text:
    Phlete A. MARTIN, III, Appellant, v. Kenneth M. BODY et ux., Appellees.
    No. 1017.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 5, 1976.

      Walter Groce, Corpus Christi, for appellant.
    F. Van Huseman, Maddin, White & Brin, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment that awarded Kenneth M. Body and wife, Betty J. Body, $100.00 as “damages” and $250.00 “as penalty attorney’s fees” because of a violation by Phlete A. Martin, III, of the Federal Consumer Credit Protection Act, commonly known as the “Truth in Lending Act”, Trial was to a jury. Phlete A. Martin, III, has perfected an appeal from portions of the judgment that was rendered.

The suit was originally instituted by Phlete A. Martin, III, hereinafter called “plaintiff”, to collect the unpaid balance on a note which was executed by Kenneth M. Body and wife, Betty J. Body, hereinafter called “defendants”. It is undisputed that defendants executed a promissory note on August 12, 1971, payable to the order of plaintiff. The note was in the principal sum of $1,288.24, and was to be paid in 35 equal monthly installments of $36.00 each, and a final installment of $28.24, commencing September 12, 1971. It provided, among other provisions, that upon default, “the entire indebtedness . . . shall be matured, at the option of the holder”, and that “matured unpaid principal and interest shall bear Ten (10%) per cent per annum from date of maturity until paid”. The note further recited that it was secured by a deed of trust upon a certain lot in Corpus Christi, Texas.

The first installment on the note in the amount of $36.00 was timely paid by defendants. No other installments or payments were made. On November 26, 1971, Mr. James A. Martin, attorney for plaintiff, wrote defendants a letter, which reads, in part:

“ . . . under the provisions of your note dated August 12, 1971 payable to Phlete A. Martin III, demand is here made for the entire balance due on said note of $1,252.24 plus interest at 10% since September 12, 1971 . . . and that no payments other than the above specified entire balance will be accepted.

Defendants did not pay such balance, or any part thereof.

Thereafter, on January 5, 1972, the land subject to the deed of trust was sold at trustee’s sale for $500.00. On January 17, 1972, plaintiff’s attorney made a written demand on appellees for the payment of $716.24, the amount of the deficiency claimed to be due on the note, plus interest at the rate of 10% thereon from the date of default. Defendants refused to pay the requested amounts.

Suit was filed on February 22, 1972 to recover the deficiency. Plaintiff, in his original petition, alleged, in substance, the facts which are set out in the three preceding paragraphs, and asked for attorney’s fees in the amount of $250.00, for the deficiency of $716.24, and for interest on the amount of the deficiency at the rate of 10% per annum from and after November 12, 1971, until paid.

Defendants, in their first amended original answer and counterclaim, their trial pleading, asserted the following defenses and claims: 1) that plaintiff violated the Federal Truth in Lending Act, and, as a consequence, they (defendants) were entitled to recover from plaintiff the “penalties as are provided in the Act,” including double the amount of any finance charge (but not less than $100.00 nor more than $1,000.00), together with reasonable attorney’s fees and costs . . . for violation of the Federal Truth in Lending Law as a setoff, up to the amount claimed by plaintiff in his original petition”; 2) that the consideration received by defendants “was money in an amount less than the face value of the alleged note”, and, therefore, was in violation of the State usury statute, for which defendants were entitled to recover from plaintiff “the applicable penalties of Article 5069 [5069-1.01 et seq.] Vernon’s Revised Civil Statutes ... including forfeiture of all principal and interest contracted for by the note, and for such reasonable attorney’s fees as would constitute a proper penalty”; and 3) that the deed of trust “be declared void as an attempt to encumber a homestead”.

Trial commenced on April 9, 1974. Special issues were submitted to the jury with regard to the “creditor” status of plaintiff. The jury, in response to those issues, found: that plaintiff regularly arranged for the extension of credit for which the payment of a finance charge was required (No. 6); and that plaintiff regularly extended credit for which payment of a finance charge was required (No. 7).

The judgment, which was signed on April 11, 1975, stated that plaintiff “is a creditor covered by the Federal Truth in Lending Act”; that plaintiff “has violated the Federal Truth in Lending Act”; and “a reasonable attorney’s fee to be awarded for the services of defendants’ attorneys is $250.00 as a penalty for violation of the Federal Truth in Lending Act”. The judgment decreed that defendants recover from plaintiff $100.00 “as damages” and $250.00 “as penalty attorney’s fees”; and for all court costs. The judgment further decreed that “all relief not herein granted is hereby specifically denied”.

The judgment, in effect, denied plaintiff a recovery on his claim for “reasonable attorney’s fees as provided in said note”, and further denied his claim for the alleged unpaid balance ($716.24) on the note. With respect to defendants’ counterclaims, the judgment, in effect, denied them any recovery on the ground of their alleged usury, and further denied any relief on their asserted claim that the deed of trust was void because it was an attempt to encumber a homestead.

When an appellant brings up an entire judgment for appellate review, an appellee is entitled to file cross-points which the court will consider. Graham & Locke Investments v. Madison, 295 S.W.2d 234 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.); Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d). But the rule is different in cases where an appellant limits his appeal to only part of a judgment that is otherwise severable. Our Supreme Court, in Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427, 430 (Tex.Sup.1945), said:

“It has been held in a number of cases, . that, if a judgment is severable, the appellant may appeal from a part only thereof, and when that is done the appellee will not be heard to complain of any matters falling wholly within the portion of the judgment not brought up for review by appellants. . . . ”

In the case at bar, the judgment that was rendered was severable. Plaintiff (appellant) has appealed only from the portions of the judgment that: 1) denied his claim for the unpaid balance on the note; and 2) that awarded defendants a recovery of $100.00 and $250.00, respectively. Defendants have not perfected an independent appeal from any part of the judgment; therefore, defendants will not now be heard to complain of any matters falling wholly within the part of the judgment which has not been brought for review by plaintiff. The issues of usury and the attempt to encumber a homestead are not before us in this appeal. Under the record, the judgment with regard to plaintiff’s claim for attorney’s fees and defendants’ claims for penalties under the Texas statute on usury and their claim that the deed of trust were void is final.

Plaintiff, in his first point, claims that there is no evidence to support the award of $250.00 as attorney’s fees. He asserts in his third point, that there is no evidence to support the award of $100.00 as damages. Defendants contend that the award of $250.00 was proper “as a penalty, whether denominated as attorney’s fees or not, since clear violation of the Truth in Lending Act and State usury laws authorize the award of liquidated damages in excess of the district court’s award”. With respect to plaintiff’s third point, defendants’ brief contains a point, entitled “Third Counterpoint”, which reads:

“Although the district court erred in awarding damages in the amount of $100.00, the error lay not awarding the liquidated amounts set by both the Truth-in-Lending Statute and the usury statute, which amounts would properly have to-talled $1,286.88.”

The briefs treat the point as a cross-point, and counsel for defendants, during oral argument, contended that the point, in effect, was a cross-point. Plaintiff has voiced no opposition to defendants’ asserted position on the point. We consider the point as a cross-point only insofar as it relates to the “Truth in Lending Act”. This is so because the judgment is severable and while plaintiff appealed from the part thereof that awarded defendants’ $100.00 “damages” because of plaintiff’s violation of the Truth in Lending Act, defendants did not appeal from that part of the judgment which denied them relief on their claim for penalties because of usury.

The Federal Truth in Lending Act is codified in 15 U.S.C.A. §§ 1601-1681t. The regulations pertaining thereto, commonly known as “Regulation Z”, are set out in 12 C.F.R., 15 U.S.C.A. § 226.

15 U.S.C.A. § 1640(a) provides:

“(a) Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
(1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney’s fee as determined by the court.”

A creditor is defined in 15 U.S.C.A. § 1602(f) as being one,

“. . . who regularly extend, or arrange for the extension of, credit for which the payment of a finance charge is required, whether in connection with loans, sales of property or services, or otherwise. . . . ”

Regulation Z, in 12 C.F.R., 15 U.S.C.A. § 226.8(b)(2), requires a written disclosure of:

“The finance charge expressed as an annual percentage rate, using the term ‘annual percentage rate,’ . . .”

It, in 12 C.F.R., 15 U.S.C.A. § 226.8(d)(1), also requires a disclosure to the borrower of:

“. . . all charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge, using the term ‘amount financed.’ . . .”

The only amount disclosed by the note is the total amount ($1,288.24) due thereunder. It does not disclose the amount of the finance charge nor designate any sum as a finance charge as required by 15 U.S.C.A. § 1605 and Regulation Z, 15 U.S.C.A. § 226.-4(a). It also fails to individually itemize all the charges which are included amount of credit but are not part of the finance charge. 15 U.S.C.A. § 1639(A)(2). There was no compliance by plaintiff with Regulation Z, 15 U.S.C.A. § 226.8(b)(2), (d)(1).

The jury, by its answers to Special Issues 6 and 7, found that plaintiff regularly arranged and extended credit for which a finance charge was required. Under 15 U.S.C.A. § 1602(f), these findings placed plaintiff under the controls of the Truth in Lending Act and Regulation Z, promulgated thereunder. Those findings, when considered along with the undisputed evidence in the case, clearly establish a violation of the Truth in Lending Act. Plaintiff falls within the definition of a “creditor”, as that term is defined in the Act. Therefore, it was correct for the trial court to award the plaintiff some amount of money, as provided for in 15 U.S.C.A. § 1640(a)(1) and (2) of the Act. We first consider the matter of attorney’s fees.

