author: SHANNON, Justice.

text:
    Joseph L. THOMPSON, a minor, Appellant, v. The STATE of Texas, Appellee.
    No. 12574.
    Court of Civil Appeals of Texas, Austin.
    June 1, 1977.
    Rehearing Denied June 22, 1977.
    Ronald A. Piperi, Piperi, Roberts & Morris, Killeen, for appellant.
    Patrick J. Ridley, County Atty., Bell County, Thomas S. Morgan, Asst. County Atty., Belton, for appellee.
   SHANNON, Justice.

This appeal is from the judgment of the juvenile court of Bell County waiving its exclusive original jurisdiction and transferring appellant, Joseph L. Thompson, to district court for criminal trial. We will affirm the judgment.

The State alleged that on June 11, 1976, Thompson committed rape, aggravated sexual abuse, aggravated robbery, aggravated kidnapping, and unauthorized use of a motor vehicle in Bell County. On that date, Thompson was fifteen years of age.

By two points of error appellant seeks to reverse the judgment. Appellant’s first point is that the court’s finding that there was little prospect of adequate protection of the public and the rehabilitation of the child by the use of procedures, services, and facilities currently available to the juvenile court was contrary to the great weight and preponderance of the evidence.

Texas Family Code Ann. § 54.02(f) (1975) provides that the juvenile court, in determining whether to waive its exclusive original jurisdiction and to transfer the child to district court for criminal trial, “. shall consider, among other matters:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.” To understand the point of error, the

facts are summarized. Appellant’s callous reign over the lives of others commenced during the early morning hours of June 11, 1976. Witness Y_was awakened by a stranger, appellant, knocking at the door of his apartment. Appellant told Y_ that someone had tried to steal Y-’s motorcycle. When Y_ went outside, appellant pointed a pistol and demanded money. Y_gave money to appellant. Appellant then commanded that Y-start the motorcycle. When the machine failed to start, appellant ordered Y_ at gunpoint to repair the machine.

During the time Y_was working on the motorcycle, witnesses M_ and R_ drove up. Appellant charged Y_that if Y_thought “. anything of your life and you think anything of their lives then you will play it cool.” Appellant then put the pistol in his pocket.

R_ went into her apartment. M_remained outside to assist Y_ in the repair work. Appellant at that time brandished the firearm and demanded M_⅛ money. M_tossed his wallet to him. Using Y_, appellant gained entrance to R_⅛ apartment. Appellant instructed Y_, M_, and R_ to sit on the couch, and he directed R_ to empty her purse for him.

Appellant commanded R_to disrobe and ordered M- and Y_ to lie face down on the floor. Appellant forced R_ at gunpoint to engage in sexual intercourse with him. Afterward, appellant demanded that Y-remove his clothing and have intercourse with R_ Y_, in obedience to appellant’s dictates, simulated intercourse with R_, as did M_a few minutes later when appellant ordered him to have intercourse with R_Then appellant instructed M_ to get back on the floor, saying “. . .1 ought to kick your damn face in.”

After a period of aimless talk, appellant obtained the keys to R_⅛ car and ordered M_to go with him as a hostage. Appellant enjoined R_ and Y_ before he departed that if they ever hoped to see M_again, they should not call the police.

Acting under appellant’s orders, M_ commenced driving the car. Shortly thereafter, members of the Killeen Police Department gave chase. During the chase M_jumped from the car, but appellant gained control of the steering wheel and eluded the pursuing police. Appellant was finally arrested by military police on the Fort Hood reservation.

At trial the State called several witnesses, one being Frankie Eckroyd, the “Intake Officer” for the Bell County Juvenile Probation Office. As a part of the responsibilities of her position, Eckroyd had prepared a social evaluation and investigation concerning appellant. Based upon her investigation of appellant’s situation and her knowledge of the facilities of the Texas Youth Council, the witness was of the opinion that the procedures and facilities available to the Council would not tend to rehabilitate appellant.

The State also called Larry Wendall Hays, a clinical psychologist, who had prepared a diagnostic study of appellant. During the course of his testimony, Dr. Hays testified that he had not observed a disposition on appellant’s part to try and help rehabilitate himself.

In this connection it is of some importance to the resolution of this matter, that appellant has a history of aggressive and belligerent behavior. Those character traits were particularly pronounced during the past school year.

The evidence was that the facilities of the Texas Youth Council are “open-door” institutions. A juvenile committed to one of those institutions may easily escape if he wishes to do so. The evidence tended to show that appellant would choose to escape from an institution that was not guarded.

There was some testimony in support of appellant’s position that appellant could be rehabilitated by the current services available to the juvenile court.

The court’s order shows that the matters listed in § 54.02(f)(6) were considered and the order gives specific reasons for the waiver. Appellant’s misdeeds were done in an aggressive manner over a sustained period of time. The infamous nature of appellant’s acts reflects unfavorably upon the chances for appellant’s rehabilitation. We have previously summarized much of the evidence from which the court could have reasonably concluded that the public would not have been adequately protected by an attempted rehabilitation of appellant and that an effort to rehabilitate appellant probably would not have been successful. Appellant’s point of error is overruled.

Point of error two is that the juvenile court erred in finding that enough evidence existed that a grand jury might be expected to return at least eight indictments when there was no evidence to support the two contentions charging appellant with sexual abuse.

Whether there is evidence from which a grand jury might be expected to return an indictment is one factor to be considered by the juvenile court in determining whether to waive its jurisdiction and transfer the child to district court for criminal trial. § 54.02(f)(3).

For purposes of this opinion, we will assume that the grand jury would not return indictments for sexual abuse. Nevertheless, the evidence is such that the grand jury could be expected to return indictments for rape, aggravated robbery, aggravated kidnapping, and unauthorized use of a motor vehicle. The probability that the grand jury would return an indictment for any one of those offenses is sufficient for purposes of § 54.02(f)(3).

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    Hoyt W. AXTON, Appellant, v. William G. KIRBY et al., Appellees.
    No. 1537.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 1, 1977.
    Rehearing Denied June 22, 1977.

      John L. Gardner, Stovall, Wilhite & Gil-breath, Houston, for appellant.
    Henry P. Giessel, Alice Giessel, Talbert, Giessel & Stone, Michael T. Johnson, Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

In January of 1976 William G. Kirby and Alene K. Kirby doing business as Knauer’s Hardware brought suit for the use and benefit of American Hardware Mutual Insurance Company (appellees) in the district court of Harris County, Texas to enforce a Florida judgment rendered in 1958. In the Florida suit appellees obtained a judgment for $33,076.25 against Hoyt W. Axton (Ax-ton or appellant) for tort damages. Axton filed a special appearance challenging the court’s in personam jurisdiction over him and an answer consisting of a general denial subject thereto.

Both parties then moved for summary judgment. Appellant filed an amended original answer on the day set for hearing the summary judgment motions alleging for the first time that the Florida judgment was barred by limitations. The district court overruled appellant’s motion for summary judgment and granted summary judgment for appellees to enforce the Florida judgment. The judgment included interest which was not specifically included in the Florida judgment. Appellant filed a motion for new trial again alleging that the Florida judgment was dormant and unenforceable due to appellees’ failure to execute on the judgment within the prescribed period under both Florida and Texas law. A supporting affidavit was filed at that time evidencing that no writ of execution had been issued in Florida. Appellant’s motion for new trial was overruled.

On appeal appellant again argues that the Florida judgment was barred by limitations and, therefore, not entitled to full faith and credit. He also contends that in any event a fact issue was presented as to whether there was execution issued on the Florida judgment.

We need not resolve the question as to whether the Florida judgment is valid and subsisting because it was improper for the district court to grant appellees’ motion due to the lack of sufficient summary judgment evidence. Moreover, this court is precluded from rendering summary judgment for appellant for the same reason.

Appellees’ motion for summary judgment was unaccompanied by any affidavits, depositions, answers to interrogatories or admissions on file. Their motion was based on the original pleadings. These pleadings consist of the original petition and an attached copy of the Florida judgment with an attestation by the clerk of the Circuit Court in Duval County, Florida. It is well settled that unless the case is one properly to be decided upon the pleadings, the pleadings, even if sworn, cannot be considered summary judgment evidence. Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540 (Tex.Sup. 1971). A motion for summary judgment should be supported by independent proof such as admissions, affidavits and depositions. Tex.R.Civ.P. 166-A(c).

