for it. There was no admissible testimony to relate the repair work to any misrepresentation on the part of Hargrove. And as previously stated, assuming that the vehicle had in excess of fifty thousand miles on it, there was no evidence that the repairs were necessary as a result of any extra mileage.

Appellee Thompson did not plead a joint cause of action against the resident defendant Hargrove and Appellant Wise based upon fraud. There was no evidence that Appellant Wise sold the automobile to Har-grove or made any representations to Har-grove or had any contact with Hargrove. The only cause of action alleged against Wise is that when the odometer on the automobile was changed, Wise failed to attach to the left door frame notification specifying the mileage prior to repair or replacement of the odometer and that such action was in violation of 15 U.S.C.A. Sec. 1987. These allegations do not grow out of the same transaction as the alleged fraud committed by defendant Hargrove, nor is it in any way intimately connected with the fraud alleged against Hargrove. The cause of action stated against the resident defendant is a common law action for fraud. The cause of action alleged against Appellant Wise is a violation of a federal statute. The action against Hargrove is a separate and distinct action from that alleged against Dr. Wise. The pleadings and proof do not show a joint cause of action against Hargrove and Wise nor a cause of action against Hargrove and Wise so intimately connected that the two defendants could have been joined under the rule intended to avoid a multiplicity of suits. 1 McDonald’s, Texas Civil Practice, Sec. 4.10.2(III), pp. 441, 444; Fester v. Locke, 285 S.W.2d 239 (Tex.Civ.App. Fort Worth 1955, no writ). Appellant’s third point of error is sustained.

Appellant’s fourth point of error is as follows:

“The trial court erred in overruling Appellant’s Plea of Privilege because Appel-lee did not prove that Appellant violated the provisions of Title 15, Section 1987, United States Code Annotated.”

Appellant’s fourth point of error is overruled. “The plaintiff is not required on the venue hearing to prove a bona fide claim against the nonresident defendant who has asserted his privilege, and evidence tending to disprove such a claim is inadmissible.” 1 McDonald’s, Texas Civil Practice, Sec. 4.10-2, p. 443.

The judgment of the trial court is reversed and judgment is here rendered that the case, as it relates to Appellant Wise be transferred to Morris County.


text:
    Harold SMITH and James L. White, Appellants, v. Judy Taylor THOMPSON, Appellee.
    No. 8358.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 31, 1976.

      B. D. Moye, Old & Moye, Mt. Pleasant, for appellant.
    Ralph J. Blagg, Texarkana, for appellee.
   RAY, Justice.

This is an appeal from a temporary injunction. Appellee (plaintiff), Judy Taylor Thompson, brought suit against appellants (defendants), Harold Smith and James L. White, seeking to remove clouds from title to certain real property claimed by appellee and seeking a temporary injunction enjoining appellants from using the property, from permitting livestock on the property and from preventing appellee from repairing and building fences on the property. The trial court granted the temporary injunction and appellants have appealed from that order. Appellants submit two points of error for our consideration. The appellee has not filed a brief in this case.

Appellee Thompson alleged in her amended petition that Harold Smith and James L. White had caused a cloud to be placed on the title of a tract of land she claims in Titus County. She prayed for the removal of the cloud and for damages against appellants. She further alleged that appellants were in possession of the property. There was no allegation that appellants had obtained possession of the land by force or fraud.

The trial judge, after a hearing, granted the injunction, and by his decree appellants were ordered to restrain from “interfering with and attempting to prevent the plaintiff (Judy Taylor Thompson) from the use and enjoyment of her property . . . .” The decree further ordered that appellants be enjoined from permitting their livestock to come on the property and from preventing Appellee Thompson from repairing, rebuilding and building fences on the property-

It is clear that the trial judge, by mandatory injunction, determined the question as to who was entitled to possession of the real estate and ordered those in possession to vacate and turn over their possession to others.

“The law is clear in this state that the equitable remedy of mandatory injunction does not lie to determine the right of possession of land or to transfer the possession thereof from one person to another, where the persons in possession have not obtained possession by force or fraud.” Lewis v. Hoerster, 92 S.W.2d 537 (Tex.Civ.App. San Antonio 1936, no writ).

Since Appellee Thompson alleged that appellants were in possession and made no allegation that such possession had been obtained by force or fraud and further, since she did not show that the legal remedies available to her would not furnish adequate relief, she was not entitled to a temporary injunction.

There was no evidence that James L. White committed or threatened to commit any of the acts complained of in appellee’s petition for a temporary injunction against him.

Appellants’ points of error are sustained. The judgment of the trial court is reversed and judgment is here rendered that the temporary injunction be in all things dissolved.


author: JAMES, Justice.

text:
    LAWYERS SURETY CORPORATION and American Guarantee and Liability Insurance Company, Appellants, v. AMERICAN PUBLIC LIFE INSURANCE COMPANY and Southern National Life Insurance Company, Appellees.
    No. 5578.
    Court of Civil Appeals of Texas, Waco.
    Sept. 2, 1976.
    Rehearings Denied Sept. 23, 1976.
    Jackson, Walker, Winstead, Cantwell & Miller, James K. Peden, III, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellants.
    Paul D. Hoover, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellees.
   OPINION

JAMES, Justice.

This is a bond case. Plaintiff-Appellees are two life insurance companies, to wit, American Public Life Insurance Co. (hereinafter called “American Public”) and Southern National Life Insurance Co., (hereinafter called “Southern National”). Defendant-Appellants are two bonding companies, namely, Lawyers Surety Corporation (hereinafter called “Lawyers Surety”) and American Guarantee and Liability Insurance Co. (hereinafter called “American Guarantee”).

American Public and Southern National had a general agent in Dallas, Texas, to wit, a corporation by the name of Business Professional Services, Incorporated, (hereinafter called “BPSI”). During the years 1972 and 1973 (the exact times being more particularly hereinafter shown) American Public and Southern National were insured under a life insurance company’s blanket indemnity bond issued by American Guarantee and under two fidelity bonds issued by Lawyers Surety. The principal on the blanket bond and the two fidelity bonds was Jim Mitchell, who was president and sole stockholder of BPSI.

American Public and Southern National issue a policy known as a “Flexible Premium Deferred Annuity Plan.” On April 21, 1972, American Public and Southern National each entered into a “Managing General Agent Contract” with BPSI, which provided an arrangement wherein BPSI had the right and responsibility to solicit annuity policyholders of Appellees, collect the premiums therefor, and forward the premiums to the respective home offices of American Public and Southern National after holding out BPSI’s commissions to which it was entitled. As its compensation, BPSI was entitled to retain 60% of the initial premium of each policy sold and was required to forward 40% to the home office of the respective Plaintiff-Appellee entitled thereto. BPSI was entitled to retain 2% of all renewal premiums collected and was required to forward the remaining 98% to the respective Plaintiff-Appellee entitled thereto.

Premiums were paid by policyholders to BPSI, whose practice was to deposit these checks into BPSI’s checking account, and to remit to Appellees the respective amounts to which they were entitled. Jim Mitchell was the regular authorized signatory on the BPSI checking account, and was the principal on the bonds made by Plaintiff-Appellants American Guarantee and Lawyers Surety.

Plaintiff-Appellees American Public and Southern National brought this suit against Defendant-Appellants Lawyers Surety and American Guarantee upon the fidelity bonds above-described for monies alleged to be due them from BPSI after BPSI had collected certain renewal premiums and had failed to remit to Appellees the 98% thereof due them.