We have not been cited to any Texas decision, nor have we found such a decision, which has dealt directly with the question of reasonable attorney’s fees under Truth in Lending. There are, however, numerous federal court decisions in this area. A review of a number of these cases indicates that there must be some evidence of what constitutes reasonable attorney’s fees, either through hearings, stipulations or agreement by the parties. In Thomas v. Myers-Dickson Furniture Company, 479 F.2d 740 (5th Cir. 1973), the Court ordered the lower court to conduct a hearing to determine reasonable attorney’s fees. In Simmons v. American Budget Plan, Inc., 386 F.Supp. 194 (E.D.La.1974), the amount of attorney’s fees was agreed to by stipulation. In Jones v. Seldon’s Furniture Warehouse, Inc., 357 F.Supp. 886 (E.D.Va.1973), the attorneys were ordered to attempt to agree on the amount of attorney’s fees and if no agreement could be reached to set the matter for hearing by motion of either party. In Welmaker v. W. T. Grant Company, 365 F.Supp. 531 (N.D.Ga.1972), the Court granted an award of attorney’s fees “upon a showing by plaintiff’s counsel of the time and expense involved in prosecuting this litigation.”

The Court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), set up a 12 point test for determining what factors are necessary to ascertain reasonable attorney’s fees, where such fees are allowed by federal law. These factors are: (I) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client on the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (II) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

The question of the requirement of proof of the reasonableness of attorney’s fees in Texas was settled by the case of Great American Reserve Insurance Company v. Britton, 406 S.W.2d 901 (Tex.Sup.1966). There, the Supreme Court held that the reasonableness of attorney’s fees is a question of fact and must be supported by competent evidence. Originally a trial court could determine reasonableness without any evidence of the nature or value of attorney’s services. Johnston v. Blanks, 68 Tex. 495, 4 S.W. 557 (1887). This rule stood until 1936, when Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145 (Tex.Com.App.1936, opinion adopted) was decided. In Johnson, the Commission of Appeals stated that: “The reasonableness of attorney’s fees . . . is a question of fact to be determined and must be supported by competent evidence and may be submitted to a jury. . . . ”

The case of Johns v. Jaeb, 518 S.W.2d 857 (Tex.Civ.App.—Dallas 1974, no writ) is analogous to this case. In the Johns case, the appellant was attempting to recover attorney’s fees under Tex.Rev.Civ.Stat.Ann. Art. 5069-1.06, the Texas usury statute. It was appellant’s contention that once a pri-ma facie case of usury is established, the trial court may award attorney’s fees on its own volition, without further proof. The Court of Civil Appeals expressly rejected that contention and held that the claim for attorney’s fees must be determined by the trial court from the evidence as a matter of fact. In Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.), the court stated:

“It is established law in Texas now that in a case where there is a question as to what would constitute a reasonable attorney’s fee, such question is one of fact to be determined by the fact finder in the case, and in order to have a determination of such fact is (sic) must be supported by evidence. . .

In Bagby Land and Cattle Company v. California Livestock Commission Company, 439 F.2d 315 (5th Cir. 1971), the Court said:

“. . . although the procedure in Texas courts would apparently require proof of reasonable attorney’s fees, federal courts are not bound by this procedure in diversity actions. It was entirely permissible for the district court to fix attor-, ney’s fees on the basis of its own experience and without the aid of testimony of witnesses.”

In this case, even though we are dealing with a federal statute, we are bound by the law as determined by the Texas Supreme Court. The record shows that defendants are entitled to attorney’s fees under 15 U.S.C.A. § 1640(a)(2). But, there is no evidence as to any amount of money which would constitute a reasonable attorney’s fee. Plaintiff’s first point is sustained.

15 U.S.C.A. § 1605(a) defines “finance charge” as:

“. . . the amount of the finance charge in connection with any consumer credit transaction shall be determined as the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit, including . Interest . . .

The trial court, in the judgment, found that the interest actually charged by plaintiff to defendant “cannot be determined from the evidence and record”. We disagree. The amount of the note was $1,288.24, which amount was to be paid by defendants in monthly installments. It is admitted by all parties that plaintiff issued a check to the defendant Kenneth M. Body in the sum of $800.00 and advanced the total sum of $166.52 for defendants’ benefit. The total amount of the loan is $966.52. The difference between that sum of money and the fáce amount of the note is $321.72, which is conclusively shown by the record to be interest, as established by the following testimony of Mr. James A. Martin, plaintiff’s attorney, to wit:

“Q And how much interest did you tell him, if you told him, that you were going to charge on that loan?
A I asked—I asked Mr. Body how— what payments he could—if he could pay this amount in thirty-six months, and he said that he could. So I charged him ten percent a year for three years, and added that to the amount of the note, plus the fees that I have mentioned, plus the delinquent taxes which were paid, and then divided it into thirty-five equal payments of $28.24—of $36.00 and a final payment that would pay down to where the balance on the thirty-six month would be $28.24. I asked him if he could meet those payments and he said that he could, . . . ”

It was held in Thomas v. Myers-Dickson Furniture Company, 479 F.2d 740 (5th Cir. 1973), that under the penalty provisions of the Act, (15 U.S.C.A. § 1640), “the amount of damages to be awarded when disclosure violations are found is not discretionary: The (trial) court must award the successful litigant-consumer twice the ‘finance charge’ involved in the relevant transaction, with the minimum award being $100 and the maximum award being $1,000.” That was not done in this appeal. A “finance charge” of $321.72 is established, and defendants were entitled to a recovery of twice that amount ($643.44) under the provisions of 15 U.S.C.A. § 1640(a)(1). It was error to award them only $100.00 because of the violation of the Federal Truth in Lending Act. Plaintiff’s third point is overruled, but defendants’ cross-point, hereinabove quoted, is sustained insofar as it pertains to the proper award under the Truth in Lending Act.

The substance of plaintiff’s second point is that the trial court erred in not granting him the relief to which he was entitled under his petition and the evidence. We agree. Plaintiff sued to recover the balance due on the note after deducting therefrom the $36.00 installment, which was paid by defendants, and $500.00, the amount of money received at the trustee’s sale. We do not, however, agree that the deficiency is $716.24, as alleged by plaintiff. That sum of money represents the difference between the amount shown on the note, $1,288.24, and $536.00, which, if allowed, would permit plaintiff to recover for interest that had never accrued and was not earned. This, we will not countenance.

The deficiency on the true amount of principal owing on April 11,1975, when the judgment was signed, included earned interest at the rate 10% per annum on the principal prior to default and interest at the rate of 10% per annum on the matured principal and interest following acceleration of maturity, is the sum of $640.07. Under the record before us, plaintiff is entitled to recover that amount of money in the action that was brought by him. Plaintiff’s second point is sustained.

We also sustain defendants’ cross-point insofar as their claim to a setoff for a violation of the Truth in Lending Act is concerned. It is conclusively shown by the record that 1) plaintiff violated the Truth in Lending Act, and that the amount of the finance charge is $321.72. Defendants are entitled to recover twice the amount of the finance charge against plaintiff, which amount is to be setoff from the amount recovered by plaintiff in his action against defendants. The recovery to which plaintiff is entitled is $640.07, and defendants are entitled to a recovery of $643.44. The difference is in favor of defendants in the amount of $3.37.

We have carefully considered plaintiffs remaining point. It has no merit, and is, therefore, overruled.

As has been stated, defendants are clearly entitled to recover attorney’s fees in some amount for plaintiff’s violation of the Truth in Lending Act. However, the amount and reasonableness of attorney’s fees is a question of fact to be determined by the trier of facts as any other fact issue and must be supported by probative evidence. That was not done in this case. The issue of attorney’s fees is severable from the other issues in this case, and under Rule 434, T.R.C.P., we are authorized to sever this claim and reverse the judgment and remand that issue to the trial court for a new trial as to it only. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.Sup.1966); Insurance Company of North America v. Escalante, 484 S.W.2d 608 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.). Accordingly, that part of the judgment which awarded defendant $250.00 “as penalty attorney’s fees” is reversed, and the issue with respect to reasonable attorney’s fees for a violation of the Truth in Lending Act is severed from the remainder of the case and that issue is remanded to the trial court for a new trial. We reverse that part of the judgment which denied plaintiff any recovery on the action brought by him and render judgment that he recover $640.07 against defendants on such claim; we also modify and reform that part of the judgment which awarded defendants $100.00 against plaintiff and render judgment that defendants recover $643.44 against plaintiff, which is to be setoff against the $640.07 recovered by plaintiff; therefore, judgment is here rendered that defendants recover $3.37 from plaintiff, together with interest thereon at 6% per annum from April 11,1975, the date the trial court’s judgment was signed, until paid. That part of the judgment which awarded defendants a recovery of all costs is also reversed and judgment is here rendered that all costs in the trial court and in this Court be and the same are taxed one-half to each party. The remainder of the judgment is affirmed.

Affirmed in part, modified and reformed in part, and reversed and rendered in part.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Kenneth A. WIRTZ et ux., Appellants, v. H. N. ORR et ux., Appellees.
    No. 4818.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 5, 1976.
    Rehearing Denied Feb. 26, 1976.

      Harry W. Margolis, Weinberg, Sandolo-ski, Margolis & Staffin, Dallas, for appellants.
    Virgil E. Rogers, Gillis, Rogers & Taylor, Dallas, for appellees.
   McCLOUD, Chief Justice.

On January 27,1976, we entered an order withdrawing our previous opinions and judgment entered in this cause. The following opinion is substituted therefor.

H. N. Orr and wife, Janet Orr, sued Kenneth A. Wirtz and wife, Dorothy Wirtz, on a written contract dated June 30, 1972, for the sale and exchange of property. Defendants owned a farm in the State of Missouri and H. N. Orr owned an apartment complex in Dallas, Texas. After the exchange of properties plaintiffs filed the instant suit alleging they were due more monies out of the closing than they received, and also, there should have been more silage located on the Missouri farm than was actually there.