It should be noted that if appellees’ pleadings could have been considered as summary judgment evidence, the copy of the judgment attached to the appellees’ original petition was not properly authenticated as required under Tex.Rev.Civ.Stat. Ann. art. 3731a §§ 2, 4 (Supp. 1976). That article requires attestation by its official custodian along with certification by the judge of the court of record of the district in which the record is kept that such officer did have official custody. In this case the Florida judgment was attested by the clerk of the Florida Circuit Court in Duval County; however, it was not accompanied by any certification by a judge of the district that the clerk was the official custodian. As such the judgment was hearsay. Hutchins v. Seifert, 460 S.W.2d 955, 957 (Tex.Civ.App.-Houston [14th Dist.] 1970, writ ref’d n. r. e.).

Similarly, the appellant’s motion for summary judgment was unsupported by proper summary judgment evidence. The only evidence in support of his motion was his amended original answer raising the limitations question. There were no supporting affidavits filed with the motion on the issue of whether a writ of execution had ever been issued on the Florida judgment. Appellant did file such an affidavit with his motion for new trial; however, such evidence filed at that point would not constitute part of the record of the summary judgment proceeding. Fulton v. Duhaime, 525 S.W.2d 62, 64 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n. r. e.).

In reviewing the record, it is clear that neither the appellees nor the appellant met their burden by offering sufficient evidence to establish that there was no genuine issue of any material fact and that either party was entitled to judgment as a matter of law. Tex.R.Civ.P. 166-A(c). The judgment of the trial court is reversed and remanded for a new trial.

Reversed and remanded.


author: HALL, Justice.

text:
    Sarah Gina ALEXANDER, Individually and as Next Friend for Ricky Foster, a minor, Appellant, v. The CITY OF DALLAS, Appellee.
    No. 5715.
    Court of Civil Appeals of Texas, Waco.
    June 2, 1977.

      •Alfred W. Ellis, Woodruff & Ellis, Dallas, for appellant.
    Lee E. Holt, T. Alex Eastus, Richard A. Sacks, Dallas, for appellee.
   HALL, Justice.

This is a premises condition case. Ricky Foster was seriously injured when the bank of a drainage ditch maintained by the City of Dallas gave way under him and he fell into a deep hole in the ditch. The accident occurred at a place where a concrete storm sewer emptied into the ditch. The discharge of the storm sewer had dug the hole into which Ricky fell, and was eroding the bank of the ditch. Ricky was almost 15 years of age at the time of his injury. His mother, Sarah Gina Alexander, brought this suit individually and on his behalf for their damages. She alleged in effect that the City’s maintenance of the ditch in its eroded condition around the storm sewer without corrective and protective measures or warning was negligence which proximately caused the injuries in question. The City answered with a general denial and a plea of contributory negligence. After the taking of depositions, the City moved for summary judgment asserting it owed no duty to Ricky because the condition in question and the danger it posed was open and obvious to Ricky as a matter of law. The motion was granted and judgment was rendered that plaintiff take nothing. Plaintiff appeals contending the record does not establish as a matter of law that Ricky knew the ditch bank would give way under him or appreciated the danger posed by the condition of the premises. We overrule these contentions and affirm the judgment.

The following undisputed facts are taken from Ricky’s deposition. The area in question is near Ricky’s house. All who lived in the area knew of the condition of the creek and the storm sewer. At the time of his injury, Ricky was very familiar with it. He knew that the ditch was there, that the concrete storm sewer was there, that the deep hole was there, that the ditch was eroding at the hole and around the storm sewer, that the ground around the storm sewer had eroded about seven feet back from the bank of the creek, and that sections of the concrete sewer had fallen into the ditch. He also knew that about 18 months earlier his friend Scott Shipplee fell into the hole while riding a motorcycle and broke his arm. On the occasion of his injury, Ricky approached the hole with his friend Monte Marlar at approximately 3:15 A. M. for the purpose of disposing of a bicycle he and Monte had stolen earlier in the morning, by dumping it in the hole. The sky was clear, but the area was dark without benefit of moonlight or other light, and there was not sufficient light “for you to see where you were going.” Ricky told Monte, who was standing near the hole, to “watch the sparks” when the bike was pushed into the hole. Ricky then moved the bicycle about 30 feet from the hole, then trotted with it to the edge of the ditch and pushed it “off the eroded area” into the hole. Almost immediately thereafter (Ricky said “one second later,” Monte said “not more than four seconds”) the ground crumbled under Ricky’s feet, he fell feet first into the hole, and his head struck some of the concrete sewer in the hole. Ricky was standing five inches from the edge of the ditch when he fell. The area of ground which gave way under him extended from the edge of the ditch to a distance of five inches behind him. Ricky was born on September 20,1959. The accident happened on June 17,1974. At that time, Ricky was five feet and four inches high, and weighed 125 pounds. He had finished the seventh grade in school.

This testimony conclusively shows that Ricky knew that the ditch was there, knew that the storm sewer was there, knew that the emptying of the storm sewer into the ditch had dug the hole into which he fell, knew that the ditch around the storm sewer where he determined to push the bicycle over the edge was eroding, and knew that pieces of the concrete sewer had been caused by the erosion to fall into the ditch. Accordingly, the City owed him no duty to eliminate or to warn him of these conditions. Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390, 392 (Tex.Sup.1967).

Plaintiff argues that the record does not conclusively establish that Ricky appreciated the danger of the ground giving way under him on the occasion in question. We disagree. Under the circumstances, he was charged with knowledge of this danger as a matter of law when he trotted to the lip of the eroding ditch in total darkness. See Rich v. City of Lubbock, 544 S.W.2d 958 (Tex.Civ.App.—Waco, 1976, no writ).

The judgment is affirmed.


author: RALEIGH BROWN, Justice.

text:
    C. Lynn NUNLEY et al., Appellants, v. The STATE BOARD OF INSURANCE, Appellee.
    No. 5047.
    Court of Civil Appeals of Texas, Eastland.
    June 2, 1977.
    Rehearing Denied June 23, 1977.

      • Elgin E. Conner, Jr., Barnett, Collier & Conner, Lubbock, for appellants.
    Patrick P. Rogers, Asst. Atty. Gen., Austin, John C. Phillips, Jr., Asst. Gen. Counsel, San Antonio, amicus curiae, for appellee.
   RALEIGH BROWN, Justice.

This is a declaratory judgment action in which C. Lynn Nunley, Rodney J. Hadfield, Frank E. Frey and Associates, Dennis S. Eubanks, and National Committee for Truth in Life Insurance and Financial Planning, Inc. seek under the provisions of Article 21.21, § 13(e) and (f) of the Insurance Code to have declared null and void Regulation No. 27700, as amended (Regulation in Respect of Replacement of Life Insurance) issued by The State Board of Insurance. Trial without a jury resulted in a judgment upholding the regulation. Plaintiffs appeal. We affirm.

The thrust of the appeal is a constitutional challenge to the regulation. Appellants argue (1) the regulation unreasonably and unnecessarily restricts and deprives individual members of the insurance buying public of their freedom and right to contract in violation of Article I, Sections 3, 16 and 19 of the Texas Constitution and Amendment 14 of the United States Constitution; (2) it unreasonably restricts and deprives individual members of the insurance buying public of their freedom and right to privacy and nondisclosure of confidential information in violation of Article I, Sections 3, 8, 9,16, 17 and 19 of the Texas Constitution and Amendments 1, 4, 5, 9 and 14 to U. S. Constitution; (3) the regulation violates the equal protection clauses of Article I, Sections 3,17,19 and 26 of the Texas Constitution and Amendment 14 of U. S. Constitution; (4) it violates the due process clause of Article I, Section 19 of the Texas Constitution and Amendment 14 of U. S. Constitution; and (5) the regulation is unconstitutional and invalid because of its vague penal provisions and indefinite standards.

Regulation No. 27700 recites that the purpose is:

“(1) To implement the insurance laws of the State of Texas by regulating the act and practices of insurers and agents with respect to replacing life insurance.
(2) To protect the interest of the life insurance public by establishing ‘minimum standards’ of conduct to be observed in the replacement or proposed replacement of life insurance policies; by making available full and clear information on which an applicant for life insurance can make a decision in his own best interest; by reducing the opportunity for misrepresentation and incomplete comparison in a replacement situation; and by precluding unfair methods of competition and unfair practices.”