Trial was had to a jury which found:

(1)That during the period between August 15, 1972, and August 15, 1973, BPSI received the following amounts as renewal premiums from the following individuals in the respective amounts indicated (all of these individuals were policyholders of Ap-pellee American Public):

Leroy F. Washburn $1150.00
Jack C. Burton 715.00
Vernon R. Caninenberg 500.00
John F. Finnell 1340.00
Thomas L. Peterson 650.00 (and)
Marion L. Richter 220.00

(2) That in 1973, BPSI received the following amounts respectively as renewal premiums from the following individuals (all of these were policyholders of Appellee American Public):

Don R. Robinson $ 500.00
Dr. Julian Ellis Berry 2475.00 (and)
John R. Carnes 1130.00

(3) That BPSI’s failure to remit constituted acts of fraud and dishonesty (fraud and dishonesty were defined by the trial court in language used by our Supreme Court in Great American Insurance Co. v. Langdeau (Tex.1964), 379 S.W.2d 62;

(4) That BPSI’s failure to remit constituted acts of misappropriation;

(5) That BPSI’s failure to remit constituted acts of willful misapplication;

(6) That BPSI’s failure to remit constituted acts of theft;

(7) That during the period between August 15, 1972 and August 15, 1973, BPSI received the following amounts respectively from the following individuals (both of these individuals were policyholders of Ap-pellee Southern National):

Lorene Marion Kerby $250.00
Josie A. Latch 390.00

That BPSI’s failure to remit constituted acts of:

(8) Fraud and dishonesty;
(9) Misappropriation;
(10) Willful misapplication; and
(11) Theft.

Based upon and pursuant to the jury’s verdict, the trial court entered judgment in favor of Plaintiff Southern National against both Defendants jointly and severally, in the sum of $627.20; in favor of Plaintiff American Public against both Defendants jointly and severally, in the sum of $4483.50; and in addition thereto in favor of Plaintiff American Public against Defendant American Guarantee for the additional sum of $4022.90. From this judgment the Defendants American Guarantee and Lawyers Surety appeal. We affirm.

Appellants Lawyers Surety and American Guarantee each filed separate briefs.

American Guarantee asserts the following points of error:

(1) There is no evidence and no jury finding that the loss claimed by Appellees was covered by the bond issued by Appellant American Guarantee;

(2) There is no evidence, and insufficient evidence to support the jury’s answers to Special Issues Nos. 3, 4, 5, 6, 8, 9, 10, or 11; and

(3) The insurance of American Guarantee was excess as to the $627.20 awarded to Southern National and the $4483.50 awarded to American Public, jointly and severally against both Appellants, and the trial court erred in refusing to render judgment that Appellees take nothing against American Guarantee as to such amounts. We overrule all of Appellant American Guarantee’s points.

We revert to Appellant American Guarantee’s first and second points. American Guarantee issued a life insurance blanket bond indemnifying both Appellees from losses occurring by reason of fraud or dishonesty of Jim Mitchell. As stated, the principal on the fidelity bond was Jim Mitchell, president and sole stockholder of BPSI. This blanket bond was issued in 1967 and was in effect at all times material to this lawsuit. Wade Dunivent, vice president of BPSI, testified that on August 11, 1973, he discovered shortages in BPSI’s checking account, brought about by Jim Mitchell’s personal expenditures, and that the shortages had to do with premiums due Plaintiff-Appellees. BPSI had only one checking account, that being in the North Dallas Bank and Trust Co., into which were deposited premium collections not only from Appellees, but also from five or six other life insurance companies with which BPSI had agency arrangements. It was out of this checking account that Jim Mitchell was supposed to remit to Appellees their 98% of each renewal premium collected by BPSI. Prior to August 11, 1973, Mitchell had written checks out of this BPSI account to purchase a Cadillac automobile for his personal use, as well as for some other personal expenditures. It was these unauthorized expenditures of Mitchell from the BPSI account that caused Duni-vent to discover that shortages were taking place. Upon this discovery, Dunivent contacted officials of both Appellees, who in turn got in touch with their respective policyholders to see if they had paid their renewal premiums to BPSI. All of the individuals named in Special Issues Nos. 1 and 2 were policyholders of Appellee American Public; whereas the two individuals named in Special Issue No. 7 (Kerby and Latch) were policyholders of Appellee Southern National. Upon ascertaining that all these individuals had paid their renewal premiums to BPSI, Appellees requested that they furnish copies of their respective cancelled checks. This was done, and it is undisputed that each of such policyholders had paid his renewal premiums to BPSI, which payments had been deposited in the BPSI checking account in North Dallas Bank and Trust Co. In any event, the jury findings of these facts are not challenged.

At the time of trial, the BPSI checking account was closed, and there were no funds in same. Appellees were never paid any of the money due them from the renewal premiums paid by the above-named individuals.

This is a case where it is uncontra-dicted that Jim Mitchell had the funds of the two indemnitees in hand and failed to remit. It has been held that the unexplained failure of an agent to remit to his principal the premiums collected by him (the agent) and due the principal, amounted to “fraud and dishonesty” within the meaning of the indemnity bond which the agent was under. National Surety Co. v. McCutcheon (Fort Worth, Tex.Civ.App.1925), 270 S.W. 1062, writ dismissed. This is on the theory that the funds held by the agent which belong to the principal are trust funds, and that a fiduciary relationship exists between the agent and the principal. See Searle-Taylor Machinery Co., Inc. v. Brown Oil Tools, Inc. (Houston Tex.Civ.App., 1st 1974), 512 S.W.2d 335, NRE. We recognize that our Supreme Court has held that to constitute fraudulent and dishonest conduct, the employee must have some degree of intent to perform the wrongful action, and there must be the physical act plus the mental state for there to be fraud. Great American Insurance Co. v. Langdeau (Tex.1964), 379 S.W.2d 62.

In the case at bar, we have the failure by Mitchell to remit to Appellees the funds which undisputedly came into his hands, which funds without question belonged to Appellees, coupled with Mitchell’s unauthorized personal expenditures out of the bank account into which the renewal premiums were deposited. We are of the opinion and hold that this constitutes legally and factually sufficient evidence to support the jury’s findings in question.

With reference to Appellant American Guarantee’s third point: Appellant American Guarantee’s blanket bond had this provision in its Section 11: “If the Insured carries or holds any other insurance or indemnity covering any loss or losses covered by this bond, the Underwriter shall be liable hereunder only for that part of such loss or losses which is in excess of the amount recoverable or recovered from such other insurance or indemnity_”

What American Guarantee is saying is this: As to the recovery awarded Appel-lees for the period of time that both the bond of American Guarantee and the two bonds of Lawyers Surety were in force, that is, the recovery of $627.20 by Southern National and the recovery of $4483.50 by American Public, the trial court’s judgment was joint and several against both Appellants. American Guarantee says that all of this recovery (the $627.20 and the $4483.50) should have been put upon Lawyers Surety alone, and that American Guarantee should have been excused therefrom, because of the excess provision in American Guarantee’s bond. However, American Guarantee failed to affirmatively plead as a defense this excess clause before trial, and raised this defense for the first time in a motion opposing Plaintiffs’ motion for judgment. This being a policy exception, and a matter in avoidance, American Guarantee’s failure to affirmatively plead this defense constituted a waiver of its right to rely on such exception. Rule 94, Texas Rules of Civil Procedure; T.I.M.E., Inc. v. Maryland Casualty Co. (1957), 157 Tex. 121, 300 S.W.2d 68; Fort Worth Lloyds v. Purcell (Eastland, Tex.Civ.App.1975), 529 S.W.2d 644, NRE. All of Appellant American Guarantee’s points of error are overruled.

