author: BISSETT, Justice.

text:
    Ramiro GARCIA, Appellant, v. Mike KELLY d/b/a Mike’s Vinyl Tops, Appellee.
    No. 1340.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 13, 1978.

      William E. Corcoran, Cardenas & Whitis, McAllen, for appellant.
    Richard C. Arroyo, Brownsville, for ap-pellee.
   OPINION

BISSETT, Justice.

Involved in this appeal is a motion to reverse a default judgment and to remand the cause for a new trial. Plaintiff, Mike Kelly, d/b/a Mike’s Vinyl Tops, hereafter called appellee, filed this suit against defendant, Ramiro Garcia, hereafter referred to as appellant, on July 7, 1977. Appellant did not answer. On November 1, 1977, appellee moved for a default judgment in this matter. A default judgment was rendered on November 3, 1977.

Appellant appeals by writ of error. He seeks a reversal and remand because he is unable to obtain a statement of facts in this particular default judgment case.

The judgment of the trial court recites that the appellant did not answer or appear at the hearing which resulted in the rendition of the default judgment. The judgment further recites that the court heard evidence. The trial judge, in an affidavit dated February 14, 1978, stated that “no court reporter was present as there is no official court reporter in the County Court at Law and the attorney appearing on behalf of Plaintiff/Appellee did not request or provide a court reporter for the transcription of testimony”. In another affidavit by the trial judge, dated March 7, 1978, it was stated that he “had no independent recollection of the testimony offered at the trial”, and that “a court reporter is provided when a party in an action before the court requests a court reporter”.

If an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence, a new trial should be granted in order to preserve his right to review. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 314 (Tex.Civ.App.—Dallas 1975, writ ref’d); Smith v. Smith, 544 S.W.2d 121, 123 (Tex.Sup.1976); Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.Sup.1972).

If the appellant was not present and was not represented by counsel when the testimony was taken, and he later discovers that no record was made, the lack of a record cannot reasonably be waived. Morgan Express, supra, at 314. Moreover, “An appellant is not required to undertake to agree with an adversary upon the facts adduced at the trial or to rely upon the unaided memory of the trial judge who decided the merits of the case in order to obtain a Statement of Facts”. Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.Sup.1978).

Accordingly, we find that appellant has exercised due diligence and through no fault of his own is unable to obtain a statement of facts. We hold that the recitations in the judgment and the statements contained in the affidavits of the trial judge compel us to reverse the judgment of the trial court and to remand the cause. Appellant’s motion to reverse and remand is granted.

The judgment of the trial court is REVERSED and the cause is REMANDED for a new trial.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Norman Travis KILGORE, Appellant, v. TEXAS REAL ESTATE COMMISSION, Appellee.
    No. 17950.
    Court of Civil Appeals of Texas, Fort Worth.
    April 13, 1978.
    Rehearing Denied May 11, 1978.
    Adams & Keith and Darrell L. Keith, Euless, for appellant.
    John L. Hill, Atty. Gen., Robert W. Gauss and Bill Campbell, Austin, for appellee.
   OPINION

HUGHES, Justice.

Norman Travis Kilgore appealed the judgment of the trial court which upheld the action of the Texas Real Estate Commission in suspending Kilgore’s real estate broker licensure privileges for a period of ninety days.

We affirm.

On March 20, 1976, Kilgore received earnest money ($500.00) from Mr. and Mrs. Kenneth Brown (which they deposited in connection with their purchase of land from Mr. and Mrs. Harold Hearn.) The deal fell through. Both parties claimed Kilgore knew there was a dispute between the Hearns and the Browns over the $500.00 and he retained the money. The Commission informed Kilgore on August 31, 1976, that he should remit the money to one of the parties. Kilgore’s attorney notified the Hearns and the Browns on September 2, 1976, that the money was in Kilgore’s escrow account.

The Hearns demanded the money by letter dated September 8, 1976, (received by Kilgore’s attorney in October, 1976). On November 17, 1976, Kilgore interplead the money into the registry of the court. The Commission instituted proceedings to remove Kilgore’s license later in November and, on December 7,1976, conducted a hearing which resulted in Kilgore’s license being suspended for ninety days.

The trial court, on appeal from the Commission, restricted the evidence to the record produced at the Commission hearing. Trial court affirmed the Commissioner’s order of license suspension.

Kilgore urges error because the trial court based its judicial review of Commission’s decision upon application of the substantial evidence rule to the record made in the Commission hearing instead of application of such rule to the evidence heard by the trial court.

Kilgore contends that the Administrative Procedure and Texas Register Act (AP-TRA), art. 6252-13a, Section 19, is unclear as to review of appeals under existing statutes involving the substantial evidence rule.

We do not agree. APTRA, Section 19(d)(3) provides:

“(d) If the manner of review authorized by law for the decision complained of is other than by trial de novo :
“(3) the review is conducted by the court sitting without a jury and is confined to the record, except that the court may receive evidence of procedural irregularities alleged to have occurred before the agency but which are not reflected in the record.” (Procedural irregularities are not of issue in this case.) (Emphasis added.)

Section 19(e) of APTRA provides:

“(e) The scope of judicial review of agency decisions is as provided by the law under which review is sought. Where the law authorizes appeal by trial de novo, the courts shall try the ease in the manner applicable to other civil suits in this state and as though there had been no intervening agency action or decision. Where the law authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review, the court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(1) in violation of constitutional or statutory provisions;
“(2) in excess of the statutory authority of the agency;
“(3) made upon unlawful procedure;
“(4) affected by other error of law;
“(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
“(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

There is no dispute that, before APTRA was adopted, the manner of review from Texas Real Estate Commission rulings was “other than by trial de novo”. Kost v. Texas Real Estate Commission, 359 S.W.2d 306 (Tex.Civ.App.—Texarkana 1962, writ ref’d). We agree with the reasoning of the trial judge that, with APTRA, the legislature intended to adopt just two standards of review: (1) Trial de novo, and (2) substantial evidence on the agency record.

Section 19(d)(2) of APTRA provides:

“(2) any party may apply to the court for leave to present additional evidence and the court, if it is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the agency, may order that the additional evidence be taken before the agency on conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file such evidence and any modifications, new findings, or decisions with the reviewing court; . .

This provision for the trial court to send matters back to the agency for further fact finding, instead of the court finding such facts for itself, evidences even more the intent of the legislature to restrict the evidence taking to the agency. No request was made by Kilgore to present more evidence to Commission.

We, therefore, hold that trial court was correct in passing on the question of whether suspension of Kilgore’s licensure was supported by substantial evidence.

Kilgore in his Point of Error Number 2 complains that there was not more than a scintilla of evidence to support Commission’s findings that Kilgore violated Section 15(4)(E), Article 6573a V.T.C.S. of the Real Estate License Act in “(E) failing within a reasonable time properly to account for or remit money coming into his possession which belongs to others . . .

Kilgore’s position is that, in informing the Hearns and the Browns of the whereabouts of the money in dispute (in his escrow account), he had “accounted for” the money and could not be held liable under the statute for failure to remit. Further, he contends that Commission’s failure to make a separate fact finding on “failure to account for” apart from the “failure to remit” rendered their findings invalid. We disagree, since it has been held that “to ‘account for’ means to pay to the one entitled thereto monies coming into his possession which belong to others.” Texas Real Estate Commission v. Bentley, 253 S.W.2d 325 (Tex.Civ.App.—Austin 1952, no writ).

On page 65 of the Statement of Facts from the Commission hearing Kilgore admitted knowing in April 1976 that there was a dispute over the money and stated, in answer to why he waited from April 8 to September to do anything about disposing of the funds: “And the Browns were asking for the money and the Hearns did not want to release it.” Then, in answer to why he did not pay it to the Hearns: “We didn’t have the release from the Hearns, they were asking for the money?” We hold that the Commission’s findings were supported by the evidence under APTRA and by the presumption of validity of orders of administrative agencies. Roquemore v. Texas Real Estate Commission, 501 S.W.2d 368 (Tex.Civ.App.—Austin 1973, no writ). We overrule Point of Error Number 3 for the reasons stated.

We overrule Point of Error Number 4 which avers unconstitutionality of the Commission’s action due to violation of Kil-gore’s right to due process. The complaint stated is that the two statutes here involved are so vague that there is a substantial risk of miscalculation by those whose acts are subject to regulation. Specifically, Kilgore charges that such statutes fail to clearly define the method of judicial review for an appellant. We disagree. We hold that AP-TRA, Section 19(d)(3) clearly requires a review confined to the record under the substantial evidence rule specifically set up for review other than by trial de novo.

We affirm the judgment of the trial court.


text:
    Guadalupe S. FARIAS, Appellant, v. TEXAS GENERAL INDEMNITY, Appellee.
    No. 1286.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 20, 1978.

      Raul Garcia, Randolph DeLay, Corpus Christi, for appellant.
    Jack Latson, Flahive & Ogden, Austin, for appellee.
   OPINION

BISSETT, Justice.

This is an action to recover death benefits under the Workmen’s Compensation Statutes of Texas. Following a jury trial, judgment was rendered that Guadalupe S. Fari-as, the mother of the deceased employee, take nothing by her suit. Guadalupe S. Farias has appealed.

Only one special issue was submitted. That issue and the jury’s answer thereto reads, as follows:

“SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Tomas Farias received such injury in the course of his employment by Orkin Exterminating Company?
‘Injury in the course of Employment’ means any injury having to do with and originating in the work, business, trade or profession of the employer, received by the employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.
An injury received while the employee is in a state of intoxication is not in the course of employment.
Answer ‘We do’ or ‘We do not.’
ANSWER: We do not”

No other issues were requested.

On Saturday, November 8, 1975, at approximately 7:35 p.m., an Orkin Exterminating Company pickup truck operated by Tomas Farias, an employee of Orkin, was involved in a single vehicle accident in the northbound bar ditch on Highway 181, near Beeville, Texas. Tomas Farias was transporting Herlinda Sandoval and her two grandchildren to Beeville at the time of the accident.