Witness Rosson testified as to the need for the regulation as follows:

“Q Do you have personal knowledge of the reason why there was a move for regulation on replacement of insurance policies?
A Well, of course, the reason for it: Basically, the NAIC regulation and all of them was to give the insurance-buying public as full a disclosure as would be possible in the field of replacement of insurance. That was the purpose of it.
Q So, if I interpret your answer correct, there was concern within the insurance industry of a problem?
A Yes, sir, there was.
Q Could you explain on that problem, what the problem was?
A The problem was that there apparently were replacements and the thinking in the industry and the National Association of Insurance Commissioners is that — was that the party replacing insurance should be given as much information as possible to enable him to make a rational decision. That was the rationale behind it.
Q And was there some problems with, say, unscrupulous insurance agents going out and making some misrepresentations, which caused this concern in the insurance industry?
MR. CONNER: Your Honor, I would have to have a definition on that question of what Counsel means by unscrupulous. That could mean anything.
THE COURT: I assume he means complaints.
Is that what you mean?
MR. ROGERS: Yes, sir.
THE COURT: You understand it, don’t you, Mr. Rosson?
A There were complaints, yes, sir.
Q Is there a term in the legal business and in the insurance business that would describe these misrepresentations?
A I would say that the common term for it would be twisting.
Q Could you define that term for me?
A I think twisting would be any misrepresentation in the sale of insurance, whether it was an affirmative misrepresentation or an omission of a material fact.
Q Twisting is illegal, is that right?
A It is in any state that I know anything about, yes, sir.
Q But replacement of insurance policies is legal?
A Oh, yes. The regulation does not prevent replacement.
Q Would it be fair to say it is kind of a preventive medicine to prevent the practice of ‘twisting’?
A I would say that the replacement regulation is meant to regulate replacement and one of the facets of it would be that if properly enforced that it would surface misrepresentations in the replacement of life insurance, yes, sir.
Q And in your experience as an attorney and as counsel for an insurance company, does the regulation on its face serve a useful purpose to the consumer?
A Yes, sir, I think it does.
Q Could you explain that purpose?
A Well, I think the purpose is that the effect is that it gives the consumer the buyer has much information or more information than he would receive if the regulation were not in effect. Its purpose is disclosure of pertinent facts.”

Appellants’ challenge of the regulation is resolved by the principles stated in Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex.1970):

“. . . The burden is upon one who attacks a law for unconstitutionality. Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939). It was there said, and repeated in Smith v. Davis, 426 S.W.2d 827 (Tex.Sup.1968) that ‘There is a strong presumption that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.’ It is not the function of the courts to judge the wisdom of a legislative enactment. State v. Spartan’s Industries, Inc., 447 S.W.2d 407 (Tex.Sup.1969). The necessity or reasonableness of particular regulations imposed under the police power is a matter addressed to the legislative department whose determination in the exercise of a sound discretion is conclusive upon the courts. Legislative enactments will not be held unconstitutional and invalid unless it is absolutely necessary to so hold. Smith v. Patterson, 111 Tex. 535, 242 S.W. 749 (1922); see also State v. Brownson, 94 Tex. 436, 61 S.W. 114 (1901) and Lytle v. Halff, 75 Tex. 128, 12 S.W. 610 (1889).”

The court in Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex.Civ.App. — Austin 1975, writ ref. n. r. e.) said:

“. . . As the police power rests in the State, the legislature, by proper grant, may delegate that power to administrative agencies.
The wisdom of the exercise of the police power is largely for legislative rather than judicial determination. Courts are reluctant to disturb an exercise of the police power, and will not unless it appears that the regulation was unnecessary and unreasonable. If a difference of opinion may exist as to the necessity and reasonableness of the regulation, the courts will not invalidate the regulation

See also City of Coleman v. Rhone, 222 S.W.2d 646 (Tex.Civ.App.—Eastland 1949, writ ref’d).

The regulation neither unreasonably nor unnecessarily restricts and deprives insurance purchasers of their freedom and right to contract nor restricts and deprives them of their right to privacy and nondisclosure.

The express purpose of the regulation is to protect a prospective purchaser of life insurance by providing him with certain disclosures to assist him in determining whether he should or should not replace his existing insurance policy or policies. The regulation requires of insurance agents the following:

“Section 5. DUTIES OF AGENT.
Each life insurance agent shall: (1) obtain with or as a part of each application for life insurance a statement signed by the applicant as to whether such insurance will replace existing life insurance. (2) submit to the insurer in connection with each application for life insurance a statement as to whether, to the best of knowledge, replacement is involved in the transaction.”

Sections 6 and 7 of the regulation specify the duties of an agent licensed to sell life insurance and securities and the duties of insurers.

Appellants agree that in order to give proper professional insurance advice, it would be necessary for an agent to inquire as to a prospective purchaser’s financial background, present insurance program and future needs, thereby necessitating a full disclosure of a purchaser’s financial situation. The regulation, however, applies only to the replacement of insurance and not to the purchase of new insurance which does not replace existing insurance. The record supports the fact there is a public danger in the replacement of insurance and there is a compelling 'state interest in protecting the rights of the public from unscrupulous “twisting.”

The court in Daniel v. Tyrrell & Garth Inv. Co., 127 Tex. 213, 93 S.W.2d 372 (1936) said:

“The business of insurance generally is now recognized to be one affected by public interest. 14 R.C.L. p. 857, and authorities there cited.”

The issue then is whether an individual’s right should yield to overriding public interest and be regulated under the police power of the state. The court in Palmer v. Unauthorized Practice Committee of State Bar of Texas, 438 S.W.2d 374 (Tex.Civ.App.—Houston (14th Dist.) 1969, no writ) considering such an issue said:

“Constitutional rights of speech, publication and obligation of contract are not absolute, and in a given case where the public interest is involved, courts are entitled to strike a balance between fundamental constitutional freedoms and the state’s interest in the welfare of its citizens . . . Constitutional guarantees of freedom of expression and of contract must yield to permit the rendition of such degree as is necessary for the reasonable protection of the public. See Art. I, Secs. 8 and 16, Constitution of Texas (Interpretive Commentary, Vol. 1, Vernon’s Texas Constitution, pp. 243-245, and p. 373); Gitlow v. New York, 268 U.S. 652, 666-668, 45 S.Ct. 625, 69 L.Ed. 1138; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357; Curtis Publishing Co. v. Butts, 388 U.S. 130, 150, 87 S.Ct. 1975, 18 L.Ed.2d 1094; E. F. Drew & Co. v. Federal Trade Commission, 235 F.2d 735, 740 (2d Cir. 1956) . . . "

We hold the State’s concern for protecting the public from unscrupulous or negligent agents is superior to any freedom or right of privacy lost by appellants.

Appellants’ “equal protection” and “due process” arguments must fail.

Section 9 of the regulation provides:

“This regulation applies to all insurers, soliciting life and annuity contracts in this State, regardless of the size or type of staff and to any solicitation made by them on their behalf. This includes personal solicitation and solicitations made by a newspaper, magazine, radio, television and direct mail.”

The court in Jefco, Inc. v. Lewis, supra, considering an “equal protection” argument against a regulation adopted by the Savings and Loan Section of the Finance Commission of Texas said:

“. . . the regulation is valid if it applies uniformly to all of those within a particular class ... As with practically any rule which is applied uniformly to a class, resultant hardships will vary depending upon the individual situation of each member of that class. Such hardships, however, do not render the rule invalid.”

The regulation in the instant case applies uniformly to all insurance companies soliciting life and annuity contracts in Texas.

The Supreme Court of the United States has disposed of appellants’ “due process” argument when it said in Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955):

“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought . .We emphasize again what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77, 87, ‘For protection against abuses by legislatures the people must resort to the polls, not to the courts.’ ”

Appellants challenge Section 8 of the regulation as being a penalty provision and unconstitutional because of its vagueness. Also, appellants argue Section 8 does not establish definite standards with which conduct can be conformed by those regulated thereunder.

Section 8(1) states:

“Any insurer, agent, representative, officer or employee of such insurer failing to comply with the requirements of this regulation shall be subject to such penalties as may be appropriate under the Insurance Code of Texas.”

This provision is not vague or indefinite and it expressly refers to the Texas Insurance Code for appropriate penalties for violators.

Section 8(2) provides:

“Policyholders and/or policyowners have the right to replace existing life insurance after indicating in or as a part of application for new life insurance that such is not their intention; however, patterns of such actions by policyholders and/or policyowners of the same insurer and/or agent shall be deemed prima facie evidence of the insurers and/or agent’s knowledge that replacement was intended in connection with the transactions, and such patterns of action shall be deemed prima facie evidence of the insurer’s and/or agent’s intent to violate this regulation.”

Appellant contends the term “patterns of action” does not establish sufficiently definite standards with which conduct can be conformed by those regulated.

The test of whether a standard provided in a regulation is constitutional is whether the idea embodied in the phrase is reasonably clear. Key Western Life Insurance Company v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961); Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960).