Appellant Lawyers Surety’s points of error assert that the jury verdict does not establish that Jim Mitchell, principal on Appellants’ bonds, committed any acts within the scope of Lawyers Surety’s bonds, and that there is no evidence to support the jury’s answers to Special Issues Nos. 3, 4, 5, 6, 8, 9, 10, and 11. We overrule all of Lawyers Surety’s points. Lawyers Surety’s bonds were in effect for one year, from August 15,1972 until August 15,1973. The undisputed proof showed that all of the funds for which Lawyers Surety was held liable were derived from renewal premiums which BPSI had collected and deposited in the BPSI bank account prior to August 15, 1973. The two Lawyers Surety bonds in question in which Jim Mitchell was the principal indemnified Appellees against losses through theft, misappropriation, willful misapplication, or any other act of fraud or dishonesty. Our discussion of Appellant American Guarantee’s points of error applies also to Appellant Lawyers Surety’s points.

All of Appellants’ points and contentions are overruled. Judgment of the trial court is affirmed.

AFFIRMED.


author: CORNELIUS, Justice.

text:
    Royce Dale DECKER and Sanders Tractor Company, Appellants, v. COMMERCIAL CREDIT EQUIPMENT CORPORATION, Appellee.
    No. 8390.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 7, 1976.

      Garry Lewellen, McMillan & Lewellen, Joseph A. Chandler, Chandler & Chandler, Stephenville, for appellants.
    Larry F. Amerine, Biggers, Lloyd, Big-gers, Beasley & Amerine, Dallas, for appel-lee.
   CORNELIUS, Justice.

Appellee, Commercial Credit Equipment Corporation (herein called CCEC), filed suit against Sanders Tractor Company and Royce Dale Decker to recover the balance due under a purchase security agreement executed by Decker to finance certain farm equipment he purchased from Sanders. Sanders had assigned the purchase security agreement to CCEC, and Decker later failed to make the required installments. CCEC alleged that on Decker’s default the equipment was repossessed and sold, and that by the terms of the assignment of the purchase security agreement, as well as the terms of a special financing agreement executed between Sanders and CCEC, Sanders was obligated to pay the difference between the amount realized from the sale and the amount Decker owed under the purchase security agreement. In a trial to the court judgment was rendered in CCEC’s favor for $5,012.83, together with interest and attorney’s fees.

The purchase security agreement contained two forms of assignment, either of which could be used by Sanders in assigning it to CCEC. Form number one was a “Non-recourse” form which provided that the assignment would be “. . . pursuant to the terms of agreements between CCEC and us (Sanders) and is subject to our undertakings to CCEC contained therein .” (parenthesis supplied). The special financing agreement, which was executed prior to the date of the purchase security agreement, provided in part as follows:

“On Instruments acquired by you (CCEC) hereunder in any one calendar year, we (Sanders) . . . shall repurchase, when called upon to do so, a maximum of the first three (3) repossessions of Equipment covered by such Instruments . . (parenthesis supplied)
“. . . if you should repossess or come into possession of any Equipment, we will repurchase the same immediately upon demand . . . and will pay you therefor, in cash, the total unpaid balance owing on the related Instrument . . . If we do not repurchase such repossessed Equipment . you may sell such Equipment at public or private sale . . . and we will pay you the difference between the net amount realized from such sale and the repurchase price provided for above
“. . . you may store repossessed Equipment on our premises and our possession of such Equipment shall be merely as bailee . . . .”

Assignment form number two of the purchase security agreement imposed upon Sanders essentially the same obligations as did the special financing agreement. It is not clear whether assignment form number one or number two of the purchase security agreement was used when the instrument was transferred from Sanders to CCEC, but for reasons later discussed, that uncertainty is not deemed material to the disposition of this cause.

Appellants contend (1) there is no evidence that CCEC repossessed the equipment and tendered it to Sanders whereupon Sanders failed to repurchase same; (2) there is insufficient evidence to show that the number of repossessions for the year in question was within the number for which Sanders was liable; and, (3) it was error to admit the special financing agreement into evidence. We overrule these points and affirm the judgment.

I.

Neither the purchase security agreement nor the special financing agreement defined the term “repossession.” An examination of the Statement of Facts indicates that CCEC and the dealer Sanders worked under a co-operative arrangement for the recovery of equipment when default was made in the payment therefor. Sometimes CCEC would repossess, sometimes the dealer would repossess, and on occasion the purchaser would voluntarily return the equipment to the dealer. In each case, the transaction was considered as a repossession and would be entered as such in CCEC’s log maintained for that purpose. Moreover, the special financing agreement obligated Sanders to perform if CCEC “should repossess or come into possession ” of any equipment. Considering these facts and the course of dealing between the parties, it is clear that equipment was “repossessed” for the purposes of the agreements whether the return of that equipment was effected by CCEC, by Sanders or by voluntary relinquishment of possession by the purchaser. The evidence shows that Mr. Sanders picked up the equipment in question here from Mr. Decker after default was made. Decker’s testimony, as well as the interrogatories introduced in evidence, referred to the transaction as a “repossession.” In addition, the district manager of CCEC, on being asked if CCEC tendered the property to Sanders, answered that he didn’t know if the equipment was returned voluntarily or if their “man” repossessed it, but that Sanders got the equipment back in any event. He also testified that CCEC made demand upon Sanders to pay the remaining balance on the account. Mr. Decker’s testimony and the interrogatories both referred to a “sale” of the equipment. Under all of these circumstances, we find there was evidence that the equipment was repossessed and sold, and that demand was made by CCEC of Sanders to pay the deficiency. Whether assignment form number one or number two was used becomes immaterial, because the procedures on default were essentially the same. Form number two provided specifically for the procedure outlined above, and form number one referred to the special financing agreement which in turn contained the same procedure.

II.

The special financing agreement obligated Sanders to repurchase or pay for equipment involved in “. . .a maximum of the first three (3) repossessions . . . .” Appellants contend there was insufficient evidence that less than three repossessions had been made in the year in question, and that consequently Sanders’ obligation under the agreement was not established. CCEC maintains that the limit of repossessions was an affirmative defense, and that appellants had the burden to establish their lack of liability by virtue of that provision; or that in any event, there was sufficient evidence that only one repossession was had in the year in question.

The general rule is that the burden of proving the happening of a contingency which would discharge a party from liability under a contract is upon the party who seeks to avoid liability upon that ground. 13 Tex.Jur.2d, Contracts, Sec. 390, p. 668 (1960). But the plaintiff has the burden to establish that the obligation he seeks to enforce is within the general subject matter of the contract. We believe the latter rule is applicable in this case. The reference to three repossessions is not a condition subsequent by which Sanders may be relieved of a duty; it is the very subject matter of the contract. Sanders agreed to purchase the first three repossessions. CCEC therefore had the burden to establish that the deficiency it contended Sanders was obligated to assume was the result of one of the first three repossessions. We further find that CCEC discharged that burden. Mr. Ferguson, the general manager for CCEC, testified there had only been one repossession. He so testified only after consulting the company’s repossession log, and appellants contend his testimony was hearsay and without probative force, but we find that such testimony was admissible and competent under the rules of evidence relating to past recollection. The requirements for the use of a memorandum to refresh one’s past recollection are: (1) the witness has no present recollection, but when the events were fresh a correct memorandum was made; (2) the witness must be able to guarantee the correctness of the memorandum. The usual method is for the witness to state that he remembers that when he made or saw the memorandum he knew it to be correct. But other methods of verification are permissible. He may rest his verification on a general course of business or a habit of keeping correct records. All that is required is that the correctness of the memorandum be guaranteed. It is not necessary that the memorandum have been prepared by the witness himself. 1 McCormick & Ray, Texas Evidence, Secs. 541-544, pp. 438-442 (2d ed. 1956); 23 Tex.Jur.2d, Evidence, Sec. 318, p. 459 (1961). When the witness identifies the memorandum and guarantees its correctness, both the writing and his testimony are admissible in evidence. Wood v. State, 511 S.W.2d 37 (Tex.Cr.App.1974); 1 McCormick & Ray, Texas Evidence, Sec. 547, p. 443 (2d ed. 1956). In this case, although Ferguson did not make the log himself, he testified it was made in the regular course of business by those under his direction and supervision, and he attested to its accuracy. His testimony was therefore admissible and competent under the rules above noted.