The jury found in favor of plaintiffs as to the shortage of funds at closing and found against plaintiffs as to the shortage of silage. Judgment was entered accordingly. Defendants, Kenneth and Dorothy Wirtz, have appealed. Default judgment was rendered against Ellis Spitz and he has not appealed.

Plaintiffs contend the June 30, 1972 contract is not ambiguous. We disagree. The contract provides that defendants (“First Parties”) will convey certain personal property by bill of sale warranting same to be free and clear of liens and encumbrances:

“. . . except an encumbrance on the Harvestore silo the principal amount of which is $9,547.16 which First parties agrees to pay and will remain to above described land when paid in full. In the event first parties fail to make payment, second parties may assume loan and the balance of said loan amount shall be deducted from the balance of original $75,-000.00 on loan for the Cass County, Mo. property.” (Emphasis added)

This is the only mention in the contract of the $75,000.00 loan. We cannot tell from the contract who was going to loan money to whom, under what terms or for what purposes.

The contract provides further:

“By way of explanation and to facilitate the exchange of these properties it is agreed and understood that second parties are in need of cash for the payment of certain amount of indebtedness. To secure said cash for second parties, first parties agree to immediately apply for a commitment for a loan of $55,000.00 or more and to process said commitment to completion prior to the date of closing. On closing the proceeds from said loan shall be distributed as follows:
1. $37,500.00 to Mrs. Dell Orr to satisfy a judgment in a divorce decree with H. N. Orr;
2. $1,400.00 to Bruce E. Staffin, to satisfy a judgment for attorney fees for Mrs. Dell Orr;
3. $1,100.00 as a fee for the loan;
4. Approximately $15,000.00 minus interest on loan to Citizens Bank of interest will go to Second parties.
By securing said loan for the benefit of second parties, first parties shall then convey the Cass County, Missouri, property subject to said loan and second parties shall assume and agree to pay said loan. Should first parties fail to secure a commitment for said loan, within a period of 30 days from the date of this agreement, then first parties shall' secure a loan from the Citizens "Bank of Windsor, Windsor, Missouri, for which they now represent that they have a commitment in the amount of $48,452.84, and said loan proceeds shall be distributed in the same manner as hereinbefore set forth for the distribution of the proceeds of the loan except there will be no distribution to second parties.”

The court properly permitted oral testimony as to the intent of the parties. Defendants showed that a prior written contract dated May 23, 1972, signed by defendants, H. N. Orr, and his former wife, Dell Rose Orr, was made contingent upon Orr’s getting a $75,000 loan on the farm or alternatively Kenneth Wirtz “carring a loan until the loan can be obtained”. This contract further provided, “The difference in equities will be carried back buy Kenneth Wirtz, on the farm.” The contract makes no mention of the purpose of the loan and fails to mention an outstanding indebtedness of $9,547.16 on the silo.

It is undisputed, however, that at the time the May 23, 1972 contract was signed, the difference in equity passing from Orr to defendants was to be $18,000. In attempting to consummate the contract, Orr applied to the Federal Land Bank for a $75,-000 loan and signed a written instrument acknowledging the breakdown of the loan as follows:

“$37,500.00 to be paid to Deliróse Orr $18,000.00 to be paid to Kenneth Wirtz $9,547.16 to be paid to Kenneth Wirtz to finance silo.
The remainder of Loan will go to H. N. Orr in cash.”

The Federal Land Bank did not make the loan and the parties continued to negotiate. A second contract form was prepared but rejected by all parties. Finally on June 30, 1972, the contract sued on by plaintiffs, was executed by H. N. Orr and defendants.

The closing of the Missouri portion of the transaction occurred first. The defendants executed a deed to the property and a bill of sale to the personalty, which conveyed the silo subject to an existing indebtedness of $9,547.16. At the same time, H. N. Orr and Janet Orr signed a note payable to defendants, secured by a deed of trust on the Missouri farm, in the sum of $65,452.84 ($75,000 less the amount of the silo mortgage).

Two days later the parties closed the transfer of the Dallas property. The title company prepared a closing statement. Orr executed the closing statement, the deed to the realty, and the bill of sale of the personalty. Orr received $7,461.07 from the title company. The closing statements on the Missouri property had not been prepared at the time of the Dallas closing. Orr refused to sign these closing statements contending he was entitled to more money.

Plaintiffs contend defendants were to assume the mortgage on the property they received and were to loan plaintiffs $75,000. Plaintiffs urge they did not “receive full consideration due from the $75,000”. They assert the property was to be exchanged without an $18,000 equity difference and Orr was not to assume the silo mortgage without additional compensation. Defendants argue plaintiffs failed to credit (1) $18,000 equity difference to defendants, (2) $4,285.11 credit allowed by defendants on plaintiffs’ debt obligation, and (3) $9,547.16 silo mortgage. Defendants point out that such credits, if allowed, offset the claims made by plaintiffs.

Defendants alleged and contend the contract relied upon by plaintiffs is ambiguous. The court submitted the following issues:

“ISSUE NO. JL
Do you find from a preponderance of the evidence that under the contract between the parties at the time of the exchange of properties, that Norman Orr was not to pay a difference of $18,000 to Kenneth A. Wirtz? (Emphasis added)
In answering the preceding Issue, you are not to take into consideration any other credits or charges other than the $18,000 inquired about.
Answer “We do” or “We do not”
Answer: We do_”
“ISSUE NO. .8
Do you find from a preponderance of the evidence that under the contract between the parties at the time of the exchange of properties that Kenneth Wirtz became obligated to Norman Orr in an amount equal to the silo mortgage when Wirtz conveyed the silo to Orr subject to the outstanding mortgage? (Emphasis added)
Answer “We do” or “We do not”
Answer: We do_”

Defendants argue that the submission of these issues constitutes reversible error because they ask the jury a question of law as to the legal effect of the contract rather than asking the jury to resolve the question of the intent of the parties. We agree. Special issues 1 and 3, as submitted, ask the jury for the construction or meaning of the contract, and in fact both issues use the phrase “under the contract”.

The court in Kemper v. Police & Firemen’s Ins., 48 S.W.2d 254 (Tex.Com.App.—1932), said:

“. . . The phrase, ‘as required by the terms of the contract,’ permitted the jury to construe the contract. The construction of a contract is a question of law for the court, and not a question of fact for a jury.”

The intent of the parties should have been submitted to the jury. In Trinity Universal Insurance Company v. Ponsford Brothers, 423 S.W.2d 571 (Tex.1968), the court stated:

“. • - A jury may not be called upon to construe the legal effect of an instrument. Knutson v. Ripson, 163 Tex. 312, 354 S.W.2d 575 (1962); Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358 (1944). The jury may, however, resolve an ambiguous intent, and the issue asked about intent as a fact issue. Skelly Oil Co. v. Archer, supra; Ellisor v. Kennedy, 128 S.W.2d 842 (Tex.Civ.App.1939, writ ref.).”

See also Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358 (1944); Schoenberg v. Forrest, 228 S.W.2d 556 (Tex.Civ.App.—San Antonio 1950, writ ref. n. r. e.); Cain v. Tennessee-Louisiana Oil Company, 382 S.W.2d 794 (Tex.Civ.App.—Tyler 1964, aff d 400 S.W.2d 318 (Tex.1966); Totten v. Houghton, 2 S.W.2d 530 (Tex.Civ.App.—Eastland 1927, no writ).

Plaintiffs contend special issues 1 and 3 are inferential rebuttal issues and defendants had the burden of requesting proper issues. We disagree. An inferential rebuttal issue, which should not be submitted under Rule 277, T.R.C.P., is one which disproves the existence of an essential element submitted in another issue. G. Hodges, Special Issue Submission in Texas 40 (1959).

Defendants properly objected to the submission of issues 1 and 3. The June 30, 1972 contract is ambiguous and the Orrs, as plaintiffs, had the burden of requesting proper issues. Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774 (Tex.1961); Neece v. A. A. A. Realty Co., 159 Tex. 403, 322 S.W.2d 597 (Tex.1959). The defendants were required to properly object to the issues, but they were not required to request the submission of the issues in substantially correct form. Rule 279, T.R.C.P.

Defendants have urged certain points which they contend entitle them to a rendition of judgment. We have considered such points and they are overruled.

Rule 434, T.R.C.P. was amended effective January 1, 1976, to permit partial remands and partial retrials when the error affects a part only of the matter in controversy and such part is clearly separable without unfairness to the parties. In our opinion, the shortage of silage issue has been correctly tried and need not be tried again. Huffington v. Upchurch, Tex., 532 S.W.2d 576, Vol. 19, Texas Supreme Court Journal, No. 17, January 24, 1976. The jury found in favor of defendants on the shortage of silage issue and plaintiffs in no way informed the trial court of their dissatisfaction with the judgment entered. They at no time filed a cross-point asserting any error. The error in the instant case affects only that part of the controversy involving the amount of money plaintiffs were to receive as a result of the transaction.

The judgment of the trial court is affirmed in all respects as to Ellis Spitz who has not appealed. We affirm that part of the judgment which denied plaintiffs any recovery for an alleged shortage of silage. The judgment is in all other respects reversed and remanded.


author: DIES, Chief Justice.

text:
    ST. PAUL INSURANCE COMPANY, Appellant, v. Gordon E. VAN HOOK, Appellee.
    No. 7795.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 5, 1976.

      James R. Lee, Beaumont, for appellant.
    Thomas J. Swearingen, Port Arthur, for appellee.
   DIES, Chief Justice.