Upon arriving at the scene of the accident, Officer Leo Franco found the driver, Tomas Farias, dead. Officer Franco smelled a strong odor of alcohol on Tomas Farias and on his clothes, and found a half empty bottle of cherry vodka in the Orkin truck. The road was dry at the time of the accident. Based on his experience in investigating many auto accidents since 1969, as well as numerous DWI cases, Officer Franco was of the opinion that Tomas Farias was intoxicated at the time of the accident, and so testified.

Officer Franco requested that a blood sample be drawn from the body of the deceased. James Waller, a chemist for the Department of Public Safety, testified that the label on the blood sample showed that it was taken by “Kelly Merritt, R.N. at 8:00 _ m” on November 8, 1975. The blood sample was found to contain 0.33 per cent alcohol by weight.

Herlinda Sandoval testified that she “couldn’t tell when Tomas Farias was drinking because you couldn’t tell that he drank”. She further testified that on the day of the accident she and her two grandchildren left Victoria, Texas, in the pickup that was being driven by Tomas Farias at “4:00 to come to Beeville and that Tomas Farias was not drunk or drinking”. They stopped at Raisin, Texas, but, according to her, he “did not drink”. She did not remember anything about the accident.

David Garcia, who owned a “beer joint” in Raisin, testified that on the day of the accident Tomas Farias stopped at his place of business. Farias left about “5:00”.

Guadalupe S. Farias, hereinafter called “appellant”, was 78 years of age at the time in question. She did not know whether her son was married or not, but did testify that he “had other relatives”, but she did not know where they lived. The last time she saw her son was on November 6,1975. She said she did not expect to see him again until Saturday, November 8, 1975.

William Herndon, the manager of Orkin’s Corpus Christi office, testified that Tomas Farias was an Orkin employee on the date of the accident. He said that Tomas Farias was authorized to take the company pickup “home at night”, and that Orkin’s employees “sometimes worked on weekends”. However, he further testified that Tomas Farias was not in Beeville on November 7, 1975, had no business in Beeville on November 8, 1975, and did not have “authority to go anywhere for Orkin on November 8”.

Appellant, in her first point of error, complains that the trial court erred in “allowing appellee to introduce testimony pertaining to the alcohol content” of the blood sample. In the second point of error, she says that the trial court erred in “permitting the introduction of Officer Leo Franco’s opinion that Tomas Farias was intoxicated at the time of the accident”.

Appellant, by a Motion in Limine, objected to the introduction of testimony pertaining to the blood alcohol content of the deceased. The motion was overruled. However, in order to preserve the right to complain about the introduction of that testimony on appeal, there must be an objection made at the time that the testimony is offered into evidence. Hartford Accident and Indemnity Company v. McCardeli, 369 S.W.2d 331 (Tex.Sup.1963). No such objection appears in the record. The action by the trial court, under the circumstances, is not subject to review by this Court. Appellant’s first point is overruled.

Appellant further complains of the testimony of Officer Leo Franco. In order to preserve the right to complain about the introduction of testimony in the trial court on appeal, there must be an objection made at the time that the testimony is offered into evidence. Seymour v. Texas & N. O. R. Co., 209 S.W.2d 814 (Tex.Civ.App.—El Paso 1947, writ ref’d); Swinney v. Winters, 532 S.W.2d 396 (Tex.Civ.App.—San Antonio 1976, writ ref’d n.r.e.); McDonald v. Hanks, 349 S.W.2d 787 (Tex.Civ.App.—Eastland 1961, writ ref’d n.r.e.). Appellant did not object to the testimony of Officer Franco at the time it was offered into evidence. Appellant’s second point is overruled.

Appellant’s third point of error reads: “The trial court erred in prohibiting the introduction of evidence by Appellant as to the reasons for Tomas Farias’ trip to Beeville, Texas, in the Appellee’s truck.”

The only argument contained in appellant’s brief with respect to the point is found in the following two sentences:

“. . . The court excluded direct testimony that the deceased was travelling to Beeville to complete a job for Orkin in its truck. Said testimony is admissible as res gestae to show deceased’s status as an employee. ...”

To be admissible as res gestae the statements must be shown to have been a spontaneous reaction to an exciting event. Hartford Accident and Indemnity Company v. Hale, 400 S.W.2d 310 (Tex.Sup.1966). The record does not indicate that any statement made by Tomas Farias to Herlinda Sandoval, or to anyone else, as to his reason for going to Beeville on the date of the accident was a spontaneous reaction to an exciting incident or occurrence to which the statements relate. The statements cannot be admitted as res gestae. Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.Sup.1963). Moreover, Mr. Herndon admitted that Tomas Farias was an employee of Orkin at all times pertinent to this suit. Appellant’s third point is overruled.

Appellant further contends that the trial court erred in submitting to the jury an instruction on the “dual purpose” doctrine (fourth point), and in including “an instruction on intoxication” (fifth point).

All objections to the trial court’s charge to the jury must be made “before the charge is read to the jury”, and “all objections not so presented shall be considered as waived”. Rule 272, T.R.C.P. (1976).

According to the record here presented, appellant did not object to the inclusion of any of the instructions set out in Special Issue No. 1 before the charge was read to the jury. In that state of the record, all objections were waived, and the complaint now being voiced was not preserved for appellate review. Safeway Stores, Incorporated v. Bozeman, 394 S.W.2d 532 (Tex.Civ.App.—Tyler 1965, writ ref’d n.r.e.); Carter v. Barclay, 476 S.W.2d 909 (Tex.Civ.App.—Amarillo 1972, no writ); Kroger Food Company v. Singletary, 438 S.W.2d 621 (Tex.Civ.App.—Beaumont 1969, no writ). Appellant’s fourth and fifth points are overruled.

Appellant’s sixth and final point of error reads:

“The Jury’s finding is factually insufficient for the reason that there is no admissible evidence to support said finding, or in the alternative, for the reason that •said finding is against the great weight and preponderance of the evidence.”

The statement, argument and authorities concerning the point consists of one sentence in appellant’s brief. The sentence reads:

“Considering the admissible evidence in the record and the points of error herein-above mentioned, the jury’s finding is not supported by the admissible evidence.”

The point was not briefed; it is, therefore waived on appeal. Rule 418, T.R.C.P.; Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.—San Antonio 1944, writ ref’d); Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e., cert. denied 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095); Hale v. Ramsey, 524 S.W.2d 436 (Tex.Civ.App.—Austin 1975, no writ). Appellant’s sixth point is overruled.

The judgment of the trial court is AFFIRMED.


author: BRADBURY, Justice.

text:
    Lee RATNER and John Zuro, Individually and d/b/a the Grant Company, Appellants, v. Elliott H. POWERS et al., Appellees.
    No. 5135.
    Court of Civil Appeals of Texas, Eastland.
    April 20, 1978.
    Rehearing Denied May 4, 1978.

      Keith Woodley, Sudderth, Woodley & Dudley, Comanche, for appellants.
    Hayden Burns, Houston, for appellees.
   BRADBURY, Justice.

This is a venue case. Plaintiffs, Lee Rat-ner and John Zuro, individually and d/b/a The Grant Company, sued defendants, Elliott H. Powers, J. F. Freel, Sioux Natural Gas Corporation and Sioux Pipeline Corporation, in trespass to try title in Comanche County. Defendants’ plea of privilege seeking to remove the case to Harris County was sustained. Plaintiffs have appealed and we affirm.

Plaintiffs relied on Article 1995, Subdivision 14, V.A.C.S., to maintain venue in Comanche County. Defendants contend that plaintiffs waived their right to maintain this suit in Comanche County. We agree.

A few months before the filing of the instant suit, plaintiffs sued defendants, except Sioux Pipeline Company, in Harris County. Defendants in the Harris County suit by counterclaim prayed that cloud be removed from their title and that title be quieted in them. After defendants had filed their counterclaim, the plaintiffs answered it and then took a nonsuit as to their case.

The suits in both counties were the outgrowth of a series of contracts executed in 1974 where oil and gas properties in a number of West Texas counties, including Comanche County, were assigned with plaintiffs retaining a 25% interest. In the Harris County case, plaintiffs asked for an accounting and, in the alternative, for rescission and a reconveyance of the properties to them. They also prayed for injunc-tive relief. In the original petition in Comanche County, plaintiffs asked for substantially the same relief asked for in their Harris County case and, in addition, prayed for damages based on alleged fraud. Plaintiffs then filed their first original amended petition pleading only for trespass to try title and for $10,000,000.00 as rental value of the properties. It is undisputed that some of the land involved is located in Comanche County.

Defendants contend that the plea of trespass to try title is insufficient and in any event plaintiffs have waived their right to have the case tried in Comanche County. Plaintiffs contend that in view of their plea of trespass to try title, Subdivision 14 of Article 1995, V.A.C.S., was applicable, and it was mandatory that the case be tried in Comanche County. They rely on Leonard v. Carter, 389 S.W.2d 147 (Tex.Civ.App.—Fort Worth 1965, writ dism’d), wherein the court said:

“. . . Vernon’s Ann.Tex.Civ.St., Art. 1995, ‘Venue, general rule’, provides in general that an inhabitant of Texas shall be sued only in the county where he has his domicile. Subdivision 14, ‘Lands’, constitutes an exception to said general rule. Thereunder it is made mandatory that: ‘Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.’ ”

Although in mandatory language, Subdivision 14 is a matter relating to venue and can be waived and was waived in this case.

In Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65 (1942), the court said:

“Even if the suit is correctly classified as one within the terms of subdivision 14, the Court of Civil Appeals should not have rendered judgment transferring the cause to Gregg County. There was no pleading to support that judgment. No party to the suit sought by pleading to have the cause transferred to Gregg County. Subdivision 14 of Article 1995, which provides that suits for the recovery of land, etc., must be brought in the county where the land may lie relates to venue and is not jurisdictional. Every district court has jurisdiction over the subject matter of such suits; and since the requirement is one of venue or privilege, and is not jurisdictional, it may be waived. De La Vega v. League, 64 Tex. 205, 214; South Texas Development Co. v. Williams, 130 Tex. 217,107 S.W.2d 378; State v. Patterson, Tex.Civ.App., 40 S.W. 224; Wolf v. Willingham, 43 Tex.Civ.App. 167, 94 S.W. 362; Lanier v. Looney, Tex.Civ.App., 2 S.W.2d 347, 350, application for writ of error refused. As said in the case last cited, this statute ‘merely furnishes a venue privilege of which a party may avail himself.’ ”

In Camellia Diced Cream Company v. Chance, 339 S.W.2d 558 (Tex.Civ.App.— Houston 1960, no writ), the court stated:

“Notwithstanding the use of the word ‘must’ in Subd. 14, our courts have held that the district court has jurisdiction over the subject matter of suits for the recovery of damage to land and the requirement that suit be brought in the county where the land is located is one of venue or privilege, and not of jurisdiction, and it may be waived. The statute merely furnishes a venue privilege of which a party may avail himself . . ”

When plaintiff selects the forum for trial, then all matters arising from the same subject matter or which require or permit a defendant to set up in a counterclaim are to be tried in such county and plaintiff waives his right to have the case tried in another county. In Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 (1948), our Supreme Court said:

“. . . When the plaintiff instituted this suit in Tarrant County he submitted himself to the jurisdiction of the District Court of Tarrant County as to all matters arising cut of or incidental to the subject matter of the suit, and thereby waived his right to be sued in the county of his domicile in a cross-action arising out of such cause of action .
Where a cross-action has been filed asking for affirmative relief as to matter directly connected with the subject matter of the original cause of action, after the cross-action has been filed it is too late for the plaintiff to dismiss the original suit and object to having the issues of the cross-action determined in the forum of the original suit, rather than in the forum of the residence of the defendant in the cross-action . . . ”

In accord, Vanguard Insurance Company v. Young, 511 S.W.2d 65 (Tex.Civ.App.—Houston (1st Dist.) 1974, no writ); Hurst v. Stewart, 526 S.W.2d 668 (Tex.Civ.App.—San Antonio 1975, writ dism’d); Mumme v. Spies, 15 S.W.2d 137 (Tex.Civ.App.—San Antonio 1929, no writ); Fort Worth National Bank v. Stiff, 482 S.W.2d 337 (Tex.Civ.App.—Eastland 1972, cert. denied); Connell v. Spires, 264 S.W.2d 458 (Tex.Civ.App.— Eastland 1954, no writ).

Plaintiffs, by bringing suit in Harris County and asking for an accounting and, in the alternative, for a rescission of the contract, submitted themselves to the jurisdiction of the district court of that county as to all matters arising out of or incident to the suit. This constitutes a waiver of their right to maintain suit in Comanche County where part of the land in question is located as there is a sufficient relationship between plaintiffs’ suit and defendants’ counterclaim to show that the latter arises out of, or is incidental to, the subject matter of the main suit. Bailey v. Federal Supply Co., 287 S.W. 1090 (Tex.Comm.App., 1926); Hurst v. Stewart, supra; Fairbanks v. McAllen, 170 S.W.2d 581 (Tex.Civ.App.— San Antonio 1943, writ ref’d); Campbell v. Galbreath, 441 S.W.2d 297 (Tex.Civ.App.— Waco 1969, writ dism’d).

Judgment of the trial court is affirmed.

      . “Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”


author: JAMES, Justice.

text:
    H. Miller McPHERSON, Appellant, v. Ronnie D. SAWYERS, Appellee.
    No. 5908.
    Court of Civil Appeals of Texas, Waco.
    April 27, 1978.
    Rehearing Denied May 11, 1978.
    Harry L. Dulick, James E. Ferguson, Cle-burne, for appellant.
    Michael R. Burkett, Garrett & Burkett, Fort Worth, for appellee.
   OPINION

JAMES, Justice.

In this case the Appellant originally had until February 19, 1978, in which to file the transcript and statement of facts.

Appellant timely filed the transcript, but has not filed a statement of facts nor has Appellant requested of this court an extension of time for filing same.

The transcript shows that Appellant filed an application for a 120 day extension of time in the trial court, and that the trial court entered an order dated January 10, 1978, granting said 120 day extension of time from and after February 19, 1978. There is no authority for the trial judge to extend the time for filing the record in the Court of Civil Appeals, and any order purporting to do so is without force and effect. Rules 21c and 386, Texas Rules of Civil Procedure; Bloodworth v. Bloodworth (San Antonio, Tex.Civ.App.1975) 519 S.W.2d 471, no writ; Shotts v. Pardi (Corpus Christi, Tex.Civ.App.1971) 472 S.W.2d 177, no writ.

Moreover, under the record, Appellant’s brief was due March 23, 1978. To date Appellant’s brief has not been filed, nor has Appellant made any request of this court for extension of time for filing same. The appeal is dismissed. Rules 414 and 415, Texas Rules of Civil Procedure.

APPEAL DISMISSED.


author: LUKOWSKY, Justice.

text:
    Willis Lerner MASON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 11, 1978.
    Terrence R. Fitzgerald, Deputy Public Defender, Daniel T. Goyette, Asst. Public Defender, Louisville, for appellant.
    Robert Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Mason was convicted of two counts of first-degree assault and two counts of first-degree robbery. The jury fixed the maximum penalty of twenty (20) years’ imprisonment on each count. Mason’s sole defense at trial was insanity. The jury did not buy it. Mason appeals.

The only question presented by this appeal is whether Mason’s right to a fair trial was violated by the trial judge’s inclusion in his instruction to the jury on insanity the statement that every man is presumed sane until the contrary is shown by the evidence. We answer this question in the negative’ and affirm.

The Circuit Court did not err by so instructing the jury. This language was approved by our decision in Terry v. Commonwealth, Ky., 371 S.W.2d 862, 865 (1963). Even if we were to assume that such an instruction was error, Mason failed to preserve it for review either by a timely specific objection to the instruction or by a timely offering of an alternative instruction which fairly and adequately presented his position. RCr. 9.54; Hopper v. Commonwealth, Ky., 516 S.W.2d 855, 857 (1974); see Hankerson v. North Carolina, 432 U.S. 233, 244 n. 8, 97 S.Ct. 2339, 2345 n. 8, 53 L.Ed.2d 306, 316 n. 8 (1977). In addition, the insanity instruction offered by the defense was identical to that given by the trial court. Having requested the instruction Mason is now precluded from complaining of its content. Day v. Kelsey, Ky., 433 S.W.2d 889, 890 (1968); Bennett v. Craycraft, Ky., 290 S.W.2d 615, 617 (1956).

However, we take this opportunity to review the instruction to be given a jury on the issue of insanity. In Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978), we reaffirmed the traditional Kentucky view that juries should not be instructed on presumptions, except for peculiar limited statutory presumptions involving expert testimony. We are unable to divine any policy reason which would exclude the presumption of sanity from our general rule.

Presumptions are in the nature of guides to be followed by the trial judge in determining whether there is sufficient evidence to warrant the submission of an issue to the jury, and should not be included in the instruction. Jones v. Commonwealth, 291 Ky. 719, 721, 165 S.W.2d 566, 567 (1942); McCormick’s Handbook of the Law of Evidence, Sec. 345 (2d ed. 1972); Thayer, Preliminary Treatise on Evidence 314-54 (1898). See generally Annot., 5 A.L.R.3rd 19 (1966).

As McCormick puts it at page 821:

“[T]he only effect of a presumption is to shift the burden of producing evidence with regard to a presumed fact. If that evidence is produced by the adversary, the presumption is spent and disappears .. The trial judge need only determine that the evidence introduced in rebuttal is sufficient to support a finding contrary to the presumed fact. If that determination is made, certainly there is no need to instruct the jury with regard to the presumption.”

In the exercise of our supervisory authority over the courts we conclude that in cases hereafter submitted to the jury on the issue of insanity the trial judge shall delete the following sentence from the instruction prescribed in Terry v. Commonwealth, supra: “The law presumes every man sane until the contrary is shown by the evidence.”

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    Freddie LYNEM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 11, 1978.

      Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
   JONES, Justice.

Freddie Lynem appeals from a judgment sentencing him to imprisonment for 20 years pursuant to a jury verdict finding him guilty of robbery in the first degree under the provisions of KRS 515.020.

As grounds for reversal it is argued: (1) that the prosecutor improperly commented on Freddie’s custodial silence; (2) that the trial court’s instructions were improper; (3) that the trial judge erred by allowing introduction of other criminal activity by Freddie; (4) the closing argument of the prosecutor was inflammatory and prejudicial; and (5) that the trial court erred by denying Freddie’s request for a pre-trial line-up.

Counsel at the trial level was the local public defender of Fayette County. On this appeal, Freddie is represented by the public defender of the Commonwealth.

Richard Vance, Harold Greathouse, and D. H. Leach, businessmen from North Vernon, Indiana, spent a pleasant day at the races at Keeneland on October 20, 1976. Fortune smiled on them, as they were each heavy winners. They enjoyed the races, as well as the beautiful Kentucky Autumn. Each of them was exuberant as their selected horses won. After each race each of them would quench his thirst with his favorite brand of beer.

After the last race, Freddie approached them as they were celebrating their good day at the races. Freddie sold a watch to Vance for $10.00. He then sought a ride to Lexington. Bolstered by the beer and their winnings, Vance, Greathouse, and Leach were in a jovial mood. They gave Freddie a ride to Lexington. On their way they stopped at a liquor store. They bought a bottle of whiskey for their own use and a bottle of wine for Freddie.