Federal courts interpreting the phrase “pattern of practice” of discrimination under the Civil Rights Act of 1968, 42 U.S. C.A. § 3601 et seq. have said as expressed in United States v. West Peachtree Tenth Corporation, 437 F.2d 221 (5 Cir. 1971):

“. . The words ‘pattern or practice’ were not intended to be esoteric words of art. There is nothing magic in their meaning. United States v. Mayton, 5 Cir. 1964, 335 F.2d 153, 158-159. To be sure, they were intended to encompass more than an ‘isolated or accidental or peculiar event.’ See Hearings on H.R. 10327 Before the House Committee on the Judiciary, 86th Cong., 2d Sess. 13; United States v. Mayton, supra, at 158-159.”

We hold the phrase “pattern of action” is reasonably clear as used in the instant regulation and embodies the same idea as expressed by the federal courts in their interpretation of the phrase “pattern or practice,” and meets the test of constitutionality as announced by the Texas courts. See also Sportatorium, Inc. v. State, 115 S.W.2d 483 (Tex.Civ.App.—Dallas 1938, writ dism’d).

We have considered and overrule all points of error presented by the appellants.

The judgment is affirmed.

      . “Section 6. DUTY OF AGENT LICENSED FOR SALE OF BOTH LIFE INSURANCE AND SECURITIES.
      An agent licensed for the sale of both life insurance and securities, who proposes to sell mutual funds or other securities to a policyholder under circumstances which will result in any replacement of such policyholder’s existing life insurance, as defined in Section 3 of this Regulation, shall complete a written statement, signed by both the agent and the policyholder, the original of which shall be left with the policyholder and a copy of which shall be forwarded to the insurer which issued the contract proposed to be replaced at least ten days prior to the completion of the proposed replacement. Such statement shall set forth:
      (1) As to the existing life insurance, the information provided for in Exhibit A of this Regulation;
      (2) The respective addresses of the agent and the policyholder;
      (3) The insurance or investment company or companies involved; and
      (4) The facts which make such replacement advantageous to the policyholder.
      Section 7. DUTIES OF INSURERS.
      Each insurer shall:
      (1) Inform its field representatives of the requirements of this Regulation;
      (2) Require with or as a part of each application for life insurance a statement signed by the applicant as to whether such insurance will replace existing life insurance;
      (3) Require in connection with each application for life insurance a statement signed by the agent as to whether, to the best of his knowledge, replacement is involved in the transaction.
      (4) Where a replacement is involved:
      (a) require with or as a part of each application a list prepared by the agent representing, to the best of his knowledge, all of the existing life insurance policies proposed to be replaced;
      (b) obtain a copy of any proposal used, the completed ‘Comparison Statement,’ proof of the receipt by the applicant of the ‘Notice to Applicants Regarding Replacement of Life Insurance’ and the name of each insurer whose insurance is being replaced.
      (c) immediately notify any insurer whose insurance is being replaced and upon request furnish within 15 working days a copy of any proposal used and the completed ‘Comparison Statement’;
      (d) examine any proposal used and the completed ‘Comparison Statement’ and ascertain that the latter meets the requirements of this Regulation;
      (e) maintain in a central file copies of any proposal used, the completed ‘Comparison Statement,’ proof of receipt by the applicant of the ‘Notice to Applicants Regarding Replacement of Life Insurance’ and the applicant’s signed statement with respect to replacement in its home office for at least three years or until the conclusion of the next succeeding regular examination by the Insurance Department of its state of domicile, whichever is later.
      Any insurer which receives notice that its existing insurance may be replaced shall maintain copies of such notification on its premises, indexed by insurer notifying it of such replacement, for three years or until the conclusion of the next regular examination conducted by the Insurance Department of its state of domicile, whichever is later.”


text:
    Don J. JACKSON, Appellant, v. LaVada S. JACKSON, Appellee.
    No. 12578.
    Court of Civil Appeals of Texas, Austin.
    June 8, 1977.

      Edward C. Small, Small, Craig & Werk-enthin, Austin, for appellant.
    Phil Moekford, Austin, for appellee.
   SHANNON, Justice.

Appellant, Don J. Jackson, filed suit for divorce against appellee, LaVada S. Jackson, in the district court of Travis County. Appellee filed a cross-action for divorce in which she sought custody of the children, a division of the property, and an order that appellant make child support payments.

The parties were married in 1957 and they had three children. All of the parties’ property was community.

After trial to the court, judgment was entered granting appellee the divorce. The district court appointed appellee managing conservator of the three children: Cynthia Diane, age fourteen; Bradley Don, age twelve; and Holly Lynn, age ten. The judgment provided further that Jackson pay one hundred seventy-five dollars each month for each child until that child reached the age of eighteen years. The judgment also divided the real and personal property between the parties. The net value of the items of real and personal property set aside by the judgment to appellee was $364,300.15. The net value of the items of real and personal property set aside to appellant by the judgment was $369,500.27.

Jackson does not question that part of the judgment ordering the divorce and naming appellee managing conservator of the children. Jackson attacks the balance of the judgment by a number of points of error claiming that the district court abused its discretion in dividing the real property and in ordering child support in the indicated sums.

As appellant described, he has been “. in the borrowing money business for the last five years.” More specifically, Jackson has borrowed money on real estate to build improvements or to buy more real estate. Jackson has a college degree in business administration and accounting. For five years prior to trial Jackson had not held employment in the conventional sense.

Appellee attended college for about one and a half years after which she discontinued her education to earn funds for Jackson to continue his education. Although appel-lee planned the furnishings and decorated the apartments and duplexes owned by the parties, she had no formal training or special skills with which to earn a living.

With the exception of some ranch lands, the parties’ real estate was rental property. All of the real estate was burdened with indebtedness. At trial time the mortgage payments considerably exceeded the rental income. Before separation, appellee had urged Jackson to sell some of the negative “cash flow” property, but he had consistently refused to do so.

The items of real estate set aside in the judgment to appellee, other than the residence, consisted primarily of duplexes that at trial time were producing a modest “cash flow.” The items of real estate set aside to Jackson were the ranch lands, apartments, and commercial properties. The mortgage payment exceeded the income on each property set aside to Jackson. Jackson argues that the district court abused its discretion in separating “. . . out the cream of the crop properties, which were healthy and generated a positive cash flow” and in awarding those to appellee and in leaving him with those properties which have a negative “cash flow.”

With respect to the power of the divorce court to divide the property of the parties, Tex. Family Code Ann. § 3.63 (1975) provides that the court shall divide the property “. . . in a manner that the court deems just and right, having due regard for the rights of each party . . . ” The well established rule is that the court is not required to divide the property equally between the parties. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). It is presumed that the divorce court properly exercised its discretion in the division of the property, and its judgment will not be reversed unless there was a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.1974), Dickson v. Dickson, 544 S.W.2d 200 (Tex.Civ.App.1976, writ dism’d w.o.j.).

The division of the property was weighted in favor of appellee. Nevertheless, under the circumstances, the district court was justified awarding the more favorable properties to appellee. Appellant has the preparation and experience that equip him to earn a livelihood. Appellee, to the contrary, has no formal training or skills with which to earn a living. In addition, the properties awarded appellee are manageable from her home. Finally, appel-lee, judging from past experience, has no reasonable expectation that Jackson will be faithful in his financial responsibilities to his children, and she must be prepared, in that event, to provide for the children.

As written previously, the amount of the mortgage payments of the parties’ combined real properties exceeded the rental income. Much of the negative “cash flow” resulted from properties that Jackson, for his own reasons, had refused to sell. Whether or not the parties had divorced, necessity’s sharp pinch would have soon forced the sale of those failing properties. In the division of the properties the district court must have concluded that Jackson, because of his experience in buying and selling of property, was in a better position than appellee to salvage something from the properties that had to be sold.

Jackson’s other major complaint is that the district court abused its discretion in requiring him to pay support in the sum of one hundred seventy-five dollars each month for each child.

A judgment ordering child support will not be reversed unless the district court abused its discretion. Likewise, the judgment ordering child support payments will not be reversed simply because the reviewing court considers those payments too high or too low. The duty of a parent to support his children after divorce corresponds to the needs of the children and to the ability and earning capacity of the parent. Eggemeyer v. Eggemeyer, 535 S.W.2d 425 (Tex.Civ.App.1976), affirmed (Docket No. B-6019, May 18, 1977, not yet reported).

There was evidence concerning the usual needs of three active children. In particular two of the children require corrective dental work, and the youngest child has a chronic bladder infection, all of which indicate future medical expenses. The two oldest children are engaging in school sports which require extra expenditures.

There was also evidence which reflected Jackson’s past priorities in the expenditure of his money. Prior to the trial on the merits, Jackson gathered together his resources and went with a girl friend on a trip to Israel. During the same time he did not provide for the care and maintenance of his children.