This is a workmen’s compensation case in which a jury found plaintiff below injured in the course of his employment and awarded him $563 (as dental expenses). From the judgment which followed, the carrier brings this appeal. Its sole point is: “The County Court erred in overruling the Appellant’s [carrier’s] Motion For Instructed Verdict in that there was no evidence presented and in the alternative, insufficient evidence was presented by the Appellee that he was injured in the course of his employment.”

A point of error so framed is a “no evidence” point only. The only question we may decide under this point is whether there is in the record evidence of probative force that plaintiff was injured in the course of his employment. And in deciding this question we must consider the evidence in its most favorable light to plaintiff below. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953); McKethan v. McKethan, 477 S.W.2d 357, 358 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

Plaintiff, a seventeen year old high school student, was a part time janitor for the Y.M.C.A. The Y.M.C.A. had leased part of the old Central High School at Nederland. His supervisor was Tom Brown who had told him if he saw vandals breaking windows to “stop them when I saw it.” On February 13, 1974, he was cleaning up in the parking lot “on the other side of the gym when he saw about fifteen younger boys and three or four older boys heaving rocks through the windows.

He told them to stop; they resented it, and one of the older boys invited plaintiff to fight. At this point some older men from a boxing club which used another part of the school came up and suggested they (plaintiff and the older boy) put on the gloves to settle the dispute. Plaintiff went back to the Y.M.C.A. office to deposit his paper stick, then up to the ring where, after three rounds, he had two broken teeth.

His supervisor admitted “[h]e [plaintiff] was asked to try to eliminate it [vandalism] or keep people from vandalizing the building.”

Appellant stresses that the rock throwers were taking aim on parts of the school not leased by the Y.M.C.A., but Brown said he told plaintiff to protect the total facility. “We were trying to protect the entire school.”

One other fact perhaps should be stated. Apparently the rock throwers were members of the boxing club and known by the adults who suggested the fight.

Of course, to be compensable, an injury must be sustained in the course of employment and originate in the work of the employer. Tex.Rev.Civ.Stat. Ann. art. 8306, § 3b (1967); Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (1967). But this is a question determined by the facts of each particular case. Jones v. Casualty Reciprocal Exch., 250 S.W. 1073 (Tex.Civ.App.—Texarkana 1923, writ ref’d); Millers’ Indemnity Underwriters v. Heller, 253 S.W. 853 (Tex.Civ.App.—Austin 1923, writ ref’d); Oefinger v. Texas Employers’ Ins. Ass’n, 243 S.W.2d 469 (Tex.Civ.App.—Fort Worth 1951, writ ref’d); Employers’ Liability Assur. Corporation v. Light, 275 S.W. 685 (Tex.Civ.App.—Austin 1925, writ ref’d). The injury must have been so intimately related to the course of employment as to be a part of it. Loyd v. Texas Employers Insurance Association, 280 S.W.2d 955 (Tex.Civ.App.—Texarkana 1955, writ ref’d).

And if employee is injured while following the instructions of his employer, it is in the course and scope of his employment, even though at time of injury he is not performing his usual tasks. Texas General Indemnity Company v. Luce, 491 S.W.2d 767 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.). The place of the occurrence of the injury is important only as it throws light on whether what the employee was doing was in or about the furtherance of employer’s affairs. See 62 Tex.Jur.2d § 77 at 639 (1965).

There is certainly no question here but that the plaintiff was trying to follow his employer’s instructions. He might have chosen wiser means (such as phoning the police), but a seventeen year old boy is calculated to be influenced by the suggestion of adults to settle the dispute in the ring. Had the fight and injury occurred on the parking lot, there is little question of its compensability. To cut it off when they moved into the boxing ring would, we think be unreasonable and contrary to previous commitments to construe the Act liberally, to give effect to its purpose—the protection of employees. See Employers Mut. Liability Ins. Co. v. Konvicka, 197 F.2d 691 (5th Cir. 1952).

The jury was justified in believing the challenge to fight and the ensuing boxing match was directed against plaintiff as an employee or because of his employment. The evidence is sufficient to show a causal connection between plaintiff’s employment and his injuries. Aetna Casualty & Surety Company v. England, 212 S.W.2d 964 (Tex.Civ.App.—Beaumont 1948, no writ). See also, Phoenix Insurance Company v. Bradley, 415 S.W.2d 928 (Tex.Civ.App.—Texarkana 1967, no writ).

This point is overruled. The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. NAVY CLUB, U. S. A., ALAMO SHIP 106, Appellee.
    No. 919.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 5, 1976.
    Rehearing Denied March 4, 1976.
    Mark Perlmutter, Asst. Atty. Gen., Austin, for appellant.
    William W. Morris, Morris & Morris, San Antonio, for appellee.
   MOORE, Justice.

Appellant, Texas Alcoholic Beverage Commission, complains of the judgment of the 166th District Court of Bexar County which ordered appellant to renew the exemption certificate and beverage cartage permit of appellee, Navy Club, U. S. A. Alamo Ship, 106.

On December 4,1974, the Texas Alcoholic Beverage Commission refused and denied, pursuant to Article 666-11, Tex.Penal Aux. Laws (1974), appellee’s application for renewal of the Private Club Exemption Certificate Permit and the Beverage Cartage Permit held by appellee. On December 6, 1974, appellee appealed the Commission’s order to the District Court and on that same day the trial judge issued a stay order restraining appellant from enforcing the order of December 4, 1974. The stay order also set the case for a December 13, 1974 hearing. On December 13, 1974, appellee filed a motion for continuance which the trial court granted and on January 2, 1975, appellee filed an additional motion for continuance which the trial court granted until January 31, 1975. The case was heard on the merits on January 31, 1975, and judgment entered on February 10, 1975.

The Texas Liquor Control Act provides that all cases involving an appeal from an order of the Alcoholic Beverage Commission refusing or cancelling a permit or license “shall be tried before the Judge within ten (10) days from the filing thereof, and neither party shall be entitled to a jury.” Tex. Penal Aux.Laws, art. 666-14(c). The section of the Act dealing with private clubs also contains the same 10-day provision for appeals, Tex.Penal Aux.Laws, art. 666-15e, 7a(c). In Cook v. Spears, 524 S.W.2d 290 (Tex.1975), the Supreme Court held the 10-day provision for private club appeals to be mandatory. The Supreme Court ruled that proceedings which occur more than 10 days after the filing of the appeal in the District Court are void. Cook v. Spears, supra, at 292.

Appellee filed its appeal on December 6, 1974. The cause was not tried before the Judge until January 31, 1975. Consequently, the proceedings which occurred more than 10 days after December 6, 1974, were void.

Accordingly, the judgment of the District Court is vacated.


author: WALTER, Justice.

text:
    CENTRAL TRAILER SALES, INC., Appellant, v. James K. GAY, Appellee.
    No. 4853.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 5, 1976.
    Fred J. Feigl, Allen & Feigl, Inc., Richardson, for appellant.
    R. Lewis Nicholson, Dallas, for appellee.
   WALTER, Justice.

In this bailor-bailee controversy, James K. Gay recovered a judgment in a non-jury trial against Central Trailer Sales, Inc. and the defendant has appealed.

Central Trailer sold Gay a trailer which was returned for warranty repair work. Defendant contends it completed the repair work and Gay refused to remove the trailer from its premises before it was stolen. Gay alleged the theft was occasioned by the negligence of the defendant in failing to store the trailer, failure to fence the premises, failure to have a night watchman, and failure to chain the trailer to prevent the theft and loss of his trailer, each of which was alleged to be a proximate cause of Gay’s damages.

Defendant contends the court erred in rendering judgment for Gay because there was no evidence of negligence and the evidence is factually insufficient to support a finding that a bailment for the mutual benefit of the parties existed at the time the trailer was stolen. It also contends Gay was guilty of contributory negligence that was a proximate cause of his damages as a matter of law.

No findings of fact or conclusions of law were requested or filed.

In City of Abilene v. Meek, 311 S.W.2d 654 (Tex.Civ.App.—Eastland 1958, writ ref’d.), the court said:

“It is elementary that when the appellant contests the trial court’s judgment without requesting findings of fact or conclusions of law, we must assume that the trial court’s findings were all in support of its judgment; and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law.”

In Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), the court said:

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings.”

In Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (1951), the court said:

“The defendant-petitioner is correct in his contention that the burden of proof on the whole case, including the issue of negligence, is on the respondent bailor, but as stated in Wigmore on Evidence, 3rd Ed., § 2508, ‘Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee’s liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.’ Without prejudice to the burden of proof being at all times on the bailor, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, not existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be based on the just and common sense view that the party in possession or control of an article is more likely to know and more properly charged with explaining the damage to it or disappearance of it than the bailor who entrusted it to his care. It is evidently supported by the weight of authority in the United States, including our own state.”

In Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975), the court said:

“Trammell follows the majority trend of requiring an exculpatory explanation from a defaulting bailee in order for him to rebut the presumption of his own negligence. A mere showing by the bailee of lack of knowledge how the loss occurred is not sufficient. The general rule is that in order to rebut the presumption of his negligence, the defaulting bailee must show how the loss occurred and that it was due to some other cause than his own neglect or negligence or that, however the loss occurred, it was not due to his negligence. It has been suggested, and we agree, that this presumption against bailees for hire is justified not only because of a bailor’s often insurmountable burden of proving a bailee’s negligence, but because it tends to promote more caution in the handling and keeping of chattels entrusted to the care of bailees on parking lots, in warehouses, laundries, and other business establishments. ‘Presumptions and the Burden of Proving a Bailee’s Negligence . . . ’ 31 Tex.L. Rev. 46, 51-52 (1952); 52 Tex.L.Rev. 1329, 1362 (1974).”