Subsequently, they went to the University Inn and rented two rooms. They had several drinks. Freddie, who turned out to be a skillful con artist, was very helpful. He went to the desk clerk and procured a key for one of the rooms, and also brought a bucket of ice. In the meantime, Freddie offered to obtain some girls for Vance, Greathouse, and Leach. In testifying about that matter, Vance said to Freddie:

“ ‘Well, go get them.’ And so he wanted to use my car. So I give Gabby (Great-house) the keys to my car and I said: ‘Well, are you going with him?’ I didn’t want to give my keys to anybody, you know, and Gabby says: ‘Yeah, I’ll go with him.’ And he walked out the door and came back in and he throwed Brook-sy (Leach) his money — he had about eleven, twelve hundred dollars there, and he said: ‘I’m not gonna take this money if I’m going with this guy.’ ”

When Greathouse came back to the motel room he had already handed the keys “to the colored boy” (Freddie). Greathouse went back out to go with Freddie but he had already left in Vance’s Cadillac automobile. In approximately 45 minutes, Freddie returned accompanied by another colored boy. In reference to his companion, Freddie said: “This is my ‘procurer,’ and pulled that pistol out from — out from under wherever he had it and he stuck it in Gabby’s face.” The man who accompanied Freddie had on one of those “long coats.” He opened the coat and had a shotgun. He said, “Boys, I want your money.” So at the point of a pistol by Freddie and at the point of a shotgun by Freddie’s colored companion, who was Gary Shanks, they robbed Vance of $800.00, Greathouse of $1,000.00, and Leach of $180.00. They then fled the scene.

Freddie left Lexington on the 11 o’clock bus for Pontiac, Michigan. Subsequently, he was arrested in Pontiac on a charge of three counts of first-degree robbery. He was extradited to Lexington, Kentucky, on May 4,1977, and was tried on May 27,1977.

Vance, Greathouse, and Leach reported the robbery to the police and at the Lexington Police Station they were shown the photographs of some 50 persons. From the photographs Vance and Leach picked out those of Freddie Lynem and Gary Shanks. Greathouse was unable to identify the photographs that night. Freddie was described by the victims as being slender, and having an afro haircut, and he was “. light-complected colored fellow.” He was wearing a white hat and underneath it was a turban. All of the witnesses for the Commonwealth described him as having a gold tooth. Some of the witnesses testified that he was wearing an earring.

Vance, Greathouse, and Leach testified that the amount they had to drink didn’t affect their judgment. That was corroborated by the police, as well as by the desk clerk at the University Inn. Vance’s explanation about taking up with a stranger was as follows:

“Oh, I don’t know. Shoot, we’re just country boys out having a good time, and, you know, you just don’t think about somebody — I’ve been around colored folks all my life, had ’em work for me, I trust most of ’em; and young kid like that? Heck, I got children about his age; I didn’t think nothing about asking that boy to — If he asked us to ride to town, give us a hard-luck story. I didn’t think nothin’ about ridin’ him to town, never thought once about it. In fact, when he come in there and pulled that gun, I couldn’t believe it, you know, it — you know, you’re not that suspecting a personality; or, I’m not.”

At the close of the testimony for the Commonwealth, Freddie took the witness stand in his own defense. He agreed with most of the testimony of Vance, Great-house, and Leach, but denied that he committed armed robbery. Freddie testified he committed theft by unlawful taking. He further testified that one of the men asked him if he knew where they could get some “good women.” Freddie told him he was talking to the right person. Freddie told an incredible story that the men gave him $700.00 so that he could impress the women with the kind of money they would be able to get and that Greathouse delivered the car keys to him. He rode around in the car for a while as if the car belonged to him. He testified that he drove over to the home of his girl friend, Sarah Dunson, and showed her the seven $100 bills.

Sarah Dunson testified that Freddie came by her house between 5 and 6:30 P.M. on October 20, 1976, and that he was driving a blue Cadillac. She testified that Freddie gave her $2.00 and that the only other money she saw in Freddie’s possession was two $1.00 bills.

The court now directs its attention to the issues presented on appeal.

Freddie first contends the prosecutor erred by commenting on his custodial silence. During the redirect examination of Detective Giles, the Commonwealth’s Attorney asked this question:

“This man (Freddie) has made no statement to you either, has he, Detective Giles?
A. No, he has not.”

Because Freddie had not made any statement his trial counsel must not have thought it hurt, because he didn’t voice any objection. In the absence of an objection or some other prompt request for relief, there was no error on the part of the trial court simply because he had no opportunity to rule upon the matter. Summitt v. Com monwealth, Ky., 550 S.W.2d 548 (1977), RCr 9.22.

Freddie next asserts that he was entitled to an instruction on theft by unlawful taking. Again trial counsel must not have thought Freddie was entitled to that instruction under the evidence. The following proceedings took place at the bench by the court:

“THE COURT: Will you gentlemen please approach the bench?
(Mr. Famularo and Mr. Towles complied.)
THE COURT: Do the attorneys have any objections to the Instructions?
MR. FAMULARO: No objections.
MR. TOWLES: I have no objections to the Instructions.”

Because no instruction on theft by unlawful taking was requested, nor was objection to the instruction made, Freddie cannot now raise the issue on appeal. RCr 9.54; Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977).

The next point raised by Freddie alleges reversible error because of introduction of other criminal activity on his part.

During the testimony of Mr. Leach he explained that there was another couple from North Vernon, Indiana at the University Inn, “and they had had a few drinks there and they said: ‘Well, we’ll go down and get dressed and we’ll pick you up and we’ll go eat.’ So he, this fellow (Freddie) took the car, said he’d bring back some women. When we came back there was two of them and they both had guns and the other couple had left. They didn’t . he had, in the meantime, robbed her of her purse while it was on the floor, about 30 or 40 dollars. But we didn’t know anything about that until later on when we were eating, and she said, ‘he robbed us. He robbed them too.’ ”

BY MR. TOWLES: “I object to that, your honor.”
THE COURT: “Sustained.”
MR. TOWLES: “Would request admonition.”
THE COURT: “The jury is asked not to consider that as evidence because it is hearsay.”

Freddie’s counsel didn’t request any further relief. He received all that he asked and cannot now complain. Brown v. Commonwealth, Ky., 449 S.W.2d 738 (1969); RCr 9.22.

Freddie also complains that the closing argument was so inflammatory and prejudicial as to deny him a fair trial. A reading of the closing argument refutes Freddie’s contention. Part of the argument complained of is as follows:

MR. FAMULARO: “Punishment is for punishment’s sake. Punishment and sentence in a penitentiary is more than that. It’s to say to the man that did it: Don’t do it again. But more than that, it's to say to all of these people in our community that are out there picking locks and rob and steal and make money easy and saying: I don’t have to work for it. It’s saying to those — your sentence here today is saying to those: Don’t do it; we won’t tolerate it. We’re going to make this place a safe place, and we’re going to stomp out people that rob at gunpoint.
“And this crime deserves more than the minimum punishment, Ladies and Gentlemen, for the simple reason that there is not a more potentially dangerous crime than that of armed robbery. If somebody moved the wrong way or if some innocent walked in an (sic) spoofed them, it wouldn’t be a robbery here before you; it would be a murder. And for that potential danger, it deserves the maximum.
“I ask that you find this man guilty and impose the maximum of 20 years, and by that, attempt to stop this in our community. Thank you.”

This court is of the opinion that the statement and remarks complained of do not constitute the giving of material testimony by the prosecutor such as to be a violation of the right to confrontation nor were the remarks an appeal to prejudice. There were other portions of-the argument objected to, but this court is unable to find that an objection was made by Freddie’s counsel to that portion of the argument quoted above. In any event, the Commonwealth’s Attorney is allowed reasonable latitude in argument to persuade the jurors the matter should not be dealt with lightly. Harness v. Commonwealth, Ky., 475 S.W.2d 485 (1972); Richards v. Commonwealth, Ky., 517 S.W.2d 237 (1974).

Freddie’s final argument raised in a supplemental brief is that he was denied due process because the trial court overruled his motion for a pre-trial line-up. He admits however, that he does not have the constitutional right to a line-up and concedes that a granting of such a line-up is within the discretion of the trial court. This court is of the opinion that the validity of the photographic identification by Vance and Leach and the in-court identification of Freddie by all the victims were sufficiently tested during the trial. Freddie has not shown that the failure to grant his motion was an abuse of the trial court’s discretion.

Fortune also smiled on Freddie. Actually under the provisions of KRS 505.020 Freddie was charged with three counts of armed robbery. The trial court, however, merged the three counts of first-degree robbery into one count over the objection of the Commonwealth’s Attorney.

This court finds no error prejudicial to the substantial rights of Freddie Lynem.

The judgment is affirmed.

All concur.


text:
    Bill NICKELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 11, 1978.
    Rehearing Denied May 23, 1978.

      Jack Emory Farley, Public Defender, M. Gail Robinson, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   JONES, Justice.

Bill Nickell was indicted for the murder of Carl Brewer. KRS 507.020. He was convicted of first-degree manslaughter, KRS 507.030(1), and sentenced to 20 years’ imprisonment.

As grounds for reversal it is argued: (1) that the testimony of Brewer’s wife was prejudicial and inadmissible; (2) that the trial court erred in overruling his motion for a continuance; (3) that the prosecutor failed to prove beyond a reasonable doubt that he was not acting in self-defense; (4) that the trial court’s instructions were improper; (5) that the trial judge erred by admitting a statement made by Bill when he was in custody and so drunk that he was unable to confess voluntarily or to waive his constitutional rights; (6) the prosecutor’s closing argument was improper; (7) that he was deprived of effective assistance of counsel because of trial counsel’s failure to make proper objections; and, (8) the trial judge failed to follow the sentencing procedures of KRS 532.050.

Counsel at the trial level was the local public defender of Wolfe County. On this appeal Bill is represented by the public defender of the Commonwealth.