To satisfy the law’s command that he support his minor children, Jackson may have to forego some of the indulgences which he has enjoyed in the past. Possibly, he may have to obtain employment. In that connection, Jackson’s education and experience equip him to secure a well paid position. The district court did not abuse its discretion in ordering the child support payments in the indicated sums.

By point of error Jackson claims that the district court erred in failing to file findings of fact as to the negative and positive “cash flows” generated by each of the respective real properties. Because Jackson’s request would have required fact findings evidentiary in character, the court did not err in refusing to make those findings. Sauer v. Johnson, 520 S.W.2d 438 (Tex.Civ.App.1975, writ ref’d n.r.e.).

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Jean J. CARNEY, Appellant, v. Elma AICKLEN, Appellee.
    No. 12579.
    Court of Civil Appeals of Texas, Austin.
    June 8, 1977.

      Byron Lockhart, Lockhart, Kuykendall & Jones, Austin, for appellant.
    Joseph Latting, Gay & Latting, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant, Jean J. Carney, and appellee, Elma Aicklen, are nieces of Elma H. Loud, a person who, under the record before us, is of unsound mind. Appellant filed an application for letters of guardianship for the person and estate of Elma Loud. Under the same number and style as that docketed for the application of appellant, appellee contested appellant’s application praying that if a guardian is needed, she, and not appellant, be appointed guardian. Thereafter, the trial court proceeded to hear the applications of both parties and, subsequently, appointed appellee. We reverse this judgment and remand the cause for a new trial.

Appellant’s points of error present two principal questions. The first is whether the trial court committed error in appointing appellee as guardian when, as asserted by appellant, it had no jurisdiction to make such appointment, because no public notice of appellee’s application was ever posted and because no citation was ever served upon the proposed ward.

There is no question that appellant’s application for letters was in compliance with Tex.Prob.Code Ann. § 111 (1956) and met all the requirements set out in this section. Appellant also complied with the provisions of section 130(c) which requires that persons of unsound mind shall be personally served with citation to appear and answer the application for the appointment of a guardian.

In this same cause appellee filed a pleading entitled “Contest of Application for Letters of Guardianship,” which was the only pleading filed by appellee in the entire proceeding.

Appellant now contends that since the appellee did not duplicate the requirements of section 111 with respect to notice and also duplicate the requirements of section 130(c) with respect to service of citation, the trial court was without jurisdiction to appoint appellee guardian.

We overrule these contentions. Although appellant has cited many cases where the court lacked jurisdiction to act because of noncompliance with the various provisions of the Probate Code cited above, in the case at bar compliance with the Code on the part of appellant is without dispute. Thus, the court acquired jurisdiction over the guardianship proceeding that included, under the provision of section 114, the right to appoint a proper person to act as guardian in case no person who is entitled to appointment applies for it.

We can find nothing in the Probate Code that requires the duplication of effort with respect to the sections of the Code cited above on the part of appellee with that required by the party initiating the guardianship proceedings.

Indeed, under the provisions of Tex.R. Civ.P. 173, the court appointed a guardian ad litem who appeared on behalf of the ward at the trial in the court below. In our judgment, the appearance of the guardian ad litem, together with the personal service on Mrs. Loud and the proper posting of notice, fully protected her rights.

The second question presented is whether the court erred in appointing ap-pellee as guardian when there is evidence disclosing that appellee was disqualified because she owed a debt to the ward. We must sustain this point.

The evidence discloses that appellee had been caring for the ward’s needs both before and after her incompetency. During these times appellee wrote checks to herself for $175 each on the ward’s account. Ap-pellee also wrote checks on this account for $150 per week for groceries.

There were no findings of fact filed by the trial court; however, indulging every presumption .in favor of the trial court’s implied finding that there was no debt owed the estate by appellee, the overwhelming preponderance of the evidence indicates that appellee used six payments of $175 for her own purposes and also used a part of the groceries purchased each week for herself, and at least a part of these funds and groceries were acquired and used during the period of time in which the ward was incompetent. Even though there is no question of any overreaching and even though the ward is an extremely wealthy woman and the amounts in question are a mere pittance, we must agree with appellant’s contention that after the ward became incompetent to handle her own affairs, the appellee’s use of the money and groceries for her own needs became a conversion of the ward’s assets, which in turn constitutes a present debt to the ward or to her estate. This debt disqualifies appellee from becoming the ward’s guardian under Tex.Prob.Code Ann. § 110(e).

However, as the court perceived ap-pellee to be the better qualified for appointment as guardian, and from our review of the record we have no reason to believe otherwise, we reverse this case and remand it for a new trial at which time, should appellee wish to reapply for letters of guardianship, she may repay the amount then found by the trial court to be the debt in question, thereby removing the disqualification of the Probate Code. See Tex. Prob.Code Ann. § 110(e).

Reversed and Remanded.


author: JAMES, Justice.

text:
    Curtis WILLIAMS, Appellant, v. FRANK PARRA CHEVROLET, INC., et al., Appellees.
    No. 5683.
    Court of Civil Appeals of Texas, Waco.
    June 9, 1977.

      David K. Line, Robert W. Hartson, Inc., Dallas, for appellant.
    C. R. Tabor, Tabor & Cline, 0. Glen Weaver, Kahn & Weaver, Irving, for appel-lees.
   OPINION

JAMES, Justice.

This is a suit for malicious prosecution. At the close of Plaintiff-Appellant’s evidence, the trial court upon Defendant-Ap-pellees’ motion withdrew the case from the jury and entered judgment that Plaintiff-Appellant take nothing, from which Plaintiff appeals. We reverse and remand.

Plain tiff-Appellant Curtis Williams brought this suit against Defendants Frank Parra Chevrolet, Inc., and its agent, Joe Bates, Appellees herein, for malicious prosecution, and alternatively, for invasion of privacy. Trial was to a jury, and after Plaintiff rested, the trial court granted an instructed verdict in favor of both Defendants, from which Plaintiff Williams appeals. Plaintiff-Appellant contends that the trial court erred in granting the instructed verdict, asserting there is evidence of probative force to raise fact issues concerning each element of his cause of action for malicious prosecution. We sustain this contention, and thereby reverse and remand the cause for retrial. Under our view of the case, it is not necessary for us to pass upon Appellant’s point of error relative to his asserted cause of action for invasion of his right of privacy, and we express no opinion thereupon.

In determining the propriety of an instructed verdict, we are required to view the evidence in the light most favorable to the losing party. Any inference which properly may be drawn from the evidence must be indulged against the granting of the motion. Conflicts, if any, in the testimony are to be disregarded. If the record reflects any testimony of probative force, either direct or circumstantial, in favor of the party against whom the verdict was instructed, we must hold the instruction to be improper. Testimony adverse to the losing party will be disregarded. White v. White (1943) 141 Tex. 328, 172 S.W.2d 295; Air Conditioning, Inc. v. Harrison-Wilson-Pearson (1952) 151 Tex. 635, 253 S.W.2d 422; McRoy v. Riverlake Country Club (Dallas CA 1968) 426 S.W.2d 299, NRE.

Applying the foregoing rules to the case at bar, we herewith state the following as the pertinent facts shown by the record: On May 16, 1973, Plaintiff Curtis Williams went to the business premises of Frank Parra Chevrolet, Inc., and contracted to purchase a 1971 Chevrolet Tandem dump truck. Plaintiff’s dealings were with Defendant Joe Bates, then sales manager for Frank Parra Chevrolet, Inc. The total price of the truck was $9635.50. In order to pay the down payment, Plaintiff paid $2500.00 in cash, and to pay the remaining $750.00 of the down payment, he gave Mr. Bates three checks. Plaintiff testified he gave the Defendant Bates three checks signed by him (Plaintiff) in blank, shown to be drawn upon his checking account in the Fair Park National Bank, with serial numbers respectively shown as 287, 288, and 289. In other words, Plaintiff testified that each of these checks were left blank insofar, as the date, payee, and amount were concerned; but were each signed “Curtis Williams” by Plaintiff as maker thereof. Plaintiff further testified that it was agreed between him and Bates that Bates would fill out each of these checks in the amount of $250.00, and would show them to be payable to Frank Parra Chevrolet, Inc., and that check No. 287 would be held for thirty days, until June 16, 1973, before being presented to the bank for payment; that check No. 288 would be held for sixty days, until July 16, 1973, before being presented to the bank for payment; and that check No. 289 would be held for ninety days, until August 16, 1973, before being presented for payment.

Joe Bates testified that he filled out all three of the checks, each in the amount of $250.00 in Plaintiffs presence, and then gave them to Plaintiff for his signature. However, Bates admitted in his testimony that he agreed with Plaintiff that he would hold check No. 287 for 30 days, check No. 288 for sixty days, and check No. 289 for ninety days, before presentation to the bank for payment.