William Pearson, president of Central Trailer Sales, sold the trailer to Mr. Gay. He returned the trailer for repairs which were covered by the manufacturer’s warranty. Pearson testified the company paid him for making repairs under the warranty. Gay was informed the repairs were covered by the warranty. The location where Gay’s trailer was delivered was not surrounded by a fence and there were no gates across the driveway. The parties agree the trailer was stolen.

The evidence, when viewed by the above rules, does not warrant the reviewing court to disturb the implied findings of the trial court necessary to support the judgment.

We have considered the entire record and hold the finding that the bailment was for the mutual benefit of the parties is not factually insufficient.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


text:
    E. J. PORTER, Appellant, v. Allan STRIEGLER d/b/a Rural Realty, Appellee.
    No. 4833.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 5, 1976.
    John R. Creighton, Mineral Wells, for appellant.
    Robert J. Glasgow, Stephenville, for ap-pellee.
   McCLOUD, Chief Justice.

Our former opinion and judgment dated January 15, 1976, are hereby withdrawn and the following opinion is substituted therefor.

Plaintiff, Allan Striegler, d/b/a Rural Realty, sued P. R. Brannon and wife, Beth Brannon, (hereafter referred to as Bran-non), for a real estate commission.. Plaintiff alleged Brannon sold property directly to E. J. Porter, a purchaser procured by the efforts of plaintiff, for the purpose of depriving plaintiff of his commission. Porter intervened alleging he had agreed to indemnify and hold Brannon harmless from any claim for a real estate commission in connection with the sale. The jury found that Brannon sold the property by the efforts of plaintiff to a person whose name had been registered by plaintiff with Brannon. Judgment was rendered that plaintiff recover from Porter, defendant-intervenor, a real estate commission of $12,500 less $500 theretofore paid by Porter to plaintiff. No judgment was rendered against Brannon.

Porter appeals. We reverse and render.

Plaintiff received a listing agreement on a ranch owned by Brannon. He showed the ranch to Porter. Thereafter, Porter requested plaintiff to present an offer to Brannon. The offer was refused. Porter then started negotiating directly with Bran-non. Porter testified plaintiff gave him permission to deal directly with Brannon. This was denied by plaintiff. In any event Porter and Brannon had several discussions about the property. Both plaintiff and Porter testified they discussed a real estate commission. Plaintiff stated Porter told him he thought he could work it out to where he could buy the property, and asked plaintiff if he would take $500 or a $1,000 for his commission. Plaintiff testified he told Porter he did not know if he would accept such commission. Porter testified plaintiff agreed to accept $500 in cash for his commission.

On September 4, 1973, Porter came to plaintiffs office and gave him $500 in cash. Plaintiff stated that nothing was said about the Brannon ranch at that time. Porter testified that when he handed the money to plaintiff he said “Allan, here is your money on the Brannon deal” and plaintiff replied “Thank you.” Plaintiff t.ook the $500 to his attorney’s office the next day where it was deposited in an escrow account. It can be inferred from the evidence that Porter and Brannon on September 5,1973, entered into a contract of sale which included a provision that Porter would pay all real estate commissions in connection with the sale and would indemnify and hold Brannon harmless from any claim for a real estate commission.

The sale was concluded on October 25, 1973. On December 7, 1973, demand was made of Brannon by plaintiff, through his attorney, for a $12,500 real estate commission.

The jury found that plaintiff was paid a real estate commission by Porter; that plaintiff demanded a real estate commission from Brannon; that plaintiff failed to disclose to Brannon he had been paid a real estate commission by Porter; and, the $500 paid plaintiff by Porter was not in full satisfaction of any real estate commission that might be due from Brannon. Porter contends such findings entitle him to judgment. We agree.

A real estate agent is not entitled to receive a commission from both the seller and purchaser without the full knowledge and consent of both parties. The receipt of a commission from both seller and purchaser is analogous to representation of both parties by the agent.

The court in Armstrong v. O’Brien, 83 Tex. 635, 19 S.W. 268 (1892), said:

“. . . It is well settled that a person cannot act in the capacity of agent for both the buyer and seller, and receive commissions from both; and from principles of public policy such an agent would not be allowed to recover compensation from either party, unless he should so act with the full knowledge and consent of both principals; and about this exception there is a conflict of authority. It makes no difference that the principal was not in fact injured, or that the agent intended no wrong, or that the other party acted in good faith.”

12 C.J.S. Brokers § 74, states:

“. . . Where, however, the broker is employed as the agent of either party, so that that party relies on him to secure the best bargain possible, then the general rule forbidding a secret double employment applies, supra § 43, and the broker cannot recover commissions from both parties to the transaction, unless they have knowledge that he is acting for both and consent thereto either expressly or impliedly.”

See also: Moore v. Kelley, 162 S.W. 1034 (Tex.Civ.App.—Amarillo 1914, writ ref.); Harrington v. Thomas, 1 S.W.2d 453 (Tex.Civ.App.—El Paso 1927, no writ); J. C. Penny Co. v. Grist, 13 S.W.2d 936 (Tex.Civ.App.—Beaumont 1929, writ ref.); 9 Tex. Jur.2d, Brokers, § 19; and 12 Am.Jur.2d, Brokers, § 170.

The public policy of this State is expressed in The Real Estate License Act, Article 6573a, Sec. 16(c)(4), Tex.Rev.Civ. Stat.Ann., which provides:

“The Commission . . . shall have the power to suspend or revoke any license . . . when it has been determined that: . . . the licensee has been guilty of: . . . receiving compensation from more than one party, except with the full knowledge and consent of all parties . .

Plaintiff sought in the instant suit a real estate commission from the seller on his listing agreement. The jury found that plaintiff received a real estate commission from the purchaser. The purchaser, Porter, would be liable under his indemnity agreement only if the seller, Brannon, were liable for the commission.

We think the jury finding that plaintiff failed to disclose to Brannon that he had been paid a real estate commission by Porter is an immaterial issue and not a controlling issue. However, since the jury found that plaintiff had been paid a real estate commission by the purchaser, the seller would be liable only if the seller and purchaser, with full knowledge, consented for plaintiff to receive a commission from both parties. In order for plaintiff to recover, he had the burden of establishing that both parties consented with full knowledge. 12 C.J.S. Brokers § 111, pp. 261-262; 12 Am. Jur.2d, § 250, p. 991; Lucas Realty Co. v. Franks, 224 Ky. 343, 6 S.W.2d 273 (1928).

Plaintiff neither requested nor obtained a jury finding regarding full knowledge and consent of purchaser and seller for plaintiff to receive a commission from both. Plaintiff waived this independent ground of recovery. Rule 279, T.R.C.P.; Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940).

The judgment of the trial court is reversed and rendered.


author: OSBORN, Justice.

text:
    Hope G. GONZALES, Appellant, v. Eloid GONZALES, Appellee.
    No. 6519.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 11, 1976.
    Law Offices of Abraham D. Ribak, San Antonio, for appellant.
    Eichelbaum & Sanders, John L. Sanders, Robert L. Vale, San Antonio, for appellee.
   OPINION

OSBORN, Justice.

This is an attempt to appeal from an order entered by the trial Court denying a former wife’s motion to have her former husband held in contempt and placed in jail. The parties to this appeal were divorced by an order of the trial Court which was entered in January, 1974. That order approved a property settlement agreement between the parties, granted the mother custody of three minor children and ordered the father to pay monthly child support payments. By an order entered on March 7, 1975, Eloid Gonzales was held in contempt for failure to comply with certain provisions of the divorce decree including failing to make child support payments. After his release on a writ of habeas corpus, the wife filed a motion in July, 1975, seeking to again have Eloid Gonzales held in contempt of court and returned to jail. Following a hearing in August, 1975, the trial Court denied the motion and refused to grant the relief sought. The Appellant seeks to appeal from that order.

The Appellee has filed a motion to dismiss for want of jurisdiction. We have concluded that this Court is without jurisdiction to review a contempt proceeding by appeal. Starr County v. Laughlin, 283 S.W.2d 830 (Tex.Civ.App.—San Antonio 1955, no writ); Blair v. Blair, 408 S.W.2d 257 (Tex.Civ.App.—Dallas 1966, no writ); Lamka v. Townes, 465 S.W.2d 386 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.); Martin v. Martin, 519 S.W.2d 900 (Tex.Civ.App.—Houston (1st Dist.) 1975, no writ).

The appeal is dismissed for want of jurisdiction.


author: STEPHENSON, Justice.

text:
    The CITY OF BEAUMONT, Appellant, v. George T. KINARD, et al., Appellees.
    No. 7794.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 12, 1976.

      Ken E. Wall, Jr., City Atty., Lavon Jones, Asst. City Atty., Beaumont, for appellant.
    Alan McNeill, Beaumont, for appellees.
   STEPHENSON, Justice.

This is a condemnation case in which the City of Beaumont took a 10-foot strip in fee. No part of the buildings on the remainder was located on the strip taken. Defendants are George Kinard and wife, as owners, and Electrical Machinery and Repair, Inc., as lessee. Trial was by jury and the City appeals from the judgment entered on the verdict.

The jury found the value of the strip taken to be $4,112 and then a difference of $13,302 in the before and after values of the remainder. No complaint is made on this appeal as to the value of the strip taken.

The City has a series of points complaining about the action of the trial court in allowing defendants’ witness to testify to the cost of reconstruction or restoration of improvements on the remainder land. It is urged that the admission of such testimony was error, because there is no evidence that such improvements were rendered valueless or obsolete by the taking and also because there is no evidence that the difference in the market value before and after the taking would exceed the cost of construction. It is also urged generally that there is no evidence of diminution in value to the remainder after the taking. We consider these points of error together.