III.

Appellants then assert that it was error to admit the special financing agreement into evidence. It is contended that such agreement was inadmissible because it tended to contradict or alter the terms of the purchase security agreement. We cannot agree. The special financing agreement was executed prior to the purchase security agreement, and it anticipated and referred to those purchase security agreements which would in the future be assigned by Sanders to CCEC. The purchase security agreement in question expressly provided that it was made pursuant to the terms of agreements between the parties, and was subject to the undertakings by Sanders to CCEC which were contained in those agreements. Thus, neither the special financing agreement nor the purchase security agreement altered or contradicted the terms of the other; rather, they complemented each other. Both were admissible in evidence and could be considered together. The extrinsic evidence rule is not violated in such circumstances. 2 McCormick & Ray, Texas Evidence, See. 1611, p. 451 (2d ed. 1956). Nor was the special financing agreement inadmissible because it was signed only by Sanders. It was accepted by CCEC, and the parties acted pursuant to its terms. It thereby became a binding agreement between them. Clegg v. Brannon, 111 Tex. 367, 234 S.W. 1076 (1921); Heusinger Hardware Co. v. First National Bank, 367 S.W.2d 710 (Tex.Civ.App. Eastland 1963, writ ref’d n. r. e.); 13 Tex.Jur.2d, Contracts, Sec. 76, p. 221 (1960).

We find no reversible error. The judgment of the trial court is affirmed.


author: PER CURIAM. STEPHENSON, Justice REED, Chief Justice

text:
    COMMERCE UNION BANK et al., Appellants, v. James C. KINKADE et al., Appellees.
    Supreme Court of Kentucky.
    May 28, 1976.
    Rehearing Denied Oct. 15, 1976.
    William P. Donan, Donan & Vick, Green-ville, William A. Logan, Logan, Gordon & Logan, Richard L. Frymire, Moore, Morrow, Frymire & McGaw, Madisonville, for appellants.
    B. R. Paxton, Paxton & Kusch, Central City, Ralph W. Wible, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
   PER CURIAM.

Commerce Union Bank, Trustee of Justin Potter’s Grandchildren’s Trust; Island Creek Coal Company; and Badgett Mine Stripping Corporation appeal from a judgment of the Muhlenberg Circuit Court holding that certain mineral conveyances did not grant the right to mine the coal by the strip or open-pit method.

Commerce Union Bank, Trustee, owns the coal in controversy. Island Creek is lessee of all the coal owned by the bank, and Badgett is sublessee of the No. 11 vein or seam and all veins or seams above No. 11. Kinkade (4 acres), Harper (45 acres), and Gray and Armstrong (35 acres) own the surface over this coal.

In an action filed by the surface owners against the mineral owner and lessees, it was stipulated as follows:

“Plaintiffs do not seek a declaration that the defendants have no rights of any kind in the surface of the real estate. The only issue concerning the mineral severance in this action is whether the grant to the mineral owner precludes the mining of minerals therefrom by the strip method of mining.”

Island Creek conceives the issue to be:

“The principal question to be decided on this appeal upon the record as it now exists is whether the language included in the deeds * * * grants to the appellants, owner, lessee and sublessee, the right to mine the coal within and underlying the appellees’ property by the strip or open pit method of mining, upon the payment of the sum set forth in the severance deeds for each acre used for that purpose.”

The contested mineral severances read in part as follows:

Minerva S. Jarvis to Elijah Bassett, February 21, 1906

“ * * * has bargained and sold and by these presents does bargain sell and convey unto the party of the second part his heirs successors and assigns all the coal and the coal mining privileges in and under the following described tract or parcel of land * *
******
“The party of the second part, his heirs successors and assigns, shall take under this deed the perpetual right to mine and take from under the land hereinabove described all coal that may be in and under the same and dispose of said coal as he or they see proper and is, granted the right, to enter upon said land for the purpose of opening mines and the right to ingress and egress on and beneath the surface to and from any mine opened by the party of the second part, or his successors in title and the right to such surface space as may be necessary in mining operations including the Right of Way for and Railroad that may be necessary for the transportation of said minerals, and for such surface space as it may take for the purpose aforesaid said party of the second part or his successors in title agree to pay before taking same and the party of the first part for herself and her successors in title agrees to accept the sum of thirty dollars per acre if any of said land shall be damaged in mining operations of the party of the second part or his successors he or they shall pay the then owner of the surface of said land at the same rate per acre for the portion so damaged.”

J. F. Gish to Elijah Bassett, June 30, 1906

“ * * * have bargained and sold and by these presents, do bargain sell and convey unto the party of the second part his heirs successors and assigns all the minerals except oil, gas and water with the mining rights and privileges in and under the following described tract of land,' * *
******
“The party of the second part, his heirs successors and assigns shall take under this deed the perpetual right to mine and take from under the land hereinabove described all the minerals heretofore conveyed, and dispose of said minerals as they may see proper, and is granted the right to enter upon said land for the purpose of opening mines and the right of ingress and egress on and beneath the surface to and from any mine opened on said land by the party of the second part or his successors in title and the right to such surface space as may be necessary in mining operations including the right of way for any Railroad that may be necessary for the transportation of said minerals under and on said land and for such surface space as it may take for the purposes aforesaid said party of the second part or his successors in title agree to pay before taking same and the parties of the first part for themselves and their successors in title agree to accept, the sum of $fifty per acre if any of said land shall be damaged in mining operations of the party of the second part, or his successors he or they shall pay the then owners of the surface of said land at the same rate per acre for the portion so damaged.”

T. W. Martin to Elijah Bassett, February 23, 1906

“ * * * have bargained and sold and by these presents do bargain sell and convey unto the party of the second part his heirs successors and assigns all the coal and the coal mining privileges in and under the following described tract or parcel of land * *
******
“The party of the second part his heirs, successors and assigns, shall take under this deed the perpetual right to mine and take from under the land hereinabove described all the coal that may be in and under the same and dispose of said coal as he or they see proper, and is granted the right to enter upon said land for the purpose of opening mines and the right of ingress and egress on and beneath the surface to and from any mine opened by the party of the second part, or his successors in title and the Right to such surface space as may be necessary in mining operations including the right of way for any Railroad that may be necessary, for the transportation of said minerals and for such surface space as it may take for the purpose aforesaid. Said party of the second part or his successors in title agrees to pay before taking same and the parties of the first part, for themselves and their successors in title agree to accept the sum of thirty dollars per acre in any of said land shall be damaged in mining operations of the party of the second part or his successors, he or they shall pay the then owner of the surface of said land at the same rate per acre for the portion so damaged.”

Although the early common-law requirement of livery of seisin was inconsistent with the passage of any fee interest in minerals in place as a separate estate, it is now well settled that a conveyance may separate minerals and surface into independent legal estates and that the mineral estates so created may be dealt with as any other fee interest in land. Any deed of minerals carries with it the right to use as much of the surface as may be reasonably necessary to exploit the minerals coupled with the duty of the mineral owner to act with due care to protect the surface owner’s rights. Cf. Wiser Oil Company v. Conley, Ky., 346 S.W.2d 718 (1960).

While it is not unusual for the mineral deed to restrict even these implied rights, the trend within the industry has been to enlarge the grant to the extent that an owner may exploit the minerals on a more efficient and economical basis. Nevertheless, there must be a definite enlargement of specified mining rights in the instrument creating those rights before an owner may conduct mining operations contrary to the rights usually implied in a mineral grant. The enlargement of mining rights may be limited in character; yet at the other end of the spectrum we find some of the grants to be so extensive and all embracing that they are tantamount, in their effect, to grants of all surface rights. There seems to be no happy medium, nor is there any form of grant which may be generally said to reflect the norm of the industry. Realizing the potential fact that no two grants of mining rights may be identical, it is necessary that a proper construction of such rights be confined to a deed-to-deed interpretation of clauses in a mineral deed which grant or modify mining rights.