The record does not show the exact date cheek No. 287 was presented for payment; however, it was so presented, and on July 11,1973, it was dishonored because of insufficient funds. Said check No. 287 bore the date of “5-16-73.” Plaintiff was thereafter notified that said check had been dishonored; whereupon on August 25, 1973, he went in to Frank Parra Chevrolet, Inc., and paid said Defendant $320.00, and secured a receipt therefor, which he testified he paid for the purpose of paying off check No. 287 of $250.00 plus an additional $70.00 to be applied on cheek Nos. 288 and 289. This receipt for the $320.00 was signed by Joe Bates.

On October 10, 1973, someone at Frank Parra Chevrolet, Inc., filed a complaint against Plaintiff Curtis Williams for the criminal offense of swindling by worthless check. The complaint form was shown by notation thereon to have been mailed in to the District Attorney’s office on October 10, 1973. The name of the complaining party is shown to be “Joe R. Bates;” however, Bates denied that he personally filed the complaint. Be that as it may, Bates admitted that it was his responsibility in behalf of his employer to refer unpaid checks to the District Attorney’s office, and that he did cause the complaint to be made. This complaint charged Plaintiff Williams with swindling by worthless check, to wit, of check No. 287 in the amount of $250.00. The complaint form asked the question: “Was this a postdated or hold check?” to which the answer “No” was given on said complaint form.

This criminal complaint resulted in Plaintiff Williams being indicted by the Grand Jury of Dallas County of the felony offense of swindling by worthless cheek by passing check No. 287. Thereafter, a warrant for Plaintiff’s arrest was issued; and on April 8, 1974, Plaintiff was arrested at his home and was incarcerated in the Dallas County Jail where he was required to remain for some ten to fifteen hours until he was able to post bond for his release. Making bond cost Plaintiff $300.00, and in addition thereto he incurred attorney’s fees for his defense of this indictment in the amount of $600.00.

On August 30,1974, the criminal prosecution was dismissed upon motion of the District Attorney for the stated reason, inter alia, that “the defendant’s bank records indicate that at the time he wrote the above-mentioned check there were in fact funds sufficient to cover this check.” This was true, because the Plaintiff’s bank records introduced in evidence in the case at bar showed that on May 16, 1973, the date Plaintiff gave the check in question, Plaintiff then had on deposit in his checking account the amount of $354.04.

The truck which Plaintiff bought from Defendants had considerable mechanical troubles from the beginning. After two unsuccessful attempts on the part of the Defendant Chevrolet Co. to repair the truck, said Company thereafter refused to work on the truck any more; whereupon Plaintiff took the truck to one Bel-Air Garage for repairs. While the truck was in the Bel-Air Garage, it was repossessed from Plaintiff.

The elements necessary for a malicious prosecution action are: (1) The commencement of a criminal prosecution against Plaintiff, (2) which has been caused by the Defendant or through Defendant’s aid or cooperation, (3) which terminated in favor of the Plaintiff; (4) that Plaintiff was innocent; (5) that there was no probable cause for such proceeding; (6) that it was done with malice, and (7) resulted in damages to Plaintiff. Flowers v. Central Power and Light Co. (Waco CA 1958) 314 S.W.2d 373, NRE. Also see Yianitsas v. Mercantile National Bank at Dallas (Dallas CA 1967) 410 S.W.2d 848, 850, no writ.

The motion for instructed verdict filed by Defendants (as granted by the trial court) asserted that there was no evidence of probative force in the record to support elements (4), (5), and (6) of Plaintiff’s cause of action as above stated. That is to say, that there is no evidence to show: (4) that Plaintiff was innocent of the criminal charge, (5) that there was no probable cause for such criminal proceeding, and (6) that such pro'ceeding was done with malice on Defendants’ part.

We do not agree with these contentions, because we believe there is evidence of probative force in the record in support of all three of these elements of Plaintiff’s cause of action.

We believe the following evidence supports Plaintiff’s innocence of the criminal charges: (1) Plaintiff had more than $250.00 on deposit in his checking account on May 16,1973, the day he gave check No. 287; (2) Plaintiff had actually paid off to Defendants check No. 287 on August 25, 1973, about a month and a half before the Defendants filed the criminal complaint; (3) The District Attorney dismissed the indictment because in his opinion the facts would not support a conviction against Williams for swindling by worthless check. Mr. Tom Callan testified that he was an assistant District Attorney who was handling the criminal prosecution against Curtis Williams, and in his opinion Williams could not be convicted for two reasons, to wit: because he (Williams) had more than enough money on deposit in his cheeking account on May 16, 1973, the date he gave $250.00 check No. 287, and for the further reason that said cheek was a “hold” check. In other words, Mr. Callan testified if the check.-was a “hold” check (as this check was), that “it would not support a conviction.” In our opinion, the foregoing constitutes ample evidence of Plaintiff Williams’ innocence.

Now, with reference to the problem of the evidence which we believe raises the fact issue of the absence of probable cause for the criminal prosecution: “Probable cause” is defined as “the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.” Ramsey v. Arrott (Comm.App.1885) 64 Tex. 320, opinion adopted by our Supreme Court. Also see J. C. Penney Co. v. Gilford (Houston 1st CA 1967) 422 S.W.2d 25, 28, NRE.

Applying the foregoing definition to the case at bar, there is evidence that there were facts within the knowledge of Defendants that would lead them to believe Williams was not guilty of the criminal offense, because at the time Defendants filed the criminal complaint they actually knew: (1) that check No. 287 was a “hold” check, which fact was not disclosed to the District Attorney at the time of filing, and (2) that check No. 287 had already been actually paid off by Plaintiff to Defendants about six weeks before the complaint was filed. This evidence in our opinion raises the fact issue of a lack of probable cause for the filing of the criminal complaint.

Finally, we believe there is evidence which raises the issue of malice on Defendant’s part in filing the criminal prosecution against Plaintiff Williams. In the first place, Defendants represented to the District Attorney that the subject check was not a “hold” check, when in truth and in fact it was a “hold” check. Secondly, Defendants actually knew the check had been paid off before the criminal charges were filed.

In Ramsey v. Arrott (Comm.App.1885) 64 Tex. 320, opinion adopted, the following language is used:

“It is often said that malice may be inferred from circumstances; this means that the circumstances attending the prosecution may be such as to satisfy the mind that the party was actuated by wrongful motives in the institution and continuance of the prosecution. This wrong motive, coupled with a wrongful act wilfully done to the injury of another, constitutes legal malice; and may be established as well by circumstantial as direct evidence. The existence or non-existence of malice is a question of fact to be determined from a consideration of the evidence.” Also see Reed v. Lindley (Fort Worth CA 1922) 240 S.W. 348, no writ; Aldana v. Tavason (El Paso CA 1929) 15 S.W.2d 678, no writ; J. C. Penney Co. v. Gilford (Houston 1st CA 1967) 422 S.W.2d 25, NRE.

In summary, we believe the record shows evidence of probative force to raise fact issues concerning each element of Plaintiff’s cause of action for malicious prosecution. This being so, the instructed verdict was improper. We accordingly reverse and remand the cause for retrial.

REVERSED AND REMANDED.


author: McDONALD, Chief Justice.

text:
    Glen WALKER, Appellant, v. Larry G. SMITH, Individually and d/b/a Larry G. Smith Construction Machinery, Appellee.
    No. 5744.
    Court of Civil Appeals of Texas, Waco.
    June 9, 1977.
    Robert W. Gage, Teague, for appellant.
    Maurice Campbell and Fred Horner, Dun-nam, Dunnam & Dunnam, Waco, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Walker from an order overruling his plea of privilege to be sued in Freestone County, the county of his residence.

Plaintiff Smith sued defendant Walker in McLennan County on an alleged contract for the purchase of a Terex Loader by defendant from plaintiff for $12,500. plus 5% sales tax of $625. Plaintiff alleged defendant paid for said loader with a check, dated June 30, 1976 drawn on the First National Bank of Teague in the sum of $2000. and $10,500. cash from a loan secured from CIT Corporation. The $2,000. check was negotiated by plaintiff and returned unpaid by the bank and marked “Insufficient Funds”. Plaintiff prayed judgment for $2,625. plus attorney’s fees.

Defendant filed his plea of privilege to be sued in Freestone County.

Plaintiff filed controverting plea asserting venue in McLennan County by virtue of Sections 9 and 7, Article 1995, VATS.

The trial court after hearing overruled defendant’s plea of privilege.