Defendants’ evidence relating to these points of error is generally as follows: defendant lessee’s business is that of repairing large electric motors, and trucks are used exclusively to get the machinery in and out of this plant. There are high cranes running the length of the building on stationary steel frames, which lift the machinery off of the trucks into the truck receiving bay. The cranes then move the machinery into a work area. Large tractor-trailer trucks have to come off of a busy thoroughfare onto the premises, and negotiate a turning and backing procedure to reach the receiving bay. After the taking, there is no longer room for the large trucks to back into such bay area. The substance of the testimony objected to is that the utility of the building on the remainder is diminished because of the inability of the large trucks to reach the bay area.

The defendants’ witness testified first as to the values before and after, using the cost approach, placed such values at $101,-429 and $88,127 for a difference of $13,302. Then that witness testified: that after the taking there would no longer be room for the large trucks to back into the loading bay; that the problem could be alleviated by paving the alleyway on another side of the property, removing a sliding door, enclosing a wall, installing an overhead door, demolishing a covered area and relocating some of the machinery. The reasonable cost of those changes was $13,302; that by making those changes the property would be restored to its highest and best use.

The general rules concerning the admissibility of evidence in an eminent domain case were set out by the Supreme Court of Texas in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 198-200 (1936), as follows:

“ ‘ “The market value of property includes its value for any use to which it may be put. If, for reasons of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation.” ’
******
“ ‘The fact that the road necessitated additional fencing and establishment of an additional watering place in order to restore the land to its former usefulness and value for the purpose for which it was used by the owner was evidence of a depreciated value. The cost of additional fencing, establishing water places, and other items of like nature necessitated by the laying of the road do not constitute a measure of damage and are not recoverable as distinct items of damage, but evidence of this nature is admissible, and is entitled to be accorded its proper probative force in determining whether the tract of land as a whole has been damaged.’
* * * * * *
“ ‘In arriving at this second item of damage [depreciation in value to the remainder], the parties would have the right to introduce evidence of everything that would tend to affect the value of the land, in the estimation of a proposed purchaser, or that would tend to make it more or less valuable to the present owner, such as the shape in which the tract will be left; the increased amount of fencing, if any, that will be required; the increased expenditure made necessary to provide water; the added facilities, if any, provided for travel to the owner of the land.’
# * * * ⅜ *
“The matters of proof touching value as well as damages are so varied and multitudinous that only general rules can be formulated.
“Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value.”

In Spindor v. Lo-Vaca Gathering Company, 529 S.W.2d 63 (Tex.1975), the general rule is restated to the effect that the factors to be considered are those that would reasonably be given consideration in negotiations between a willing seller and a willing buyer. Also, this statement is made at page 65:

“The expert’s estimated cost to restore property is admissible in a condemnation trial to prove the probable diminution in fair market value of the remainder immediately after the taking, regardless of whether any actual damage occurs.”

The most recent expression from the Texas Supreme Court is in State v. Schaeffer, 530 S.W.2d 813 (Tex.1976), 19 Texas Sup.Ct. Jrl. 113, 115 (December 20, 1975).

“And depending on the particular circumstances, removal, reconstruction or replacement costs of improvements located on the property taken or the property remaining may or may not be a proper subject of inquiry.”

Apparently there are few cases in Texas passing directly upon the question before us. In one of the early cases, State v. Blair, 72 S.W.2d 927 (Tex.Civ.App.—El Paso 1934, no writ), the Court held specifically that evidence as to the cost of moving the buildings on the remainder was competent to show the extent of the depreciation in value of such remainder. The evidence in this case showed that by taking a 11.5 foot strip of land, the use of the land for a filling station and tourist camp would be interfered with; that there would not be room for cars to back into the garage used in connection with the tourist camp, and there was not room to stop an automobile by the gasoline pump. Evidence was admitted by the trial court to show the cost of moving the buildings and pump further away from the highway. See also, Bois D’Arc Island Levee Imp. Dist. No. 4 v. Shepherd, 522 S.W.2d 584 (Tex.Civ.App.—Tyler 1975, no writ).

The trial court did not err in allowing the witness to testify to the cost of the renovation work necessary to restore the remainder to its highest and best use. The testimony supports the jury findings as to values of the remainder before and after the taking. These points of error are overruled.

The City has a series of points complaining about the action of the trial court in allowing evidence which showed the rental, on the property involved in this suit, was reduced $120 per month after the taking date. The testimony of witnesses showed the land taken reduced the amount of parking space and some land was rented across the street to replace such parking space. The defendant lessee paid the same amount of rent, but $120 per month was paid by defendant owners for the land across the street, reducing their income by that amount.

The lease between the defendant owners and defendant lessee was admitted in evidence without objection. Such lease provided specifically that the rental would be reduced if a part of the premises was taken by condemnation proceedings. No witness testified that the loss of the parking area was a factor to be considered in determining the value of the remainder.

We have found no cases precisely in point. Our case is not controlled by City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951). In that case the strip of land taken provided seven head-in parking spaces in front of a grocery and liquor store. A witness for the owner testified as to the value of the land taken and the lessened value of the remainder. He stated that one of the value factors considered by him was the parking facilities, and at considerable length he testified as to the value of parking space. He stated further that the land and building would sell for a great deal less with no parking space in front of them. The Supreme Court made it clear that where the ownership of the land, improvements and business are in the same person, that evidence of loss of business by reason of the loss of parking space, was admissible, not as a separate item of damages, but as affecting the market value of the remainder.

There are other cases which stand for the proposition that rental value is admissible as bearing on the issue of market value and that reduction of rental value is admissible as bearing on the issue of diminution in value of the remainder. See City of Dallas v. Shackelford, 200 S.W.2d 869 (Tex.Civ.App.—Dallas 1946, writ ref’d n. r. e.); Reeves v. City of Dallas, 195 S.W.2d 575 (Tex.Civ.App.—Dallas 1946, writ ref’d n. r. e.); and Frankfurt v. Texas Turnpike Authority, 311 S.W.2d 261 (Tex.Civ.App.—Texarkana 1958, no writ).

We think it is clear that the value witness in this case could have taken the loss of parking space into consideration as a factor in determining the diminution in value of the remainder. The testimony does not show this to have been the case. We do not hold the admission of evidence, as to rental value of the land across the street, was error, but we affirmatively find that it was not reversible error in this case, in view of all of the evidence. Tex.R.Civ.P. 434. These points are overruled.

Affirmed.


author: McKAY, Justice. DUNAGAN, Chief Justice. MOORE, Justice.

text:
    Ed I. PALMER, II, Relator, v. Calvin GUEST, Chairman of the Executive Committee of the Democratic Party of Texas, Respondent.
    No. 955.
    Court of Civil Appeals of Texas, Tyler.
    March 1, 1976.

      Jack G. Neal, Sulphur Springs, for relator.
    Joseph Connally, Odessa, for respondent.
   PETITION FOR WRIT OF MANDAMUS

McKAY, Justice.

Relator, Ed I. Palmer, II, requests the issuance of a writ of mandamus directing respondent, Calvin Guest, Chairman of the Executive Committee of the State Democratic Party, to certify the name of relator to the Secretary of State and have his name placed on the Democratic primary ballot as a candidate for the office of District Attorney, Eighth Judicial District of Texas, an office filled by the choice of the voters of more than one county.

In response to relator’s petition, respondent filed a waiver stipulating to the facts as set out in relator’s petition and that relator’s application was in proper form and waiving service, notice, venue, appearance, and appeal. Respondent also asserts that there is no question of fraud on the part of relator involved here.

Relator attempted to file his application for placement on the ballot through the mails. Relator sent the application from Sulphur Springs, Texas, in due form by certified mail, addressed to respondent. The application was mailed on February 2, 1976, but prior to the filing deadline of 6:00 o’clock p.m. on Monday, February 2, 1976. Respondent, however, refused the application because it was not postmarked on or before February 1, 1976, the day before the filing deadline, as required by Tex. Election Code Ann. art. 13.12, sec. 2b (1969).

The pertinent portions of Tex. Election Code Ann. art. 13.12, are as follows:

“Art. 13.12 Application for place on ballot; filing; deadline; extension; withdrawal; notice
“The application to have the name of any person affiliating with any party placed on the official ballot for a general primary as a candidate for the nomination of such party for any office for which a nomination may be made at such primary shall be governed by the following:
* * * ⅜ ⅜ *
“2. The application shall be filed with the state chairman in the case of all statewide offices and all district offices which are filled by the choice of voters residing in more than one county. * * Except as provided in Paragraph 2a of this section, the application shall be filed not later than 6 p.m. on the first Monday in February (in this case February 2, 1976) preceding such primary.
* * * * * *
“2b. Except as otherwise provided in Paragraph 2a, an application filed under either Paragraph 2 or Paragraph 2a of this section shall be considered filed if sent to the proper chairman at his post-office address by registered or certified mail from any point in this state not later than the day before the filing deadline, as shown by the postmark. (Emphasis added.)
* * * * * *
“3. Within ten days after the first Monday in February, the state chairman shall file with the Secretary of State * * * a list of the names of all candidates, arranged by office for which nomination is sought, whose applications have been timely received.”

The legislative history shows that sec. 2b was added “by Acts 1969, 61st Leg., p. 2662, ch. 878, sec. 30, eff. Sept. 1, 1969.”

The only question presented here is whether Art. 5429b-2, Y.A.T.S., is applicable to the Election Code as urged by relator so as to extend the mailing deadline to February 2, 1976, thus rendering relator’s application timely filed.

The pertinent portions of Art. 5429b-2, V.A.T.S., provide:

“Sec. 1.01. This Act provides rules to aid in the construction of codes (and amendments to them) enacted pursuant to the state’s continuing statutory revision program. * * *
“Section 1.02. This Act applies to
* * * * * *
“(2) each amendment, repeal, revision, and reenactment of a code, or provision thereof, which amendment, repeal, revision, or reenactment is enacted by the 60th or a subsequent Legislature;
* * * * * *
“Sec. 2.04. * * *
“(b) If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day which is not a Saturday, Sunday, or legal holiday.” (Emphasis added.)