A mineral deed, while embracing the “reasonably necessary” right to use the surface, may further restrict mineral operations to a particular method or methods or, to be more specific, may prohibit mining operations in certain areas or by certain designated methods. If the language of the grant is sufficient to clearly delineate the rights of the surface owner and the mineral owner and thereby establish the method or procedure to be used in the recovery of the minerals, both the surface and mineral owners will be limited to the method or contractual obligation of the parties as thus determined. We have consistently upheld what has been identified as the “broad form” or “Mayo deed” and in so doing have concluded that these deeds grant such overwhelming mining rights that the mineral owner in fact has the right to use the surface of the land, part or all of it, in recovering the coal acquired by the deeds.

This court has reexamined those cases in which we have considered the “broad form” deed and has concluded that the mineral deeds involved in this proceeding, and as quoted herein, do not contain language that is so extensive as to subordinate the rights of the surface estate to the demands of the mineral estate. The language of the conveyances in each of the three deeds is such that it must be readily realized that there was no grant of rights necessary for removing the coal by the open-pit or strip method but rather the language expresses the granting of rights which are primarily those necessary in the conducting of an underground mining operation.

The answer to the question now before us is very well stated in the court’s opinion in Peabody Coal Company v. Erwin, U.S. Court of Appeals, 6th Circuit, 453 F.2d 398 (1971), wherein the court said:

“Our view of the deed in this case indicates that it grants rights impliedly incident to underground mining but that it does not indicate the intention of the parties that the mineral owner bought the right to destroy the surface, or that it was intended that the mineral owner’s rights to use the surface would be superi- or to any competing right of the surface owner.”

The judgment is affirmed.

CLAYTON, LUKOWSKY, PALMORE and STERNBERG, JJ., concur.

STEPHENSON, J., concurs in result only by separate opinion in which JONES, J., joins.

REED, C. J., concurs in result only and files separate concurring opinion.

STEPHENSON, Justice

(concurring).

I agree with the result in this case; however, I disagree with the manner in which this mineral deed is distinguished from the “broad form” mineral deeds.

This disagreement is based on an analysis of the authorities cited in Buchanan v. Watson, Ky., 290 S.W.2d 40 (1956). Here, as in Buchanan, the only feasible and economical method to mine the coal is by strip mining. Buchanan, in holding that the possessor of the mineral deed had the right to mine the coal by the method of strip mining, stated that “[t]he doctrine of stare decisis requires that we do not depart from the established rule.” A good argument could be made now that stare decisis should govern in view of later cases based on Buchanan, but in my opinion the statement was clearly erroneous in 1956 when Buchanan was decided.

Buchanan is a perfect illustration of the mischief caused by an opinion which lifts a well-established and sound principle of law out of a prior opinion and cites it as authority in complete disregard of the factual situation in the cited cases.

Part one of Buchanan decided that the mineral holder had the right to strip-mine. From the legal myths that have grown up about the “broad-form” deeds, it has been assumed that the right to strip-mine was based on the rights granted the mineral holder in the “broad-form” deeds. Not so, Buchanan reached the conclusion that the coal company had the right to strip-mine in a curious fashion without particular reference to the mining rights granted in the John C. C. Mayo deed in question. There is cited a Pennsylvania case summarizing a portion of the majority opinion holding that the owners of the mineral had a right to strip-mine and the method by which the coal was removed was incidental to the right to remove it. A portion of the dissent is also cited. Then Buchanan gives the reasoning for holding that the coal could be strip-mined at page 42:

“The deed by express language did not exclude or include this method of mining, although the proof shows that such mining methods were known and had been used prior to the date of the deed. It seems clear that the parties intended the conveyance of the coal. To deny the right to remove it by the only feasible process is to defeat the principal purpose of the deed.
“We think the Chancellor correctly decided that since the appellant had the right to remove all of the coal in, on, and under the surface of this tract, the particular method contemplated by the parties (in the absence of language prohibiting other methods) does not preclude him from utilizing the only feasible process of extracting the coal. In Rudd v. Hayden, 265 Ky. 495, 97 S.W.2d 35, it was pointed out that ‘mining’ is not limited to the sinking of a shaft but may include other methods, including strip, which may be necessary to take possession of and remove the minerals conveyed.” (Emphases added.)

Buchanan clearly holds that if strip mining is the only feasible means of removing the coal, then the mineral owner has the right to strip unless the mineral deed prohibits strip mining. In passing, it would appear that this principle fits the instant case precisely. Rudd deciding an unrelated matter defined mining, for what this definition is worth, by saying “strip” is a method of mining. It did not anywhere in the opinion base the definition on the “method which may be necessary to take possession and remove the minerals conveyed.” Hydraulic mining also is included in the definition. I am unable to grasp the reasoning that would include this as authority for holding that the owner of the mineral has the right to strip-mine the coal.

Then Buchanan proceeds to pose the next question: “Having decided that appellant is entitled to ‘strip mine’ the coal, when is he liable to the surface owner for damage for destruction of the surface or the growing timber thereon?”

It is interesting that this right is not based on any authority in this jurisdiction, so I am not impressed with the statement on stare decisis. It is on the question of damages that the “broad form” deed comes into play, and it is here that sound authorities are distorted beyond recognition.

The reasoning in Buchanan is divided into three parts.

Part one is as follows:

“Two fundamental rules for construction of deeds are set forth in McIntire v. Marian Coal Co., 190 Ky. 342, 227 S.W. 298, 299. They are:
“ ‘ * * * that a deed which grants land and certain specified rights and privileges, there being no ambiguity in the instrument, will be construed according to its terms, and enforced strictly according to its terms. But, where there is ambiguity or uncertainty in the deed, it will be construed most strongly against the grantor and in favor of the grantee.
“ ‘ * * * that the instrument shall be construed most strongly against the grantors and in favor of the grantee both upon the grant of the property and the rights and privileges specified.’
“See also Cornett v. Louisville & N. R. Co., 298 Ky. 95, 182 S.W.2d 230; Isaacs v. Inland Steel Co., 305 Ky. 777, 205 S.W.2d 681; Clements v. Morgan, 307 Ky. 496, 211 S.W.2d 164. In the Cornett and Isaacs cases, the deeds were very similar to the deed under consideration.”

Mclntire involved a “broad-form” deed, and the opinion stated, “there being no ambiguity in the instrument, will be construed according to its terms,” and held that the coal company had the right to erect and maintain houses, tipples, stores, roads or other structures used in connection with its mining lease.

Cornett, in its opinion construing a “broad-form” deed, found no ambiguity in the instrument and held that the coal company had the right to build a railroad to its mine as provided in the mineral deed.

Isaacs held that the landowner did not prove that the mining operation caused damages to a two-acre reservation in the mineral deed and for some obscure reason quoted the above principle of law from Mclntire.

Clements construed a deed containing this language, “coal and mineral privilege sold.”

I see no authority here that would be helpful in making a decision on liability for damage and have yet to see any ambiguities in the “broad form” deed.