This case arises out of an unfortunate encounter between Bill Nickell and Carl Brewer at an IGA parking lot in Wolfe County. On February 22, 1977, Bill and Shirley Brooks met in Campton, Kentucky around 10:30 A.M. and drove out to the “Yello-Boy” restaurant for coffee. According to the testimony of Bill and Shirley, they then drove in Bill’s Cougar automobile to get the van he used as an employee of the American Coal Company. Bill testified that he took a gun that he used as night watchman from the Cougar into the van. Shirley testified that she saw Bill put the gun on his person. Bill testified that he was already wearing the gun before he saw Carl Brewer. Bill and Shirley returned to Campion. Bill testified that he planned to wash the van. There was a bottle of whiskey in the van from which both Bill and Shirley drank. Bill turned into the IGA Supermarket parking lot but the car of Brewer was blocking the entrance. Bill asked Brewer to move his car and an argument ensued. Both Bill and Shirley testified that Brewer cursed Bill and came over to the van where he pulled Bill’s hair. Bill left the parking lot, but returned after 10 or 15 minutes to buy paper towels with which to wash the van. Meanwhile, Brewer had gone to get the city marshal, complaining that Bill was drunk and that he and Bill had “gotten into it.” The marshal testified that Brewer said he should have killed Nic-kell, but did not. The marshal returned to the lot with Brewer where he found Bill’s van.

The two vehicles were side by side facing opposite directions so that the drivers’ sides were adjacent. When Bill got out of the van he testified that he saw Brewer reaching across the seat of his car. The marshal was walking around the front of Brewer’s car and did not see Bill shoot Brewer. He did, however, hear three shots and saw Bill holding a gun and standing two feet from Brewer’s car immediately after the shoot-' ing. Brewer was in his own car when he was killed. There was no evidence that he was armed, no weapon was found, and none of the witnesses saw him with a weapon. Brewer was taken to a Lexington hospital where he subsequently died as a result of the three wounds — one under each shoulder blade and one to the right of the center of the spine. Bill was arrested immediately and taken into custody where he made a statement to Detective Roy Ison.

Bill’s first assignment of error is that it was prejudicial for the Commonwealth to introduce the testimony of Brewer’s wife. She was not a witness to the tragic incident, and testified only as to when she last saw her husband alive and to the number and ages of her children. Bill’s counsel, in one of his few objections throughout the entire trial, objected to her testimony insisting that it was immaterial and solely designed to play upon the emotions of the jury. In light of all the evidence and Bill’s admission that he shot Brewer, this testimony cannot be said to be so prejudicial as to require reversal. The evidence in this case is not close, nor does the use of Brewer’s wife as a witness reach the level of “flagrant prosecutorial misconduct” as Bill charges. Her testimony, although irrelevant to the issues in the case, was not prejudicial error.

Bill next argues that the trial court abused its discretion by overruling his motion for a continuance. He was arraigned on April 12, 1977, the same day the indictment against him was returned. Because the public defender was not available on that day, a local attorney was called in to assist Bill. The trial was set for April 19, 1977. On April 19, the ease was called and Bill was represented by the local public defender, Mr. Kelly, and Mr. Owen, an attorney who had been appointed to assist Bill. Mr. Kelly moved for a continuance on the ground that a week was not enough time to prepare a defense on the serious charge of murder. Mr. Owen also noted that he had been involved in preparing tax returns that week.

There was absolutely no abuse’ of discretion on the. part of the trial judge in overruling the motion for continuance. Both Kelly and Owen had worked on the case the week prior to trial. Bill was on bond and available to assist in his defense, which was self-defense. Bill’s counsel stated that the theory of Bill’s side of the case was “what was in the defendant’s mind” at the time the shooting occurred. There was no question of misidentification. Bill admitted shooting Brewer. There was no problem pertaining to missing witnesses. In fact, Owen stated that Bill had rounded up a witness that very morning. Under these facts no prejudice or “manifest injustice” resulted from the denial of the motion to continue. Taylor v. Commonwealth, Ky., 545 S.W.2d 76 (1976).

Bill contended that he shot and killed Brewer in self-defense. He testified that when he saw Brewer reach across the seat to the glove compartment he feared that Brewer was reaching for a gun and he then shot Brewer. The city marshal testified that Brewer never got out of his automobile. After the shooting, the marshal heard Bill say, “I’ll teach you, god damn you, never to run over me any more.” None of the witnesses testified to seeing Brewer with a weapon, nor was any weapon found on him after the shooting.

Bill testified that he was afraid of Brewer because at the earlier encounter at the parking lot Brewer had said, “I ought to kill you.” Bill asserts that this record contains uncontradicted and conclusive evidence that he was acting in self-defense when he shot and killed Brewer.

A review of the evidence, including that of Bill and his companion Shirley, shows that it was not conclusive that Bill was acting in self-defense. While both of them testified that Brewer reached back as if to get a weapon, their testimony showed that Bill had left the scene with a gun tucked in his belt, approached Brewer’s car, and shot him. Bill shot Brewer downwardly through the open window of his car. The bullets entered Brewer from the back, not the front. How then, do these facts show conclusive proof of self-defense?

Coupled with those facts was the testimony of the city marshal who was present when Bill shot Brewer. The marshal testified that Brewer never left the car. It is not logical that a man claiming self-defense would return to the scene of a fight if he wanted to avoid trouble. If perchance he saw his protagonist, he would retreat in order to avoid confrontation. That is not evidence of self-defense, but of murder or a lesser degree of homicide. Thus, it was an issue for the jury. In any event, Bill’s counsel failed to move for a directed verdict. Because no motion for a directed verdict was made, there was no error. There was sufficient evidence to nullify the assertion of self-defense. The issue was properly submitted to the jury and there was ample evidence in the record to support its finding. Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977).

Bill’s next complaint is that the court’s instructions on first-degree manslaughter and self-defense were defective. Bill’s trial counsel neither offered any instructions nor objected to those given by the trial court. Thus there is no error for this court to review. RCr 9.54, Lynem v. Commonwealth, Ky., 565 S.W.2d 141 (Decided this date).

Two of Bill’s other arguments also represent matters which were not brought to the attention of the trial court. It is argued that the prosecutor’s closing argument was improper in that it did not fairly represent the evidence at trial. Because the trial judge had no opportunity to rule on the matter, there was no error. However, the argument is not inflammatory nor is it misleading.

Bill also contends that the court should have excluded his “confession” from the jury’s consideration. The statement was not a formal confession, but merely an oral statement made by Bill to State Detective Ison. Ison testified that he advised Bill of his constitutional rights. Ison’s testimony consisted of a case report of his investigation. There was no objection that the statement was involuntary because of Bill’s alleged intoxication. Since this matter was not presented to the trial court for consideration, there was no error. In any event, the statements were not any more prejudicial than Bill’s own testimony at the trial.

Bill’s next argument is that as a consequence of his trial counsel’s failure to make proper objections so as to preserve matters for appellate review, he was deprived effective assistance of counsel. The record reflects that trial counsel failed to make certain objections and motions which should have been made. However, the record does not show trial counsel’s performance to be such as to shock the conscience of the court so as to render the proceedings a farce and mockery of justice. Berry v. Commonwealth, Ky., 490 S.W.2d 741 (1973).

It is apparent in this case, and in too many others that pass in review before this court, that the public defender simply sifts out a trial record to find “error.” Then the strategy is to allege that an error has occurred regardless of the fact that the trial defense counsel did not contend it was error, or for reasons of trial tactics, decided not to do so and then allege that these errors should have been preserved and thus try to convince this court that trial counsel was ineffective. This writer calls to mind an apt quatrain that best describes such situations as that presented here:

“Oh wad some power the giftie gie us To see our seis as others see us!
It would frae monie a blunder free us, An’ foolish notion.”

This court recently phrased it in this fashion:

“It is easy for brilliant young lawyers to flyspeck a trial record and pick out flaws in the manner in which it was practiced.”

In any event, the issue of ineffective assistance of counsel was not raised by a proper motion in the lower court and is raised for the first time on appeal and is not properly before this court.

Bill’s final argument is that the mandatory sentencing procedures of KRS 532.Ó50 were not followed. He specifically cites that section which provides:

“Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed.” KRS 532.050(4).

Bill correctly cites language in Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977), which states that KRS 532.050 is mandatory and that “the record of the proceedings should clearly disclose the fact that the trial court has fully complied with 532.050 . .” Brewer, supra, at 476. The Commonwealth cannot seek solace in Shannon v. Commonwealth, Ky., 562 S.W.2d 301 (Decided January 10, 1978). Shannon, supra, was modified February 21, 1978. In the modification, this court held: “The record reflects that the appellant (Shannon) was sentenced in the manner as required by KRS 532.050.”

The record in this case reflects that the trial court failed to comply with the mandate of KRS 532.050. Therefore, the judgment must be vacated and the case remanded for resentencing in conformity with Brewer, supra.

The judgment is vacated and the cause remanded to the Wolfe Circuit Court for resentencing. In all other respects, the judgment is affirmed.

All concur.

      . The evidence conflicts as to who returned to the lot first. At trial Bill testified that Brewer pulled into the lot at the same time he did. Shirley testified that Brewer was there first but she had given an earlier statement that she and Bill drove into the lot before Brewer did.

      . Bill asserts that the dispute was over a gun Brewer had stolen from American Coal Company. There was no other evidence of such a gun.

      .The trial actually did not begin on April 19. The trial court found that it was impossible to select an impartial jury from Wolfe County. The trial began one day later after a jury from Powell County was selected and sworn.

      . Robert Burns, To A Louse (1786) St. 8.

      . Meadows v. Commonwealth, Ky., 550 S.W.2d 511 (1975).


author: HAYES, Judge.

text:
    MOBILE WASH OF LOUISVILLE, INC., Appellant, v. Sherman LOVITT, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Opinion Rendered Feb. 17, 1978.
    Rehearing Denied April 14, 1978.
    Ordered Published April 28, 1978.
    James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant.
    Erwin A. Sherman, Louisville, for appel-lee Lovitt.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellee Special Fund.
    Before HAYES, REYNOLDS and VANCE, JJ.
   HAYES, Judge.

This is an appeal of a judgment entered by the Jefferson Circuit Court which affirmed a decision of the Workmen’s Compensation Board.