Defendant appeals on 4 points contending the trial court erred in overruling his plea of privilege in that:

1) There is no evidence and/or insufficient evidence defendant was guilty of actionable fraud so as to bring him under Subdivision 7, Article 1995.
2) There is no evidence and/or insufficient evidence to sustain a finding by the trial court, defendant was guilty of a crime or offense so as to bring him under Subdivision 9, Article 1995.

Plaintiff testified that on June 30, 1976 he sold a Terex Loader to defendant for $12,500., and in payment defendant arranged financing for $10,500. and gave him a check for $2,000. on the Teague Bank; that he deposited the check immediately for collection, and that same was returned for insufficient funds; that he then sent defendant a certified letter, “return receipt requested” requesting the check be paid, and that the check was never paid.

Witness Harris testified he was present when plaintiff and defendant discussed the transaction and that plaintiff told defendant he would hold the check and not cash it until defendant tested the equipment to see if it worked to his requirements. Defendant testified he took the loader on approval and that no final purchase was made, that he signed the check and the financing papers because plaintiff told him this had to be done before the loader could be taken off the lot to satisfy his bank, but that the check and financing papers would not be negotiated until defendant tried the loader to see if it performed satisfactorily; that if it would not perform, no purchase would be made and that the loader would be picked up by plaintiff. If, however, defendant was satisfied with it, he was to call plaintiff and plaintiff would then negotiate the check and financing papers.

And plaintiff admitted the foregoing to be true; to wit:

“Q Isn’t it a fact, Mr. Smith, that you told Mr. Walker that he could take the machine and try it out and that no purchase would be made until that machine . until he was satisfied it would do his work?”
“A That’s right”.

Subdivision 7, Article 1995 provides: “In all cases of fraud * * *, suit may be brought in the county where the fraud was committed * * *

Subdivision 9, Article 1995 provides: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed by the defendant * * *

Defendant has not committed a fraud or a crime or offense since plaintiff admits and all the evidence is that there was no sale until defendant tried the machine out and was satisfied it would do his job. Moreover, it is undisputed defendant had over $2,000. in the bank (above checks issued and outstanding) at the time he gave the check.

Defendant’s points and contentions are sustained. The judgment is reversed and judgment here rendered transferring the cause to the 87th District Court of Freestone County.

REVERSED and RENDERED.


author: STERNBERG, Justice.

text:
    FRANKFORT VARIETY, INC., et al., Appellants. v. CITY OF FRANKFORT, Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 10, 1977.
    John C. McCord, William P. Swain, Thomas Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants,
    William Young, Young & Williams, Allen Prewitt, Jr., Frankfort, for appellee.
   STERNBERG, Justice.

This is an appeal from a judgment of the Franklin Circuit Court which granted the City of Frankfort freedom from liability by reason of the cloak of sovereign immunity.

A fire started on the premises in which the variety store was being operated, which is within the city limits of Frankfort. The fire occurred about 9:00 p. m. on April 14, 1973. The Frankfort Fire Department responded and extinguished the fire by midnight; however, the firemen continued to hose down the fire until about 2:30 a. m. the following morning. Upon their departure, the firemen requested the policemen, who were assisting at the scene of the fire, to watch out for vandalism and a rekindling of the fire. About 8:30 a. m. on the day following the initial fire, it again began burning and the firemen were called back to the scene, where it was extinguished by noon.

Frankfort Variety, Inc., and the interve-nors, who are the owners of the premises, charged that the firemen so negligently and carelessly failed to sufficiently and adequately protect their premises from fire and so negligently handled and operated the fire fighting equipment that they were damaged in a total sum in excess of $300,-000.

On appeal to this court three issues are presented, as follows:

“1. Whether the doctrine of municipal immunity as announced in City of Louisville v. Louisville Seed Company, should be abolished?
2. Whether the allegations contained in the complaints filed in the case at bar bring this case within the ‘personal dealing’ exception to the municipal immunity doctrine?
3. Whether the doctrine of municipal immunity should be abrogated in its entirety to the extent of any applicable insurance coverage?”

In Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), the doctrine of municipal immunity for tort liability was abolished. Absolute liability was not the result, but liability based on duty was the resulting criterion. It was charged that the City of Lexington was negligent in the operation of a swimming pool, which resulted in a death by drowning. The circuit judge held, as a matter of law, that the operation of the swimming pool was a governmental, not proprietary, function and, therefore, the city was not liable for the result of negligence. Accordingly, the action was dismissed. An appeal was taken to this court, and in the course of the opinion we said, “So, once again, we are called upon to examine this legal anachronism of municipal immunity from liability for tort.” We pointed out that “ * * * this Court in late years has accepted the theory with reluctance and has seized upon almost any excuse, however flimsy, to grant relief to any person harmed by negligence of a municipal corporation. * * * ” Further criticism of the doctrine was leveled in our comment that, “It is equally hard to determine how this doctrine became imbedded in the law of our Commonwealth.” As to the propriety of the doctrine, we said:

“ * * * It is sufficient to say that courts made distinctions between functions of the municipal corporation that purportedly were governmental or public and those thought to be proprietary or private, denying liability in the case of governmental functions, but imposing it in situations involving proprietary actions. At most, the distinctions seem to be contrived and without sensible basis. $ ‡ * ft

After a lengthy discussion of the doctrine, its origin and application, we rejected the municipal immunity doctrine. In doing so, we adopted the Wisconsin rule, as follows:

“Perhaps clarity will be afforded by our expression that henceforward, so far as governmental responsibility for torts is concerned, the rule is liability — the exception is immunity. In determining the tort liability of a municipality it is no longer necessary to divide its operations into those which are proprietary and those which are governmental. Our decision does not broaden the government’s obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision.”

In City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968), liability was sought to be imposed for the failure of the city to install gates in the municipal floodwall system. A jury found against the city and awarded a substantial verdict. An appeal followed. In discussing the nature of the liability, we made a distinction between those acts which affect all members of the general public and those situations where the city seeks out or separates a person from the general public and deals with him on an individual basis. In the former instance we said, “ * * * it would be unreasonable to apply to it the broad privilege of tort liability * * (No tort had been committed.) To the latter situation, we said, “ * * * it then should be subjected to the same rules of tort liability as are generally applied between individuals.” (A tort had been committed.) The tort theory of liability was thus affirmed.

In City of Russellville v. Greer, Ky., 440 S.W.2d 269 (1969), a judgment had been recovered against the city on the ground that the city’s negligent failure to maintain a stop sign was the proximate cause of a collision resulting in injury and damage. Again, we considered the propriety of the governmental immunity doctrine. The Haney and City of Louisville cases were analyzed in relation to contrary views expressed by courts of final jurisdiction of other states. We refused to follow the suggested change, but held tight to the philosophy of degree of duty. In disposing of the case and in holding tight to the municipal immunity doctrine we had espoused, this court said:

“As we have hereinbefore pointed out, the erection and maintenance of street signs is a matter of traffic regulation legislated as a police measure for the protection of the public generally and the city does not owe a legal duty to any motorist to continue any specific regulation or any particular sign. Under the principles set forth in the Martin and Louisville Seed Company cases, the appellant city owed no duty to appellee Greer to maintain a STOP sign anywhere in Russellville. Consequently it committed no negligent act as to him in failing to have one on Breathitt Street. There was no basis for municipal liability.”

We pointed out that the city had no duty to the appellants. Consequently, it had committed no negligent act as to them and, therefore, there is no basis for municipal liability.

The nonliability of a city does not rest on the doctrine of governmental immunity. As in the instance of a private individual, a city is answerable for a breach of duty. However, a city’s relationship to individuals and to the public is not the same as if the city itself were a private individual or corporation, and its duties are not the same. When it undertakes measures for the protection of its citizens, it is not to be held to the same standards of performance that would be required of a professional organization hired to do the job. If it were, it very well might hesitate to undertake them. In any event, when a city provides police and fire protection or, as in the case of Louisville Seed Company, supra, flood protection, the degree of success that should or will be attained in any particular instance cannot be guaranteed, nor can it be defined in terms of duties. A city cannot be held liable for its omission to do all the things that could or should have been done in an effort to protect life and property.

The second issue presupposes that the complaint, amended complaint and intervening complaint state facts sufficient to overcome an attack under CR 12.03.

In their brief, after a lengthy quote from the City of Louisville v. Louisville Seed Company case, appellants state:

“We conclude from this language that if the appellants can show either (1) that the fire department dealt with the appellants on an individual basis, or (2) that the loss occasioned by the appellants was isolated from any loss occasioned by the general public—then, in that event, the appellants will be entitled to recovery under the principles announced in Louisville Seed. We seek only an opportunity to prove the allegations advanced in the pleadings.”