Since sec. 2b of Art. 13.12 is an amendment to the Election Code enacted by the 61st Legislature, we hold that Art. 5429b-2 is applicable. The last day of the period in which relator could have filed by mail fell on Sunday, February 1, 1976. Therefore, sec. 2.04(b) of Art. 5429b-2 operated to extend the deadline for filing by mail to and including Monday, February 2, 1976. In our opinion, relator timely filed his application.

We are further persuaded that Art. 5429b-2 is applicable by the fact that the day before the filing deadline is a Sunday. Therefore, it would be virtually impossible for a candidate, such as relator, to obtain a postmark on the day before the filing deadline as set out in sec. 2b of Art. 13.12. We should not interpret sec. 2b so as to convict the Legislature of foolish and futile action. State v. School Trustees of Shelby County, 150 Tex. 238, 239 S.W.2d 777 (Tex.1951).

The writ of mandamus will issue directing respondent to certify relator’s name to the Secretary of State and to have his name placed on the Democratic primary ballot as a candidate for the office of District Attorney, Eighth Judicial District of Texas, in the general primary election on May 1, 1976.

On account of the emergency, due to the near approach of the May primary, the parties hereto will be denied the right to file a motion for rehearing.

DUNAGAN, Chief Justice.

I concur in the granting of the Writ of Mandamus. In addition to the reasoning stated in the majority opinion, it would seem to me that if the legislature did not intend for Art. 5429-2, Vernon’s Rev.Civ. StatAnn. (Supp. 1975-76), to apply to the Texas Election Code, it could, and I feel would, have expressly said so. This it did not do. By not so limiting the scope of said article, it was given general application.

MOORE, Justice.

I dissent. I would sustain the ruling of the State Democratic Chairman in refusing to accept Relator’s application on the ground that it was not timely filed.

As I view the law, the Code Construction Act relied upon by the Relator is not applicable. Sec. 2.04(a) and (b) of the Act applies only in situations where some statute requires that an act be done within a specified period of time. It grants an extra day where the last day of the period falls on a Sunday. The Construction Code does not apply to the Election Code because there is nothing in the Election Code imposing a duty upon a party to perform an act within a specified period of time, the last day of which falls on a Sunday. The Election Code merely sets a deadline which the applicant may meet or not as he chooses. Consequently, I do not believe the Code Construction Act applies to the Election Code.

Another reason why I do not believe the Code Construction Act applies, lies in the fact that the Act is a general statute having general application, whereas the Election Code is a specific enactment dealing with a specific subject. If the Construction Code is applicable, it would mean that the Relator would be allowed an additional day to file his application. Thus, the provision of the two Codes would be conflicting. The rule is that where a general statute and a more detailed enactment are in conflict, the latter will prevail. 53 Tex.Jur.2d, Statutes, 186, p. 284. The Election Code is specific and detailed and states in plain language the law governing the nomination and election of officers and is therefore controlling. Sec. 1.01, Election Code.

Further, as pointed out by the Supreme Court in Nunn v. New, 148 Tex. 443, 226 S.W.2d 116 (1950): “The rule has long been firmly established in this State that where a statute requires that an act be done within a specified time, such as that specified here, the last day will not be excluded and the length of time thereby extended when that day falls on a legal holiday or Sunday, unless the statute so provides.” (Emphasis supplied.)

It appears that the majority has, by judicial construction, repealed the legislative mandate setting the deadline on applications sent by mail and has, by judicial fiat, extended the time until 12:00 p.m. on the first Monday in February.


text:
    James L. CHAPMAN v. TEXAS DEMOCRATIC EXECUTIVE COMMITTEE et al.
    No. B-5879.
    Supreme Court of Texas.
    March 22, 1976.
   Original Mandamus.

This cause came on to be heard on petition for writ of mandamus, filed herein on March 17, 1976, and said petition having been duly considered, because it is the opinion of the Court that the petition should be granted, and the writ of mandamus issue, it is, therefore, adjudged, ordered and decreed that the respondents, Texas Democratic Executive Committee, and its Chairman, Calvin Guest, be, and hereby are, directed to exclude the name of Edward I. Palmer II from the ballot of the 1976 Democratic Primary election as a candidate for District Attorney of the 8th Judicial District of Texas.

It is further adjudged, ordered and decreed that the writ of mandamus issue directing respondent, the Court of Civil Appeals for the 12th Supreme Judicial District to expunge its writ of mandamus directing that the name of Edward I. Palmer II be placed on the ballot, in its cause No. 955, Palmer v. Guest, 533 S.W.2d 484, opinion rendered March 1, 1976.

It is further ordered that respondents, Texas Democratic Executive Committee and Calvin Guest, Chairman, and the Court of Civil Appeals for the Twelfth Supreme Judicial District of Texas, in their official capacities, pay all costs expended and incurred in this Court in this proceeding; that relator, James L. Chapman, have and recover any of such costs expended and incurred by him in said Courts.

It is further ordered that no opinion will be delivered and no motion for rehearing will be entertained.


author: PALMORE, Justice.

text:
    COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney-General, Appellant, v. Louis PINEUR, Appellee.
    Supreme Court of Kentucky.
    Feb. 6, 1976.
    Ed Hancock, Atty. Gen., pro se.
    Mortimer Jeremiah Stamm, Asst. Atty. Gen., Consumer Protection Div., Frankfort, for appellant.
    John D. Sword, Sword & Floyd, Richmond, for appellee.
   PALMORE, Justice.

The judgment from which the Attorney-General brings this appeal granted to the appellee, Louis Pineur, protective relief against compliance with an “Investigative Demand” (hereinafter called the demand) issued by the Division of Consumer Protection. See KRS 367.120, 367.240 and 367.260.

The demand was directed to Pineur not as an individual but in his capacity as an officer or agent of four affiliated corporations engaged in the selling of mobile homes in this state. It was served in February of 1975, and called for the production of a great deal of information as to each of the four corporations, including, for example, copies of promotional material used since June 16, 1972; names, addresses and telephone numbers of all sales personnel, transporters, repairmen and other representatives; names, addresses and telephone numbers of all Kentucky purchasers of their mobile homes since July 1, 1973; an explanation of all warranties and service agreements used since July 1, 1973; copies of all complaints and repair requests received from customers since July 1, 1973; and copies of all correspondence received from Kentucky consumers since July 1, 1973. In addition to this documentary information, which was directed to be provided at the Madison County Court House at 1:00 P.M. on February 25,1975, the demand specified that there be made available for questioning at the same time and place a representative or representatives of the corporations familiar with all their sales, repair and delivery aspects.

Shortly after receipt of the demand Pin-eur applied to the Madison Circuit Court for relief. Cf. KRS 367.260. He asked that the demand be set aside as unreasonable, arbitrary and capricious and that the Attorney-General be enjoined from contacting his customers (meaning, presumably, customers of the four corporations) unless and until a showing of proper justification be made to the court. The complaint stated numerous factual grounds on which it alleged the demand to be unreasonable.

In his answer the Attorney-General pleaded, among other things, that the complaint did not state grounds for relief and denied most of its material factual allegations. By counterclaim he alleged that consumer-complaint letters filed with his Division of Consumer Protection pursuant to KRS 367.150(6) established reason on his part to believe that it would be in the public interest for an investigation to be made to ascertain whether the four corporations had engaged or were about to engage in acts or practices made unlawful by KRS 367.110 to 367.300, and specifically by KRS 367.170, which prohibits “false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” The counterclaim concluded with a demand that Pineur be enjoined to comply with the investigative demand. Cf. KRS 367.290.

In support of a subsequent motion for summary judgment the Attorney-General listed complaints received from 38 customers of the various corporations in question and filed the affidavits of several disgruntled customers and one former salesman.

The judgment from which this appeal is taken was entered on the pleadings and motions. It is bottomed on the premise that an investigative demand authorized by KRS 367.240 must on its face give notice to the recipient “of the charge leveled against him or the claim made against him before he is required to answer. Certainly, if no charge or claim is made against him, that is, if the Attorney General does not entertain a reasonable belief upon which the ‘Investigative Demand’ is predicated, the Demand should not have been issued. The Demand should show on its face these minimal requirements. It does not . . . . There is . . .no method either by pleading or by operation of law where the allegations of a supporting affidavit in a Motion for Summary Judgment could be made or considered a part of the original Investigative Demand.”

As stated by the appellee, the question is (emphasis added): “Whether the Attorney-General in issuing an investigative demand pursuant to KRS 367.240(1) is required to make a showing on the face of such demand of the reasonable grounds for its issuance so that the courts are not denied their power of judicial review and to meet the requirements of due process and fundamental fairness.”

That being the issue adjudicated, and the only question before this court, we do not reach the advisory portion of the judgment in which the trial court indicated its opinion that the demand was overly broad. Our determination is limited to whether there is either a statutory or constitutional requirement that a demand authorized by KRS 367.240 recite on its face the reason or grounds for its issuance, and the answer is no.

KRS 367.240(1) authorizes the Attorney-General to execute and cause an investigative demand to be served in either one of two instances, as follows:

(a) When he “has reason to believe that a person has engaged in, is engaged in, or is about to engage in any act or practice declared to be unlawful by KRS 367.110 to 367.300,” or
(b) When “he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in or is about to engage in, any act or practice” made unlawful by the aforementioned statutes.

Whereas, however, the statute predicates the issuance of a demand on one of these two conditions precedent, nowhere does it say or imply that the condition must be recited on the face of the demand. And there is even less, if possible, to suggest a further requirement that factual details be so provided in order that it may be determined upon the face of the demand that the grounds upon which the Attorney-General has acted are in fact reasonable.