Proceeding to part two, Buchanan states a fundamental rule:

“The rights of the respective owners of the surface and of the minerals underneath in similar deeds have been determined and declared. The owner of the mineral has the paramount right to the use of the surface in the prosecution of its business for any purpose of necessity or convenience, unless this power is exercised oppressively, "arbitrarily, wantonly, or maliciously, in which event the surface owner may recover for damages so occasioned. McIntire v. Marian Coal Co., 190 Ky. 342, 227 S.W. 298; Case v. Elk Horn Coal Corporation, 210 Ky. 700, 276 S.W. 573; Collins v. Lackey Mining Co., 219 Ky. 31, 292 S.W. 1091; Pike-Floyd Coal Co. v. Nunnery, 232 Ky. 805, 24 S.W.2d 614; Wells v. North East Coal Co., 255 Ky. 63, 72 S.W.2d 745; United Carbon Co. v. Webb, 282 Ky. 79, 137 S.W.2d 733; Treadway v. Wilson, 301 Ky. 702, 192 S.W.2d 949; Elk Horn Coal Corp. v. Johnson, Ky., 249 S.W.2d 745, second appeal Ky., 263 S.W.2d 124.” (Emphasis added.)

Mclntire involved a deep-mine operation and stated that the mineral estate is dominant and superior, but should the coal company take improvements on the surface, such taking would have to be after satisfaction or adjudged compensation for such improvements, then went on to say that the company could not use the surface for any other purpose not specifically granted by the deed or reasonably to be inferred from the nature and terms of that instrument.

Case construing a “broad form” deed stated that the coal company has the paramount use of the surface unless it exercised its power oppressively, arbitrarily, wantonly or maliciously and that the coal company had a right to locate and construct an electric transmission line over the surface for the operation of a deep mine.

Collins cited Case as to paramount use of the surface but found that the coal company had acted capriciously and not in good faith and ordered the coal company to remove homes constructed on surface owners’ land to house miners engaged in mining coal on other properties.

Pike-Floyd Coal Co., in construing a “broad form” deed cited Mclntire on construction, stated that there was no ambiguity in the deed and held the coal company liable for damages for dumping refuse from another deep-mine operation on the surface covered by the mineral deed.

Wells cited Case and Pike-Floyd. The opinion discussed the evidence of claimed damages and the elements, such as building electric power lines and other activities of a deep-mine operation clearly authorized by the specific terms of the “broad form” deed in question.

United Carbon dealt with a claim for damages during the course of drilling a gas well. The surface owners claimed a trespass, and the court citing the above cases set out the rights under a mineral deed and found that the surface owner did not plead or prove exercise of the rights in an arbitrary, oppressive, or malicious manner.

Treadway held that the mineral owner had the right to strip mine, citing Case, Pike-Floyd, and Wells.

The opinion reversed the trial court for refusal to permit the filing of an answer averring that the coal could be mined by deep-mining methods and that strip mining would be oppressive. The reversal directed the trial court to hear evidence on the issue and determined the rights of the parties accordingly.

Elkhorn Coal Corp. involved a claim for damages for subsidence of the surface. The opinion found that the right to support had been waived by the express terms of the mineral deed and reversed with the remark that if there was evidence of arbitrary, wanton, or malicious conduct, on retrial the question should be submitted to a jury.

Part two will be discussed with part three below.

“The validity and enforceability of a waiver of damages have been recognized as well as that of such grants of mining rights just discussed. The only qualification imposed in exercising these rights with respect to any given situation is that in order to be relieved of liability for damages, the rights must not be exercised arbitrarily, wantonly, or maliciously. Himler Coal Co. v. Kirk, 205 Ky. 666, 266 S.W. 355; Kentucky West Virginia Gas Co. v. Crum, 258 Ky. 508, 80 S.W.2d 537; Inland Steel Co. v. Isaacs, 283 Ky. 770, 143 S.W.2d 503; Trivette v. Consolidation Coal Co., 296 Ky. 529, 177 S.W.2d 868; Isaacs v. Inland Steel Co., 305 Ky. 777, 205 S.W.2d 681.”

In Himler the severance deed conveying the surface and reserving the minerals did not reserve any mining rights, and the opinion enunciated the basis for the dominant theory of the mineral estate. “Its reservation of the minerals in the conveyance to Barrett necessarily reserved to it and its grantees the right to dig through the surface to the minerals, to mine them in such way and in such quantities as not to destroy the support of the surface, to bring these minerals to the surface, and transport them over the surface from the opening to the market. Such rights are absolutely necessary to the reasonable enjoyment of the minerals reserved.” The opinion held that the owner of the mineral had a right to construct a railroad over the surface, but that the construction was a way of convenience, not a way of necessity. The case was reversed for a trial on the damages to the surface if the mineral owner took any of the surface for which there was not a strict necessity. The opinion does not mention any “waiver of damages.”

In Kentucky West Virginia Gas Co., involving a John C. C. Mayo mineral deed, the opinion observed that there was no effort to prove that the gas company in drilling its well and laying pipelines performed any of these operations in an arbitrary, wanton, or malicious manner. The opinion held that the surface owner could recover for destruction of crops and fencing. Also recovery was allowed for timber cut by the company which was not reasonably necessary in the exercise of its rights.

In Inland Steel, construing a “broad form” deed, the opinion stated that “the mining company had the right, as defined in its mineral deed, to discharge the water on [the surface] as might be ‘necessary or convenient.’ Such rights may not be exercised ‘arbitrarily, capriciously, oppressively or wantonly,’ but must be exercised with due regard to and consistent with the interest and rights of the owner of the surface.”

In Trivette, involving what appears to be a “broad form” deed, the opinion held that the coal company had the right to construct an electric transmission line over the surface. The opinion observed that the coal company made every effort to select a location for the line which would disturb the least quantity of timber. There was no issue of damages in the case.

Isaacs, cited in part one, stated that the coal company would not be liable for any injuries to the land which were caused by its normal mining operation.

The principle of creating separate mineral and surface estates by deed brought with it the problem of delineating the rights of the owners of the separate estates.

The theory of the mineral estate being dominant evolved to take care of a situation like that presented in Himler where no mining rights were reserved. In those situations, the installation and operation of a deep mine and its use of the surface were limited to operations and installations considered to be necessary as opposed to convenient but not necessary. In the mineral deeds reserving mining rights, the coal company was not so limited, depending on the express rights reserved or granted. Examples of rights that must be expressly granted to absolve the coal company of liability for damages are subsidence rights and the right to use timber for the mining operation. Buchanan did not discuss the “subsidence” cases, none of which have been overruled. In my opinion, it is wildly inconsistent to have a rule of law that renders a deep-mine operator liable for damages if the company removes coal pillars and causes the surface to subside in the absence of an express grant to do so, and say, as in Buchanan, that the holder of the mineral deed can completely destroy the surface by strip mining.

It is significant that each case cited in parts one, two, and three in Buchanan, with the exception of Treadway, recited principles of law applicable to the deep-mining operation involved in the case.

These sound and practical principles of law in every instance represent an effort by the court to permit the maximum enjoyment of the owner of each separate estate, consistent with the rights of the other owner. There is a thread running through all these opinions and that is the exercise of express, necessary or convenient rights by the holder of the mineral estate should not interfere more than reasonably necessary with the full enjoyment of the surface estate. By fiat Buchanan destroyed this carefully structured balance and in application of these rules to a strip-mining operation, distorts the rules out of all meaning. Buchanan and the later cases up to and including Martin v. Kentucky Oak Mining Co., Ky., 429 S.W.2d 395 (1968), pay lip service to the doctrine of separate estates, but the holdings result in the practical effect of saying that the mineral estate is not only dominant but exclusive in that no real right to enjoy is left to the surface estate. I say this for the reason that I cannot visualize an estate that has any rights reserved to it when it can be stripped and completely destroyed. Martin reasoned that since “the landowners who executed the broad form mineral deeds at the turn of the century were paid prices which substantially or in large part equaled the full value of the land (at least of the hillside land) we see nothing unfair, unjust or inequitable in construing the deeds in favor of the grantees. Certainly the fact that the surface of the land is worth much more today than it was in 1905 is not a valid reason for saying that the landowners should be paid again.” The opinion further states, “the landowner was being paid, for the mineral rights alone, practically the full value of his land.”