This conclusion of appellants is consistent with out holding in the Louisville Seed Company case. The questions, however, in the case at bar of whether the city dealt with the appellants on an individual basis or whether appellants’ losses were isolated from any loss occasioned by the general public are questions of law which must be answered by the trial judge in the affirmative before negligence becomes a jury question. The trial judge found that the risk and damage upon which the action is predicated is an inherent part of the carrying out of the functions of government. Thus, the court determined that, as a matter of law, the fire department did not deal with the appellants on an individual basis nor were the losses sustained by the appellants isolated from a loss occasioned by the general public.

Appellants’ argument that, to the extent of any insurance coverage, the defense of sovereign immunity should be considered as having been waived is not in harmony with the current court decisions nor with the philosophy of this court. We have no desire to impose liability where none exists on the ground that the insurance company will pick up the tab. In Wallace v. Laurel County Board of Education, 287 Ky. 454, 153 S.W.2d 915 (1941), we said:

“The fact that §§ 4399-20a and 4399-20b, Baldwin’s 1941 Supplement, allow the Board to carry liability insurance against the negligence of drivers of school buses owned by the Board or operated under contract by it does not make the Board liable for the torts of its agents or employees. * * * ”

Just as the statute cited in Wallace authorized the Board of Education to carry liability insurance, so KRS 95.820 permits the City of Frankfort to “ * * * provide public liability insurance for the regular police and fire departments and their personnel * * *.”

The trial court properly determined that the city was engaged in a municipal function. However, it erroneously applied the municipal immunity doctrine. Being engaged in a municipal function which affects all members of the general public, the city owed no duty to appellants; consequently, there was no negligence on which liability could be predicated.

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    BETH-ELKHORN CORPORATION, Appellant, v. John McDowell ROSS, Commissioner of Revenue, etc., et al., Appellees. KENTUCKY CARBON CORPORATION, etc., Appellant, v. John McDowell ROSS, Commissioner of Revenue, etc., et al., Appellees.
    Supreme Court of Kentucky.
    June 10, 1977.

      C. Gibson Downing, Bennett Clark, Stoll, Keenon & Park, Lexington, for appellant Beth-Elkhorn Corp.
    Armer H. Mahan, Davis & Mahan, Louisville, for appellant Kentucky Carbon Corp.
    william S. Riley, Asst. Atty. Gen., and Thomas A. Duke, Attorney, Legal Staff, Dept. of Revenue, Ben B. Fowler, Stites, McElwain & Fowler, Frankfort, for appel-lees.
   PALMORE, Justice.

This is a class action in behalf of self-insured employers under KRS 342.340 against the Commissioner of Revenue of Kentucky challenging the method used by the Commissioner to establish the minimum “adjusted cost” as defined by KRS 342.122(1). All insurance companies carrying workmen’s compensation insurance in Kentucky during the period in question have been joined as class defendants. The self-insured employers appeal from a judgment sustaining the position of the Commissioner.

Every employer subject to the Workmen’s Compensation Law (KRS Ch. 342) must either carry workmen’s compensation insurance or qualify as a self-insurer. KRS 342.340(1). All are required to pay a 2% maintenance-fund tax and a .75% special claim-fund tax. In the instance of commercially-insured employers these assessments are based on net premiums and are collected and paid in by the insurance carrier. KRS 342.445, 342.122(2). In the instance of self-insured employers they are based on the employer’s “adjusted cost” and are paid directly by the employer. KRS 342.475, 342.122(1). Annual returns and reports providing the necessary figures and computations are required to be filed with the Department of Revenue by March 1. KRS 342.450, 342.475.

The term “adjusted cost” is defined in KRS 342.122(1) as follows:

“ ‘Adjusted cost’ as used in this section and in KRS 342.475 means all compensation, hospital and medical benefits paid thereunder, plus an additional factor of twelve per cent (12%) of such total payments, to cover the administrative cost of the employer. However in no event shall ‘adjusted cost’ be less than fifty per cent (50%) of the basic insurance premium computed by applying current manual rates for workmen’s compensation insurance to the payroll of every employer carrying his own risk and for this purpose each such employer shall annually furnish payroll data to the department of revenue.” (Emphasis added.)

The argument in this case is confined primarily to what is meant by “current” manual rates in the foregoing context. The self-insured employers contend it means the rates currently in effect during the calendar year covered by the KRS 342.-475 report of adjusted costs. The Commissioner contends that it refers to the rates in effect contemporaneously with the report, which for the sake of convenience he has designated as January 1 of the year in which the report is due by March 1. This designation has prevailed at least since 1966, when the function of administering and collecting the taxes was transferred from the Department of Labor to the Department of Revenue.

The controversy was precipitated by the occurrence of a substantial increase in manual rates during January of 1973, which for purposes of this discussion may be treated as having taken place on January 1, 1973.

Relying on the commonly-accepted meaning of the word “current,” cf. KRS 446.-080(4), as well as the doctrine of contemporaneous construction, the trial court construed it in accordance with the contention of the Commissioner.

We could theorize at length on rules of construction and various ways of gaining insight into the intended force of words. What strikes one person as a clue may not so appear to another. In the end, however, within our judicial system the decision must be rested on what the words in question mean to this court, and the simple fact is that we think the term “current manual rates” refers to the rates current during the period of time covered by the report and should never have been construed by the Department of Revenue as meaning anything else.

Manual rates for insurance are put in effect through filings with the Commissioner of Insurance. KRS 304.13-950. The actions that culminated in the January 1, 1973, rates began with a filing by the National Council on Compensation Insurance in November of 1972. Following a hearing held on December 19,1972, the Commissioner disapproved the filing by an order entered on January 5, 1973, in which the National Council was requested to submit a revised filing “with the understanding that such rates, if approved by the Department, shall be approved to be effective January 1, 1973.” The revised filing so requested was filed with the Commissioner of Insurance on January 26, 1973, “to become effective 12:01 A. M. January 1, 1973.” On January 29,1973, it was stamped “Deemed in Effect . Department of Insurance Commonwealth of Kentucky.”

We recite the foregoing information to illustrate a point. The word “current” as used in KRS 342.122(1) is subject to only four possible meanings, (1) during the payroll period covered by the employer’s report, which was the calendar year 1972, (2) the date on which the report was due, which was March 1, 1973, (3) the date on which the employer actually filed the report, and (4) some other date prescribed by the Commissioner of Revenue. For obvious reasons, one of which is that no one champions it, No. (3) may be eliminated. If the legislature really meant for the rates current at the time of reporting to be used, No. (2) would be the more logical answer, but of course no employer, when preparing its report for filing on or before March 1, would know what the rates would be on that day, and thus would be unable to report its “adjusted cost” of operating as required by KRS 342.475. To avoid this unlikely result the appellees resort to the semantic dodge of distinguishing between “adjusted cost” and the minimum figure arrived at by multiplying 50% of current manual rates times the payroll. In straight English, we think this dog will not hunt. KRS 342.122(1) plainly says that “in no event shall ‘adjusted cost’ be less than” the specified minimum (emphasis added), which, to this court at least, connotes that if the “adjusted cost” computed according to experience (plus 12%) is less than the minimum, then the minimum is the “adjusted cost.” “Fictitious” as the resulting figure may be, so is the 12% component of the figure to which the appellees would limit the definition of “adjusted cost.” The word “adjusted” itself connotes a fiction. In any event, they do not contend that the statute mandates March 1, the due date for filing the payroll reports, as the time to be used in determining “current manual rates,” and we do not think so either.

We are even less inclined to believe that the legislature intended that someone “select” a date for that determination, however convenient such an approach might seem. If that body had intended the word “current” to mean any time or period other than that covered by the required report, it is our opinion that it would have said so.

With reference to “contemporaneous construction,” what was said in Kentucky Bd. of Tax App. v. Citizens Fid. B. & T. Co., Ky., 525 S.W.2d 68, 75 (1975), is equally appropriate here: If there is ambiguity, it is not intrinsic to the statute but has been created by the Department of Revenue, and “we are no more disposed to hold that an administrative body can change a law by mistake than to hold that it can do so on purpose.”

The cause is reversed with directions that a new judgment be entered consistent with this opinion.

All concur.

      . It may be seen, for example, that while contending in effect that “current” means “here and now,” and not last year, the Commissioner at the same time has no difficulty in accepting the fiction that a figure not in existence on January 1, 1973, could be created retroactively as current on that date by an order entered four weeks later.

      . It would appear that the Department of Revenue itself regarded the greater of the two figures as “adjusted cost” until it sought to draw the distinction in this case. The bottom line of its official reporting form (54A 114), on which the greater figure is to be entered, begins with the words, “This is your Adjusted Cost.”