The claimant, Sherman Lovitt, was employed by Mobile Wash of Louisville, Inc. as a tank car cleaner. In the course of his employment on July 22, 1976, he was assigned to clean the inside of a tank car which contained a highly toxic chemical called P-ethoxynitro-benzene. Claimant had spent approximately three (3) hours cleaning the tank car.

Shortly after leaving work, the claimant was overcome from the effects of his exposure to the chemical and was rushed to the Emergency Room of Louisville’s Norton-Children’s Hospital.

At the hospital, claimant was having respiratory problems. He began to turn blue. Later, he had a convulsion and cardiac arrest. His breathing and heartbeat ceased altogether for about four (4) minutes until he was resuscitated.

Claimant’s physician, Dr. James Bryan, diagnosed Lovitt’s illness as being methe-moglobienemia, a condition which prevents the blood from carrying oxygen to body organs and tissues.

Dr. Bryan testified that this condition was brought about by the interaction of claimant’s blood chemistry with that of the toxic chemical in the tank car.

The medical evidence, which is uncontested by the employer, established that the claimant has received damage to his brain as a result of a work related injury which has left him totally and permanently disabled.

The Special Fund was joined in as a defendant in this action under KRS 342.-316(13)(a). The Board in its Opinion and Award of October 11,1976, found the claimant to be permanently and totally disabled. The Board then assessed all liability against the employer and dismissed the Special Fund as a defendant therein.

Subsequently, the employer, Mobile Wash of Louisville, Inc. filed a Petition for Review with the Jefferson Circuit Court. The Board’s Opinion and Award was affirmed by the Jefferson Circuit Court on May 24, 1977. Appellant, Mobile Wash of Louisville, Inc. then brought this appeal.

The question presented to this court is whether or not the claimant, Sherman Lov-itt, is suffering from an occupational disease within the meaning of KRS 342.-316(13)(a) which states:

. In all other cases of occupational diseases, other than silicosis or any other compensable pneumoconiosis, which developed to the point of disablement only after an exposure of five (5) or more years, or for non-coal worker’s silicosis and any other compensable pneumoconio-sis, the compensation for disability or death due to such diseases shall be paid jointly by the employer and the special fund, and the employer shall be liable for sixty percent (60%) of the compensation due and the special fund shall be liable for forty percent (40%) of the compensation due.

Appellant contends that it was erroneous for the Board to hold it liable for 100% of the compensation due the claimant and to dismiss the Special Fund as a party defendant since the claimant’s disability arose from an occupational disease.

Appellant contends that the medical evidence submitted to the Board clearly substantiates the fact that claimant is suffering from an occupational disease. Appellant’s brief, for example, cites a portion of Dr. James Bryan’s testimony as follows:

... MR. SHERMAN: Let me object to the word disease. You might ask him if this is in fact a disease.
A Yes, it’s a disease resulting from a physical agent.
149 And since he was subjected to this in his employment, in his occupation and since it resulted by the method you have described, you would characterize it as an occupational disease, would you not?
A Yes. . . .

Appellee, Special Fund, contends that the Board properly found claimant’s disability to have been caused by “an injury of appreciable proportions as the result of his accident of July 22, 1975,” which would make the employer liable for 100% of the compensation due the claimant. Therefore, appel-lee, Special Fund, denies appellant’s contention that the claimant has an occupational disease.

KRS 342.620(2)(a) defines occupational disease as thus:

(2) “Occupational disease” means a disease arising out of and in the course of the employment.
(a) A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause. The disease shall be incidental to the character of the business and not independent of the relationship of employer and employee. The disease need not have been foreseen or expected but, after its contraction, it must appear to be related to a risk connected with the employment and to have flowed from that source as a rational consequence.

In Kentucky, the earliest workmen’s compensation benefits were limited to injuries which were sustained in accidents arising in the course of employment.

Occupational diseases were noncompensa-ble, but diseases which were the direct result of a traumatic injury arising in the course of employment were compensable under an exception to this general rule. Occupational diseases did not become com-pensable generally in Kentucky until the enactment of KRS 342.316 in 1962, Princess Manufacturing Company v. Jarrell, Ky., 465 S.W.2d 45 (1971).

Occupational diseases have long been held under Kentucky law to be those diseases which are developed gradually and which are not sudden in their onset, Kentucky Stone Company v. Phillips, 294 Ky. 576, 172 S.W.2d 216 (1943).

It is obvious to this court that Lov-itt’s disability is not the result of an occupational disease; but it is instead the result of a sudden traumatic injury.

KRS 342.620(2)(a) requires that for a disease to be an occupational disease it must be seen “to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment”.

In this case, Lovitt’s sudden massive exposure to the toxic chemical was accidental- and unforeseen. It was not a natural incident of his employment. It was an unnatural occurrence. Otherwise, who would seek such an occupation?

Larson has contrasted occupational diseases with accidental injuries as follows:

. the two crucial points of distinction between accidental and occupational disease were the element of unexpectedness and the matter of time-definiteness. What set occupational diseases apart from accidental injuries was both the fact that they could not honestly be said to be unexpected, since they were recognized as an inherent hazard of continued exposure to conditions of the particular employment, and the fact that they were gradual rather than sudden in onset. Thus, what would ordinarily be an occupational disease might be converted to an accident by an unusual and sudden dosage of the same kind of dust or fumes that, absorbed gradually over a long period, would produce typical industrial disease. (A. Larson, Workmen’s Compensation Law, § 41.31 (1975)).

Therefore, the appellant must be held totally responsible for the compensation paid to Lovitt since his disability is not the result of an occupational disease.

The judgment of the Jefferson Circuit Court is affirmed.

All concur.


author: PARK, Judge.

text:
    Randy E. ABRAHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1977.
    As Modified Nov. 18, 1977.

      Charles W. Curry, Shuffett, Kenton, Curry & Karem, Lexington, for appellant.
    Robert Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
    Before PARK, WHITE and WINTER-SHEIMER, JJ.
   PARK, Judge.

Randy E. Abraham appeals from an order of the Breathitt Circuit Court overruling his motion to reduce bond on three indictments for theft by unlawful taking (KRS 514.030). This appeal presents important questions of procedure and substance relating to the 1976 Bail Bond Reform Act. Because of the exigencies of time, the mandate was issued September 23, 1977, pursuant to a memorandum opinion, with the understanding that the reasons for the decision would be set forth in a full opinion.

On August 18,1977, the Breathitt County Grand Jury returned three indictments against Abraham charging him with the crime of theft by unlawful taking of property belonging to W. R. Walters, the property being worth more than $100.00. Indictment No. 1995 charges Abraham with the theft of two truck tires on May 15, 1977. Indictment No. 1996 charges him with the theft of a water pump on May 7, 1977. The third indictment (No. 1997) charges Abraham with the theft of seven heavy equipment batteries on April 15, 1977. The circuit judge fixed bond on each indictment at $25,000.00.

Following his arrest on August 24, 1977, Abraham filed a motion to reduce the amount of the bond on the three charges. The trial judge overruled the motion by order entered September 13, 1977. This order recited that it was a final order and that the court’s ruling would be the same on a writ of habeas corpus based upon the same record. On September 15,1977, Abraham filed a notice of appeal from the order of September 13, 1977, overruling his motion to reduce bond.

MAY THERE BE A DIRECT APPEAL FROM AN ORDER OVERRULING A MOTION TO REDUCE BAIL?

Abraham’s counsel acknowledges that the writ of habeas corpus has been the recognized method of reviewing an order denying or refusing to reduce the amount of bail in a criminal proceeding. Young v. Russell, Ky., 332 S.W.2d 629 (1960); Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666 (1944). However Abraham’s counsel advances a number of reasons why the writ of habeas corpus does not provide an adequate vehicle for reviewing the action of a circuit court overruling a motion to reduce bond.

A writ of habeas corpus may be issued by any circuit judge in the state (KRS 419.020), but the writ must be returned before the circuit judge of the county in which the person is being detained (KRS 419.030). Consequently, if Abraham had filed a petition for writ of habeas corpus, the merits of the writ would have been heard by the same judge who had previously overruled his motion to reduce the amount of bond. By the order of September 13,1977, the circuit judge made it clear that there would be no change in his ruling if the same issue were presented by a writ of habeas corpus. To require Abraham to file a writ of habeas corpus would be to require him to do a useless and futile act which could only accomplish delay.

Furthermore, the writ of habeas corpus involves several practical difficulties in bail cases. The respondent is usually the jailer, a person totally disinterested in the merits of the matter. The writ of habeas corpus constitutes a separate proceeding. When an appeal is taken from the judgment on a writ of habeas corpus, there is always the problem of including the record in the original proceeding which gave rise to the writ.

In Kentucky, an order overruling a motion to reduce bond has not been considered to be a final judgment. Hence, such orders have not been deemed to be appealable. See the 1962 Comment to Rule 4.14 of the Rules of Criminal Procedure. However, a different result was reached when the Supreme Court of the United States considered the question in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Under 28 U.S.C. § 1291, the federal courts of appeals generally have jurisdiction of appeals from “all final decisions” of the federal district courts. In holding that appeal rather than habeas corpus was the appropriate remedy for reviewing an order refusing to reduce bail, the Supreme Court stated:

The proper procedure for challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the Court of Appeals from an order denying such motion. Petitioners’ motion to reduce bail did not merely invoke the discretion of the District Court setting bail within a zone of reasonableness, but challenged the bail as violating statutory and constitutional standards ... As there is no discretion to refuse to reduce excessive bail, the order denying the motion to reduce bail is appealable as a “final decision” of the District Court under 28 U.S.C. (Supp. IV) § 1291, 28 U.S.C.A. § 1291. Cohen v. Beneficial Industrial Loan Corp., 1949, 837 U.S. 541, 545-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528. In this case, however, petitioners did not take an appeal from the order of the District Court denying their motion for reduction of bail. Instead, they presented their claims under the Eighth Amendment in applications for writs of habeas corpus. While habeas corpus is an appropriate remedy for one held in custody in violation of the Constitution, 28 U.S.C. (Supp. IV) § 2241(c)(3), 28 U.S.C.A. § 2241(c)(3), the District Court should withhold relief in this collateral habeas corpus action where an adequate remedy available in the criminal proceeding has not been exhausted. Ex parte Royall, 1886, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Johnson v. Hoy, 1913, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497.