The logical deduction from this reasoning is that the price paid for the mineral estate determines the rights of the surface owner, and since he received full value, the concept of two separate estates vanishes and there remains only one. Buchanan did say that “the deed created two separate and distinct estates.”

In my opinion, this represents an astonishing line of reasoning. I have not found a prior case holding that the price paid for the mineral estate determined the rights of the surface estate. I have not searched for one either. If there is one, I do not want to know about it.

Parts two and three of Buchanan discuss the right to use the surface unless the right is exercised oppressively, arbitrarily, wantonly, or maliciously. This rule evolved as a standard to test “necessary and convenient” mining rights, and by any test limited the coal company to a prudent exercise of the rights so as to not give it a license to use or destroy the surface. Insofar as the installation of the deep mine and its operation is reasonable, the coal company is not answerable in damages unless it involves taking or damaging improvements as set out in Mcln-tire. See also my concurring opinion in Kentland-Elkhorn Coal Company v. Charles, Ky., 514 S.W.2d 659 (1974).

This runs through all the cases cited in Buchanan and confirms my opinion that the “waiver of damages” in the “broad form” deed is superfluous. How these principles can apply as stated in Buchanan is beyond my comprehension. If the holder of the mineral deed has a right to strip-mine and to completely destroy the surface, how can he exercise this power oppressively, arbitrarily, wantonly, or maliciously?

I am not at all impressed with the mystique that has attached to the “broad form” deeds. Expressions such as “overwhelming rights” and “grants so extensive and all embracing that it is tantamount, in its effect, to a grant of all surface right” as recited in the opinion here leave me with a feeling that indeed such a document should contain strange and wonderful language, but I find none. The “broad form” deeds in all their manifestations clearly and expressly provide for those installations and operating procedures routinely found in a deep mine. With the occasional inclusion of “subsidence rights” and more frequently the express rights to use standing timber of a certain size in the mining operation, all else is usual in a deep-mine operation. The fact that the scrivener felt some compulsion to go into tedious and minute detail in describing the degree of significance that has been ascribed to them.

After Buchanan somehow the idea evolved that the right to strip-mine was found in the “broad form” deeds. There is not a case in this jurisdiction that has found any ambiguity in the language of the “broad form” deeds. Buchanan stands for ? the proposition that the right to strip-mine, unless specifically excluded, is an incident to the ownership of the coal if that is the only feasible and economical method of re-J moval.

Treadway, decided in 1946, made a quantum leap in holding that the mineral owner had the right to strip-mine for the reason that the mineral owner has the paramount right to the use of the surface, citing Case, Pike-Floyd Coal Co., and Wells. Buchanan did not cite Treadway as authority for the right to strip-mine. Treadway based its holding on a misunderstanding of the rule in the cases cited therein. The opinion reversed the trial court for not permitting to be filed an answer alleging that stripping would be “oppressive” and sent the case back for trial on that issue. We hear no more from Treadway.

The difficulties that arise from attempting to apply rules of law lifted out of one factual situation and wedged into a completely different factual situation is well illustrated by Martin’s treatment of the opinion in Wiser Oil Company v. Conley, Ky., 346 S.W.2d 718 (1961). If Buchanan and the later cases are correct and the same reasoning applied, Wiser should have been decided differently. Martin declined to reconcile or distinguish Wiser in my opinion for the good and sufficient reason that it could not by any logical test.

In my opinion, Treadway, Buchanan and their progeny are aberrations in the law of minerals. They should be overruled, and the right to strip-mine should be limited to those mineral deeds specifically granting or reserving such right; otherwise, the consent of the surface owner should be necessary. This would once again give effect to those cases which structured the respective rights of the owners of the mineral estate and the surface estate.

JONES, J., joins in this concurring opinion.

REED, Chief Justice

(separate concurring opinion).

The opinion of Justice STEPHENSON is an excellent analysis of the development of mineral law that culminated in the unfortunate decision in Buchanan v. Watson.

My main concern is in giving a retrospective effect to the overruling of Buchanan. The reliance of parties on the law as specifically pronounced has especial significance in voluntary relationships between parties concerning property rights. I have no hesitation in applying Justice STEPHENSON’S decision prospectively. I could not, however, destroy the property rights of parties who entered into voluntary relationships in the light of plainly expressed existing law.

Strict regulation and application of our nuisance theory approach are not, in my judgment, an impingement on the existing legal expectations of parties who acquired their rights under existing laws.


author: PER CURIAM.

text:
    William L. REDMON, Appellant, v. Russell McDANIEL, Chief, Jefferson County Police Department, et al., Appellees.
    Supreme Court of Kentucky.
    Sept. 17, 1976.
    Richard J. Frockt, Louisville, for appellant.
    Eugene L. Mosley, Louisville, for appel-lees.
   PER CURIAM.

William L. Redmon contests the validity of his resignation as a member of the Jefferson County Police Force, asserting that he was denied due process. The Jefferson Circuit Court, Chancery Branch, Fifth Division, entered a summary judgment dismissing his complaint. He appeals and again questions the procedure by which his resignation was obtained. He claims that the tactics of Chief Russell McDaniel were so calculated that he was deprived of due process rights.

William L. Redmon and Bill Blair, not a party to this proceeding, were members of the Jefferson County Police Force. On the night of August 15,1974, Redmon and Blair visited a tavern in the west end of Louisville known as “Mr. D’s Inferno” where they became the instigators of a rather substantial disturbance. Police Chief McDaniel testified that a Mr. Dooley, owner of the tavern, complained to him on the morning of August 16 regarding the misconduct of Redmon and Blair: that they had in some way attempted to kill Dooley, and that Blair had his pistol drawn while in the tavern. Redmon went and got the car and pulled it around in front, and as Blair got into the car he shot into the front of the tavern, causing utter confusion among the remaining patrons and breaking a plate-glass window.

Following the Dooley complaint, McDaniel confronted Redmon and Blair separately regarding their conduct on the prior night. Both of them admitted their participation in the brawl and Redmon admitted to McDaniel personally that the story told by Dooley was exactly what happened and also that he, Redmon, was a participant in the disturbance. McDaniel testified that Red-mon indicated that it was his desire to remain in the area of police work, and for this reason he allowed Redmon to resign. McDaniel indicated that he had already determined that Redmon would be terminated if he should refuse to resign. Redmon immediately prepared and executed a formal resignation which he submitted to McDaniel on that date. The resignation stated that it was to become effective on September 15, 1974. On August 29, 1974, Redmon attempted to withdraw his resignation.

Redmon asserts upon this appeal that he was not afforded administrative and procedural due process in that his resignation of August 16 deprived him of a due process hearing before the Jefferson County Police Merit Board as required by KRS 78.445 and KRS 78.455. The hearing requested by Redmon presupposes the invalidity of his resignation which he now claims to have executed under duress. The resolution of Redmon’s appeal requires an answer to two basic inquiries: First, was the resignation the result of duress, and, second, could it be withdrawn at any time prior to the effective date?

On the first issue it is true that KRS 78.445 and 78.455 provide guidelines for the protection of police officers. However, they do not become effective barriers to an asserted unwarranted termination until such time as formal written charges have been preferred against the officer and served upon him. The jurisdiction of the Police Merit Board is also conditioned upon the filing of formal written charges. In this case the prevailing question is the vol-untariness of the resignation for if, in fact, there is a good resignation then the safeguards contained in the statutes and the Merit Board rules and regulations do not become a factor in this proceeding.

While it is true that Chief McDaniel had determined that Redmon’s misconduct required either a resignation or a termination of his services as a member of the county police force, an involuntary termination would require the filing of formal charges and a hearing before the Merit Board. However, a voluntary resignation is just as much a waiver of Redmon’s statutory right to a hearing as is the waiver of a jury trial by an accused. It becomes clearly apparent from the testimony of Chief McDaniel, which is undenied, that the chief exercised no duress upon Redmon in obtaining his resignation, particularly in view of the fact that the alternative — termination of employment — was within the scope of McDaniel’s authority.