The constitutional requirements applicable to this kind of an investigatory process are less stringent than those provided by KRS 367.240. Fortunately for the courts that are called upon today to resolve matters concerning implementation of the investigative powers of administrative agencies, the opinion of yesteryear written in United States v. Morton Salt Co., 338 U.S. 632,70 S.Ct. 357, 94 L.Ed. 401 (1950), by one of the great “country-lawyer” judges of all time, the late Mr. Justice Robert Jackson, has weathered the passing seasons as a living bible on the subject. In a word, “On these . . . commandments hang all the Law and the Prophets.” Some of them, most applicable to this case, are as follows:

“The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which- does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.” 338 U.S. at pp. 642-643, 70 S.Ct. at p. 364.
“Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.
“Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. But is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.” 338 U.S. at p. 652, 70 S.Ct. at p. 369.
“Before the courts will hold an order seeking information reports to be arbitrarily excessive, they may expect the supplicant to have made reasonable efforts before the Commission itself to obtain reasonable conditions. . . . However, we are not prepared to say that courts would be powerless if after an effort to clarify or modify such an order it still is considered to be so arbitrary as to be unlawful . . . ” 338 U.S. at pp. 653-654, 70 S.Ct. at p. 369.
“To protect against mistaken or arbitrary orders, judicial review is provided.” 338 U.S. at p. 640, 70 S.Ct. at p. 363.

That the General Assembly in enacting the Consumer Protection Act did not intend to confine an inquiry into the reasonableness of an investigative demand issued pursuant to KRS 367.240 to what is shown on its face is suggested by the inclusion of KRS 367.260, as follows:

“Any person may apply to a circuit court for an appropriate order to protect such person from any unreasonable investigation action taken pursuant to KRS 367.110 to 367.300.”

This statutory provision for relief is analogous to the unwritten right of access to the courts possessed by any person who has no other remedy and claims to be the victim of unconstitutionally arbitrary action at the hands of a governmental agency. Cf. Pritchett v. Marshall, Ky., 375 S.W.2d 253, 257 (1964). Thus it is incorrect to say, as it is put in Pineur’s statement of the question here presented, that a showing of good grounds on the face of the investigative demand is required in order “that the courts are not denied their power of judicial view and to meet the requirements of due process and fundamental fairness.” Nothing in this procedure denies an aggrieved party access to a court of law before he is deprived of anything. And, as in any other case in which a plaintiff has been or is about to be injured in his person or property, once he makes a prima facie showing of facts entitling him to relief the defendant agency has the onus of coming forward with a showing of reasonable justification, else it runs the risk of an adverse judgment.

In this case the record as a matter of law supports the Attorney-General’s authority under KRS 367.240 to enforce production of some of the information specified in its demand. Whether it would be unreasonable to require production of all of it is an issue of fact not finally determined by the judgment, and we do not pass on that question.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

All concur.

      . Whether and the extent to which constitutional protections may differ as between natural persons and corporations is not within the scope of this opinion, which involves the appellee only in his capacity as an officer or agent of the four corporations.

      . For those who have a reverence for the law it seems fitting to pause here, and we see no reason why we should not, to observe that Mr. Justice Jackson’s stature, though certainly not unrecognized in his time, has continued to grow. The clearheaded common sense, the gift for expressing it with a simplicity that was nothing less than eloquent (which surely was attributable in some degree to his years of practice in a county-seat town), and the willingness to share his enlightenment with his fellow-lawyers, made him one of the great preceptors of the profession. More of his contributions to the American Bar Association Journal were nominated for inclusion in the Lawyer’s Treasury (Bobbs-Merrill, 1950) than those of any other contributor. See foreword to his “The County-Seat Lawyer,” id., p. 50 (reprinted from 36 ABAJ 497).

      . Cf. Book of Common Prayer, p. 69.

      . Ch. 4, Acts of 1972.


text:
    Lawrence ROBINSON, Appellant, v. CRIDER MINING COMPANY et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 20, 1976.

      Ronald W. May, Pikeville, for appellant.
    Francis, Kazee & Francis, Prestonsburg, Earl Cornett, Special Fund, Dept, of Labor, Frankfort, for appellees.
   PALMORE, Justice.

Lawrence Robinson appeals from a judgment affirming an order of the Workmen’s Compensation Board disallowing his claim for benefits on the basis of compensable pneumoconiosis coupled with chronic bronchitis. See KRS 342.316(7).

The claimant had worked for 27 years in the mines, and it was not denied by any of the medical witnesses that his exposure to harmful dust during the course of that experience would have been sufficient to cause pneumoconiosis and to be a significant factor in causing the chronic bronchial condition. He also had smoked a pack of cigarettes per day for 25 years.

Dr. Paul L. Odom examined the claimant personally and, with the assistance of an Xray and pulmonary function studies, diagnosed his condition as including category 1 pneumoconiosis, hypertension, and 50% hearing loss.

On the basis of the same Xray, but without examining the claimant himself, Dr. William H. Anderson testified that the Xray “showed sufficient nodulation as to warrant a designation of a category 2 pneu-moconiosis.”

Dr. Ballard D. Wright examined the claimant personally, took Xrays and made pulmonary function tests. His diagnosis was as follows:

“1 Chronic obstructive pulmonary disease, chronic bronchitic'type, associated with smoking and inhalation of respirable dust, Class II respiratory impairment, 10-20% impairment of the whole man.
“2 The diagnosis of coal worker’s pneu-moconiosis Category I cannot be excluded.
“3 Hypertensive cardiovascular disease untreated and uncontrolled.”

Dr. Richard P. O’Neill examined the claimant in behalf of the Special Fund. He too used Xrays and pulmonary function studies, and reported the following diagnosis:

“1. Chronic bronchitis. 2. Mild arterio-sclerotic cardiovascular disease. 3. Hypertension. 4. Anxiety tensions.”
With specific reference to pneumoconio-sis, Dr. O’Neill testified thus:
Q— “Is the plaintiff . . . disabled from engaging in the work of underground coal mining because of pneumoconiosis?”
A-— “No sir, he is not. I did not find evidence of pneumoconiosis. On my opinion he could continue to work as an underground coal miner.”
As to the bronchitic condition, Dr. O’Neill testified under cross-examination as follows:
Q— “Doctor, would this man’s dust exposure &f over some 27 years of coal mining have been a significant factor in the development of his bronchitis in your opinion?”
A— “Yes, sir.”

The Board expressly accepted as true “the evidence presented by the Special Fund to the effect that the plaintiff is not affected with the occupational disease of pneumoconiosis and disabled thereby” and on that basis found that he had not sustained the burden of proof to its satisfaction. The circuit court concluded that the evidence did not require a contrary factual finding.

The claimant argues that KRS 342.316(7) is being misconstrued. That statutory subsection, formerly KRS 342.316(6), was materially amended by Ch. 16, Acts of 1970, and was redesignated as KRS 342.316(7) by Ch. 78, Acts of 1972. It reads as follows (with the 1970 amendatory language italicized):

“In case of disability or death from silicosis, coal workers’ pneumoconiosis, or any other compensable pneumoconiosis, complicated with tuberculosis of the lungs, pulmonary emphysema or other pulmonary dysfunction and there has been employment exposure to harmful dust or industrial hazards reasonably competen c to produce such accompanying disease or dysfunction, there is a rebuttable legal presumption that all resultant disability therefrom is work related and compensable, and compensation shall be payable as for the uncomplicated disease, provided, however, that the disease or dysfunction was an essential factor in causing such disability or death.”

The claimant’s theory is that under this statute, even though Dr. O’Neill’s opinion was that there was no evidence of pneumo-coniosis, his concession that 27 years of coal mining would have been a significant factor in the development of chronic bronchitis, which he did find to exist, created a rebut-table presumption that the bronchial condition was work-connected and therefore compensable.

Perhaps that ought to be the law, but we did not write the statute and do not have authority to amend it as we might think more suitable. Plainly and clearly as can be put in the English language, it applies only to pulmonary dysfunctions that are accompanied by pneumoconiosis. Since there was a conflict in the medical evidence as to whether the claimant has pneumoconi-osis, the circuit court was correct in its conclusion that the Board’s finding in that respect cannot be set aside. Hence the rebuttable presumption provided by KRS 342.316(7) did not apply.

It does not necessarily follow, however, that the claimant was not entitled to an award.

Until 1970 KRS 342.316 provided in part as follows:

“ ‘Occupational disease’ as used in this chapter means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is equally exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section.”

By Sec. 3 of Ch. 16, Acts of 1970, the second sentence of that statute was deleted, thus eliminating the exclusion of ordinary diseases to which the general public is equally exposed outside of the employment in question. The upshot of this very significant change in the law is, we think, that even in the absence of pneumoconiosis the existence of another disease, common though it may be to the general public, need not be disregarded and cannot be summarily eliminated from consideration if there is competent evidence that it contributed to the claimant’s disability and that the work was a causative factor in it.

It is readily apparent that the Board, having rejected the diagnosis of pneumoconiosis, gave no consideration to whether the claimant was in any degree disabled as the result of chronic bronchitis and, if so, whether and to what extent, within the context of KRS 342.620(2)(a), his work in the mines had caused that condition. For that reason, and for the purpose of addressing itself to that issue, it is our opinion that the proceeding should have been remanded to the Board for reconsideration.

The judgment is reversed with directions that the proceeding be remanded to the Workmen’s Compensation Board for further consideration consistent with this opinion.

All concur.

      . Sec. 18 of Ch. 78, Acts of 1972, transferred the first sentence to KRS 342.620(2).