342 U.S. at 6-7, 72 S.Ct. at 4. In his concurring opinion, Justice Jackson pointed out:

. But an order fixing bail can be reviewed without halting the main trial-— its issues are entirely independent of the issues to be tried — and unless it can be reviewed before sentence, it never can be reviewed at all. The relation of an order fixing bail to final judgment in a criminal case is analogous to an order determining the right to security in a civil proceeding, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, or other interlocutory orders reviewable under 28 U.S.C. § 1292, 28 U.S.C.A. § 1292. I would hold, therefor, that such orders are appealable.

342 U.S. at 12, 72 S.Ct. at 7. We believe that the decision of the Supreme Court holding such orders appealable is sound, and we adopt it.

A similar problem was considered by this state’s highest court in Gabbard v. Lair, Ky., 528 S.W.2d 675 (1975). In that case, the court held that appeal, rather than writ of mandamus, was the proper remedy for reviewing an order denying a criminal defendant’s motion to proceed in forma pau-peris on appeal. The court stated:

This court has concluded that the “motion to show cause” proceedings and the “mandamus” proceedings do not adequately present for consideration by this court the question of a party’s right to appeal in forma pauperis. Seldom does the record contain a sufficient transcript or other showing of evidentiary material upon which the circuit court order was based, thereby causing this court to rely on recitations of fact to be gleaned from the motion, the petition, and any response that may have been filed. There is the ever-present danger that the time within which the principal record on appeal must be filed will expire before a determination is forthcoming on the question of appellant’s right to prosecute the appeal in forma pauperis.

528 S.W.2d at 677. Not only does the Gab-bard case support a liberal approach to the question of appealable orders in criminal cases, but that opinion provides helpful guidelines for the procedures to be followed on appeal.

If the time sequence of an ordinary appeal were followed on an appeal from an order involving bail, there would be very little practical value to that right of appeal. The defendant would remain in jail, and his case might be tried while the appeal was being briefed and oral argument was being scheduled. As adopted as a part of the judicial article effective January 1, 1976, § 115 of the Kentucky Constitution dictates that appellate procedures shall provide for “expeditious and inexpensive appeals.” Therefore, an appeal from an order overruling a motion to reduce bail should be decided as soon as practicable. The motion to reduce bond serves the same function as a petition for a writ of habeas corpus. Therefore there is no reason why an appeal from the order overruling the motion should not be decided in the same manner as an appeal from a denial of a writ of habeas corpus. See KRS 419.130.

Based on the guidelines set forth in Gab-bard v. Lair, supra, we hold that, unless otherwise ordered, the following procedures shall apply to an appeal from an order of circuit court overruling a motion to reduce bail:

(1) The notice of appeal from the order of the trial court overruling the motion to reduce bail shall be filed as required by RCr 12.52 and within the time fixed by RCr 12.54.
(2) Upon the filing of the notice of appeal, the clerk of the circuit court shall prepare and certify the original or a copy of such portion of the record which relates to the question of bail and is needed for the purpose of deciding the issue on appeal. See RCr 12.56 and 12.62. The abbreviated record shall be filed with the clerk of this court as required by RCr 12.- • 58.
(3) The appellant’s statement required by RAP 1.095 shall be abbreviated and shall not exceed five double spaced typewritten pages. It shall be served on the local Commonwealth’s Attorney and on the Attorney General. No counterstatement shall be required, but the Commonwealth may file a counterstatement within seven days after the date the appellant’s statement was filed, such counters-tatement not to exceed five double spaced typewritten pages. No other briefs need be filed unless requested by the court.
(4) The appeal shall stand submitted for final disposition seven days after the date on which the appeal was perfected by the appellant.
(5) Neither the filing of the notice of appeal nor the pendency of the appeal shall stay further proceedings in the prosecution.

The writ of habeas corpus still remains the proper method for seeking circuit court review of the action of a lower court respecting bail. In many cases, there may be no order of the lower court even though there might be a violation of the Bail Reform Act. The writ of habeas corpus would be the only feasible means of raising the question of the defendant’s illegal detention.

DID THE CIRCUIT COURT ERR IN ITS ORDER OVERRULING THE MOTION TO REDUCE BOND?

The only evidence considered by the circuit judge on the issue of bail was the affidavit of Abraham which was made a part of the record by stipulation. Abraham’s affidavit set forth' the following facts:

That he is twenty-six (26) years of age; that he was born on July 25, 1951, in Richmond, Indiana; that he has an eighth-grade education; that he has resided in the Commonwealth of Kentucky for approximately seven (7) years (five years in Lexington, Kentucky, and two years in Richmond, Kentucky); that he presently resides in Richmond, Kentucky at Route 3, Blue Grass Homes, # 61, 40475, Phone: (606) 623-8234; that he is married (approximately eight years) and has two female children, ages three and five; that he has regular employment with ALL TRUCK RENTAL, of Lexington, Kentucky as per the letter attached hereto; that he has a prior felony conviction, attempted arson, for which he was sentenced to two-2 to 4 years in Montgomery County, Ohio in 1969; that he is presently lodged in the Breathitt County jail and has been in same since the 24th day of August, 1977 on the indictments herein; that the total value of the material alleged to have been taken has been agreed by the Commonwealth and counsel for the defendant to have an aggregate value of approximately One Thousand ($1,000.00) dollars; that said property has been recovered; that the defendant is unable to raise the Seventy-Five Thousand ($75,000.00) dollars in bail set by the Court and that his incarceration prohibits working, and that he has no property or funds with which to make same; that he would be able to raise approximately Two Thousand ($2,000.00) dollars from friends and relatives for the purpose of bail; that he has never failed to appear in Court while on bond and that should reasonable bond be allowed, he would make any and all appearances Ordered by the Court.

The circuit court made no findings of fact in overruling the motion to reduce bond. As a basis for overruling Abraham’s motion, paragraph (3) of the order entered September 13, 1977, stated:

That the bond set herein of Twenty-Five Thousand ($25,000.00) dollars on each count is the bond always set by this Court in theft and related cases, .

The correctness of this order must be considered in the light of the appropriate statutes and procedural rules.

In the order of September 13, 1977, the trial court made no finding, as required by KRS 431.520 and RCr 4.10, that releasing Abraham on his own recognizance or upon an unsecured bail bond would not reasonably assure his appearance at trial. The order reflects that the trial court considered only the nature of the offenses in fixing the amount of bail. This is a proper factor to consider in fixing the amount of bail. However, under KRS 431.-525 (1) and RCr 4.16(1), the trial court is also required to consider the defendant’s past criminal record, his reasonably anticipated conduct if released, and his financial ability to give bail. In the present case, the order of September 13, 1977, does not indicate that the trial court considered Abraham’s length of residence in Kentucky and at his present address, his marital status, his employment record, the date and nature of his prior criminal record, or his ability to raise $75,000.00 in bail. All of these factors would be relevant to a determination of the conditions of Abraham’s release. See the annotation, 78 A.L.R.3d 780. In addition, the order provides no basis for believing that $75,000.00 bail is the least onerous condition reasonably likely to insure Abraham’s appearance at trial. RCr 4.12.

Great discretion is vested in the circuit judge respecting bail. When there has been an exercise of discretion by the circuit judge in fixing bail, that decision will not be disturbed by this court on appeal. Long v. Hamilton, Ky., 467 S.W.2d 139 (1971). However, the record should demonstrate that the circuit judge did in fact exercise the discretion vested in him under the statutes and rules. In the present case, the record shows only that the circuit judge always sets the bond at $25,-000.00 on every theft charge. This does not constitute the exercise of judicial discretion. See Wyatt v. Ropke, Ky., 407 S.W.2d 410 (1966). Even though the circuit judge had discretionary authority respecting bail, the record should clearly reflect that the circuit judge did give consideration to KRS 431.520 and RCr 4.10 and that the amount of any bail was determined according to the standards set forth in KRS 431.525 and RCr 4.16(1). See Brewer v. Commonwealth, Ky., 550 S.W.2d 474, 478 (1977). If there is to be meaningful appellate review, either the order or the record of the hearing should contain a statement of the circuit judge’s reasons for refusing to reduce bail. Cf. Hubbs v. Commonwealth, Ky., 511 S.W.2d 664, 666 (1974); Lee v. Commonwealth, Ky.App., 547 S.W.2d 792, 794 (1977); Weaver v. United States, 131 U.S. App.D.C. 388, 389, 405 F.2d 353, 354 (D.C. Cir.1968).

For the foregoing reasons, this court on September 23, 1977, reversed the order of the trial judge entered September 13, 1977. The case was remanded to the circuit court with directions to release Abraham on his own recognizance or on an unsecured bail bond within seven days unless the circuit

court, in the exercise of its discretion should set bail in compliance with the provisions of KRS 431.520, KRS 431.525 and RCr 4.00 et seq.

All concur.