The general rule regarding duress under such circumstances is to the effect that it is not duress to threaten to do what one has a legal right to do, nor is it duress to threaten to take any measure authorized by law and the circumstances of the case. 25 Am.Jur.2d, Duress and Undue Influence, Section 18; Bluestone v. Jones, Sup., 233 N.Y.S.2d 146 (1962).

In Pleuss v. City of Seattle, 8 Wash.App. 133, 504 P.2d 1194 (1972), a claim of duress in the obtention of a resignation was disposed of as follows:

“ * * * a mere threat to exercise a legal right made in good faith is neither duress nor coercion in law. A threat may be said to be made in good faith if made in the honest belief that valid grounds exist to justify the action threatened.”

Cf. Beatty v. United States, 168 F.Supp. 204, 144 Ct.Cl. 203 (1958).

Redmon cites as authority in support of his position Board of Education of Wolfe County v. Rose, 285 Ky. 217, 147 S.W.2d 83 (1940). We do not deem that portion of the opinion concerning duress in the obtention of a resignation to be controlling in this proceeding. The Board of Education case was one of those all-too-usual controversies between factions of a Board of Education and a school superintendent. In pending litigation the trial court had before it the question of whether certain members of the board had been duly elected. The decision of the trial court would have, in effect, determined whether the superintendent would be discharged. The dissident faction, as a double safety, filed charges against the superintendent and proceeded to have them set for a hearing. The superintendent, to escape, as he said, the embarrassment of the situation thereupon tendered his resignation. There is some indication that he resigned even though he knew that the charges against him were groundless, false, and were being used merely as a lever to force him out of office. We do not have an analogous situation in the Redmon case, for here of his own personal knowledge, Red-mon knew that the charged misconduct was an established fact and had confessed that he participated in the disturbance which resulted in the suggestion that he resign.

Redmon’s final claim that he had a right to withdraw his resignation before its effective date is without merit. The chief, in writing to counsel for Redmon, stated that the resignation had already been processed and was even then before the Police Merit Board for final action. Redmon would have this court conclude that there had been no acceptance until action could be taken by the Merit Board. While Red-mon has not hesitated to cite throughout this proceeding rules and regulations of the Merit Board, he should have taken notice of Rule V which requires that the chief make an immediate written report to the Board concerning all vacancies within his jurisdiction, whether through resignation, discharge, or other cause. The resignation itself, after its acceptance by McDaniel, was nothing other than the written notice required by the rules. There is no escape from the fact that the resignation was accepted on August 16, 1974, when it was tendered to and accepted by the chief of the county police.

In Board of Education of Wolfe County v. Rose, supra, the question was resolved in the following language:

“There is some conflict of authority as to whether the resignation of an officer effective at a future date may be withdrawn prior to the effective date after the resignation has been accepted. * * In our jurisdiction, however, it is held that such a resignation may not be withdrawn after its acceptance. * *

It is, therefore, an established fact that Redmon’s resignation had been accepted, could not be withdrawn, and as a consequence he had waived all claim to the right of a hearing before the Police Merit Board.

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    Charles E. MOREFIELD et al., Appellants, v. Leslie H. MOORE, County Court Clerk, et al., Appellees.
    Supreme Court of Kentucky.
    Sept. 17, 1976.
    Ed W. Hancock, Atty. Gen., Martin Glazer, Deputy Atty. Gen., Frankfort, James Lyon, Greenup, for appellants.
    Charles M. Daniels, J. D. Atkinson, Jr., James E. Armstrong, Greenup, for appel-lees.
   PALMORE, Justice.

The appellants Morefield and Groves brought this action to invalidate the election of several members of the city council of the City of Flatwoods and to declare their respective offices vacant. Morefield had been an unsuccessful candidate for one of the seats in question. Groves sued as a citizen and voter of the city. As a ground for relief they alleged that during the election campaign in 1974 the defendants were parties to the distribution of sample ballots that did not contain the information required by KRS 121.190(1). KRS 121.-990(10) provides that the nomination or election of any candidate who violates this requirement shall be void.

Responsive pleadings having put in issue the constitutional validity of KRS 121.190, the Attorney-General became an intervening party. KRS 418.075; CR 24.03. The appeal here is taken by Morefield, Groves and the Attorney-General from a judgment dismissing the action against the defending members of the city council upon the ground that the statute in question violates the First Amendment right of free speech.

Though other arguments challenging the right of Morefield and Groves to relief are presented in the brief for appel-lees, they were not reached by the trial court and will not be considered on this appeal. Our opinion, as was that of the trial court, is confined to the constitutional question, and on that point we find the judgment to be in error.

The trial court relied on Zwickler v. Coota, 290 F.Supp. 244 (D.C.E.D.N.Y.1968), in which a three-judge court held invalid a state law requiring that any handbill or other writing distributed in quantity concerning any candidate in connection with any election for public office or a party position, or upon constitutional propositions, bear the name and address of the printer and of the sponsoring person or organization. The Zwickler decision, in turn, relied largely on Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), in which the United States Supreme Court (three members dissenting) had declared void on its face a Los Angeles ordinance prohibiting the distribution of “any hand-bill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of the * * person who printed, wrote, compiled or manufactured the same” and of the person who caused it to be distributed.

Without disparaging Zwickler, we think its result was not required by Talley. Nor does Talley call for a similar disposition in this case. The vice of the Los Angeles ordinance, as in the instance of the licensing ordinance in Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1937), was its aimless breadth. Responsive to the argument that it was directed only against fraud, false advertisement and libel, the Talley opinion comments as follows:

“Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose. Therefore we do not pass upon the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.” (Emphasis added.)

Thus by express disclaimer Talley leaves open the question of whether a similar law restricted to a discernible purpose would transgress the First Amendment.

In United States v. Insco, 365 F.Supp. 1308 (D.C.M.D.Fla.1973), a Florida statute made it a criminal offense to publish or distribute any “writing or other statement” relating to or concerning a candidate for election to the federal Congress unless it contained the name or names of the persons or organizations responsible for it. Jack P. Insco, a Republican, and William Gunter, a Democrat, were the nominees of their respective parties for election to the House of Representatives in 1972, a presidential year. Insco was indicted for causing to be distributed a quantity of bumper stickers reading “McGOVERN-GUNTER” which did not bear the name of the sponsor. On a motion to dismiss the indictment the federal district court held that Talley did not apply and that the statute did not violate the First Amendment.

The obvious purpose of KRS 121.-190(1) is to promote honesty and fairness in the conduct of election campaigns. No one can dispute the legitimacy and desirability of such a purpose. While the right to publish anonymous material may exist to some degree, it does not seem altogether naive to assume that a fundamental objective of the First Amendment was to obviate the necessity for anonymity. Not only is it unnecessary in the conduct of public elections, it is repulsive. We have no hesitance in concluding that KRS 121.190(1) is valid.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.

      . Chapter 130, Section 191, Acts of 1974, the pertinent portion of which reads as follows:
      “All newspaper or magazine advertising, posters, circulars, billboards, handbills, sample ballots, and paid-for television or radio announcements with reference to or intended for, the support or defeat of a candidate or candidates tor nomination or election to any public office shall be identified by the words ‘paid for by’ followed by the name and address of the payer, or the committee, organization or association and its treasurer, on whose behalf the communication appears.”

      . The court referred to it as “The broad ordinance now before us,” and “This broad Los Angeles ordinance.” 362 U.S. at pages 63, 65, 80 S.Ct. at pages 538, 539.

      . Presumably the assumption was that the association with McGovern, the Democratic presidential candidate, would be the kiss of death.