      . KRS 431.520 provides:
      Any person charged with an offense shall be ordered released by a court of competent jurisdiction pending trial on his personal recognizance or upon the execution of an unsecured bail bond in an amount set by the court or as fixed by the Supreme Court as provided by KRS 431.540, unless the court determines, in the exercise of its discretion that such a release will not reasonably assure the appearance of the person as required. When such a determination is made, the court shall, either in lieu of or in addition to the above methods of release, impose any of the following conditions of release:
      (1) Place the person in the custody of a designated person or organization agreeing to supervise him;
      (2) Place restrictions on the travel, association, or place of abode of the person during the period of release;
      (3) Require the execution of a bail bond:
      (a) With sufficient personal surety or sureties acceptable to the court; in determining the sufficiency of such surety, or sureties, the court shall consider his character, his place of residence, his relationship with the defendant and his financial and employment circumstances; or
      (b) With the 10% deposit as provided in KRS 431.530; or
      (c) With the deposit of cash equal to the amount of the bond or in lieu thereof acceptable security as provided in KRS 431.535;
      (4) Impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours; (emphasis added).
      RCr 4.10 provides:
      A defendant shall be released on personal recognizance or upon an unsecured bail bond unless the court determines, in the exercise of its discretion, that such release will not reasonably assure the appearance of the defendant as required. In the exercise of such discretion the court shall give due consideration to recommendations of the local pretrial services agency when made as authorized by order of the Supreme Court, (emphasis added).

      . KRS 431.525 provides:
      (1) The amount of the bail shall be:
      (a) Sufficient to insure compliance with the conditions of release set by the court;
      (b) Not oppressive;
      ■ (c) Commensurate with the nature of the offense charged;
      (d) Considerate of the past criminal acts and the reasonably anticipated conduct of the defendant if released; and
      (e) Considerate of the financial ability of the defendant.
      RCr 4.16(1) provides:
      The amount of bail shall be sufficient to insure compliance with the conditions of release set by the court. It shall not be oppressive and shall be commensurate with the gravity of the offense charged. In determining such amount the court shall consider the defendant’s past criminal acts, if any, his reasonably anticipated conduct if released and his financial ability to give bail.

      . RCr 4.12 provides:
      If a defendant’s promise to appear or his execution of an unsecured bail bond alone is not deemed sufficient to insure his appear-anee when required, the court shall impose the least onerous conditions reasonably likely to insure his appearance as required.


author: HOGGE, Judge:

text:
    AMERICAN STANDARD, INC., Appellant, v. Will STEPHEN, Jr., and James R. Yocom, Commissioner of Labor and Custodian of the Special Fund and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Jan. 6, 1978.
    Discretionary Review Denied May 16, 1978.

      Irvin Abell, III, Brown, Todd & Heyburn, Charles S. Cassis, Louisville, for appellants.
    Robert M. Lindsay, Segal, Isenberg, Sales, Stewart & Nutt, Cyril E. Shadowen, Dept, of Labor, Louisville, for appellees.
    Before HOGGE, PARK and REYNOLDS, JJ.
   HOGGE, Judge:

This is an appeal from a judgment of the Jefferson Circuit Court in a workmen’s compensation case wherein, the circuit court affirmed an award of total disability to the claimant but declared that portion of the order of the board a nullity, which apportioned the award of fifty percent to the employer and fifty percent to the Special Fund. The court held that the Special Fund was not properly joined as a party and could therefore not be held liable.

The claimant, Will Stephen Jr., was disabled as a result of a work related injury suffered on May 29, 1973, while employed by the appellant, American Standard Inc. Thereafter, on March 18,1974, claimant entered into an agreement with the appellant and the claim was settled for twenty-eight weeks of temporary total disability benefits. The Special Fund was not a party to this agreement. This agreement was approved by the board.

On December 2, 1974, Stephens filed a motion to reopen his claim. This motion was overruled by the board on December 16, 1974. He filed a second motion to reopen his claim on January 3, 1975, which motion was sustained by the board on March 3, 1975. Subsequently, appellant filed two motions to join the Special Fund as a party, copies of which were served on the Special Fund. The board overruled the first of such motions on January 12, 1976, but sustained the second motion on March 22, 1976.

After the motion to reopen was sustained, considerable medical proof was taken, some of which was to the effect that the claimant had a pre-existing emotional condition that was brought into a disabling reality by the injury. The board appointed doctor reported similarly. The Special Fund was furnished a copy of this report. The Fund filed its brief prior to the award on the reopening.

In its opinion and award of August 16, 1976, the board found as follows:

(a) Claimant suffered no active occupational disability prior to May 29, 1973.
(b) Solely as a result of the work-related injury of May 29, 1973, claimant is occupationally disabled to the extent of 50%.
(c) Prior to May 29, 1973, claimant had a dormant non-disabling disease or condition which was aroused into disabling reality to the extent of 50% occupational disability.

The Special Fund then appealed this award to the Jefferson Circuit Court. That court affirmed the total disability award, but held that since the Fund was not made a party to the original action and had no opportunity to defend itself, the award against the Special Fund was nullified. The entire award was thus assessed against the appellant.

The sole question raised on this appeal is whether or not the circuit court erred when it held the order of the board, as to apportionment of the award, to be a nullity for the reason the Special Fund was not properly joined as a party defendant.

The Special Fund says this holding of the circuit court is correct because KRS 342.265 is controlling, which provides that when the compensation agreement was finalized by board approval, the award was then final; pursuant to KRS 342.120, the Fund could then no longer be made a party to that award or any future proceedings based on the same injury; and, KRS 342.125 is not controlling on the issue of apportionment but is governed by KRS 342.120, and if its requirements are not met the board is precluded from making the Fund a party.

Because of factual and procedural differences in the eases cited and the instant case, we do not find that the two cases cited by appellee, Yocom v. Jordan Auto Parts, Ky., 521 S.W.2d 519 (1975) and Yocom v. Milish, Ky., 497 S.W.2d 702 (1973) support this position.

In Yocom v. Jordan Auto Parts, supra, the employer had filed an “Application for Adjustment of Claim” against the Special Fund seeking reimbursement for an award of disability benefits it had agreed to pay the employee. This agreement had become a final award by approval of the board. KRS 342.265. The board and the appellate court correctly held that there was no case pending before the board on behalf of the employee; therefore, the employer was without authority to make the Special Fund a party. Here, there was a case pending before the board on behalf of the injured employee.

In Yocom v. Milish, supra, the board had made an award of one hundred percent (100%) disability, eighty percent (80%) against the Special Fund and twenty percent (20%) against the employer. Three months later the board discovered that the Special Fund had never been made a party, and on its own motion set aside the opinion and award on the grounds of mistake. The board then made the Special Fund a party, appointed a physician, and proceeded to re-litigate the case, and made another award assessing all liability against the employer. The court held in this case that “mistake” within the meaning of the statute precluded the board from retrying the case. There was nothing relative to this claim pending before the board at the time of the order making the Special Fund a party. Here, the amount of disability and award was pending before the board as the case had been reopened.

In Milish, supra, the case had been tried on its merits, an award had been entered, and there had been no appeal; therefore, the board had no authority to set aside its award and bring in the Special Fund. Yo- com v. Milish, supra, was not a case involving KRS 342.125(2), but instead was a case involving an award made on a litigated record.

When considered together and separately as well, we find the statutes involved here, KRS 342.120 and KRS 342.125, are disposi-tive of the issues in this case. These statutes provide as follows:

KRS 342.120

(1)A claimant may in the original application for benefits, or either party may by motion while the case is pending, accompanied by proper allegations, and the board shall upon its own motion at any time before the rendition of the final award, cause the special fund to be made a party to the proceeding if either or both of the following appears:
(a) The employe is disabled, whether from a compensable injury, occupational disease, pre-existing disease, or otherwise, and has received a subsequent compensable injury by accident, or has developed an occupational disease;
(b) The employe is found to have a dormant non-disabling disease or condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury by accident or an occupational disease.

KRS 342.125-

(1) Upon its own motion or upon the application of any party interested and showing of change of conditions, mistake or fraud or newly discovered evidence, the board may at any time review any award or order, ending, diminishing or increasing the compensation previously awarded, within the maximum and minimum provided in this chapter, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Review under this section shall be had upon notice to the parties interested and shall not affect the previous order or award as to any sums already paid thereunder. However, the employer shall not suspend the payment of benefits during the pendency of any reopening procedures.
(2)Where an agreement has become an award by approval of the board, and a review of such an award is initiated, no statement contained in the agreement, whether as to jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter, shall be considered by the board as an admission against the interests of any party. The parties may raise any issue upon review of this type of award which could have been considered upon an original application for benefits. [Emphasis ours.]

Clearly, the claimant met the requirement of KRS 342.125 in getting his case reopened for review. This question is not raised on this appeal. Section (2) of KRS 342.125 is applicable here, and it provides when a review of an award such as here is initiated, no statement in the agreement may be considered by the board as an admission against interest and that, “the parties may raise any issue upon review of this type of award which could have been considered upon an original application for benefits.”

We take this section of the statute to mean just what it says: “parties may raise any issue upon review of this type of award which could have been considered upon an original application . . . ” KRS 342.120 provides that the Special Fund may be made a party in the original application or by motion of any of the parties or the board itself prior to the final award.

Certainly, making the Special Fund a party and considering apportionment of an award is an issue that can be raised or considered upon an original application for benefits. If it is, and by statute it is, then that issue can be considered in a proceeding such as we have in the case before us; KRS 342.125 so provides.

True, KRS 342.265, made the settlement agreement herein a final award when it was approved by the board. Final award as used herein means it is an enforceable award of the board. It does not forever preclude all other actions that may be taken in connection with that award, such as review or reopening pursuant to KRS 342.125.

Prior to entering into the agreement, the employee had no opportunity to make the Special Fund a party, as the agreement and award were for temporary-total disability. Once the employee discovered the true nature and extent of his disability, he sought to make the Special Fund a party at his first opportunity to do so.

Here, the Special Fund was served copies of a motion to make it a party; it was furnished copies of medical reports; it filed a brief before the board; and, it had an opportunity to defend itself and did so to some degree.

Under these circumstances, where there was no evidence that either party withheld any information from the other nor had any information other than that which appears of record, we find that the board correctly reopened the award, made the Special Fund a party, and apportioned the award.

That portion of the judgment of the circuit court affirming the total disability award is affirmed; that portion of the judgment declaring the order of the board joining the Special Fund as a party to be a nullity is in error and is reversed, with directions to the trial court to amend its judgment in accordance with this opinion by reinstating the apportioned award of the board.

All concur.