author: PEDEN, Justice.

text:
    Daniel PRUITT, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 16770.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 17, 1977.
    Rehearing Denied March 17, 1977.

      Dixie, Wolf & Hall, George C. Dixie, Houston, for appellant.
    Otis H. King, City Atty., Alan F. Levin, Senior Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for appellees.
   PEDEN, Justice.

This is an appeal from the trial court’s dismissal for want of jurisdiction of this suit brought under Article 1269m, Vernon’s Texas Civil Statutes, the Firemen’s and Policemen’s Civil Service Act.

The appellant, Mr. Daniel Pruitt, was passed over by the fire chief for a promotion to senior investigator in the Arson Division of the Houston Fire Department. He wrote a letter of appeal to the Firemen’s and Policemen’s Civil Service Commission, but it upheld the bypass without an open hearing and Pruitt appealed to the district court, alleging that the Commission violated his due process rights. Alternatively, he sought a writ of mandamus against the individual defendants on the ground that the action of the Civil Service Commission in upholding the bypass without affording him due process constituted an abuse of discretion. He also charged that under the Civil Rights Act, 42 U.S.C. § 1983, and under the Fourteenth Amendment of the U. S. Constitution the then members of the Civil Service Commission violated his rights in that they acted under color of state law in depriving him of due process.

The trial court, after a hearing on motions for summary judgment filed by the plaintiff and by the defendants, dismissed the cause of action for want of jurisdiction.

Pruitt took an examination administered by the Firemen’s and Policemen’s Civil Service Commission for the vacant position of senior investigator in the Houston Fire Department on November 21, 1974, and established a No. 3 ranking on the eligibility list. Two days later, when the Commission certified to the fire chief the three highest names on the eligibility list, Pruitt’s name was first.

Paragraph E of Section 14, Article 1269m provides that when there is a vacancy to be filled the head of the department requesting a person to fill the vacancy “shall appoint the person having the highest grade, except where such Head of the Department shall have a valid reason for not appointing such highest name, and in such cases he shall, before such appointment, file his reasons in writing, for rejection of the higher name or names, with the Commission, which reasons shall be valid and subject to review by the Commission upon the application of such rejected person.” (emphasis added)

On November 26, 1974, the fire chief bypassed Pruitt, giving these reasons:

“(1) Mr. Pruitt placed third on the list of eligibles on the Senior Arson Investigator's exam which was held November 21, 1974, has no experience in the field of fire investigation and other areas of law enforcement and does not meet the requirements of the Civil Service Commission in that he is not certified as a peace officer by the Texas Commission on Law Enforcement Officers’ Standards and Education and he has not completed the Arson and Criminal Investigation School.
“(2) Mr. Pruitt lacks the experience in the field of supervision necessary for supervising people and decision making in this critical area of law enforcement that could result in serious liability against the individual investigator as well as the City of Houston.
“(3) The field of arson investigation, due to the fact that it is dealing with the lives of human beings in criminal matters, requires the highest degree of skill, initiative, sound judgment and knowledge of the law. Lack of experience in arson investigation and law enforcement in general and supervision in this field could lead to charges being brought against innocent persons, or decisions being made because of the lack of experience that might endanger not only the lives of the people of Houston, but also of the investigator and supervisor as well.
“(4) There are twenty (20) investigators in the Arson Section over which the four Senior Investigators will have supervisory responsibility. These men have all qualified as peace officers and have been performing the respective duties necessary to the efficient investigation of fire origins. They have had to make arrests, take statements and otherwise carry out peace officer responsibilities. In my judgment, it would be inappropriate for me to allow a fireman who has never served in the Arson Division and who does not hold a peace officer’s certification to ascend to a critical supervisory position having the responsibility of directing twenty men who would be more skilled and more qualified than their supervisor.
“(5) The ‘Announcement of Examination’ for the position of Senior Investigator specifically set out that: ‘To qualify for promotion, one must be certified as a peace officer by the Texas Commission on Law Enforcement Officers’ Standards and Education, have completed the Arson and Criminal Investigation School.’
“(6) Every other firefighter on the current eligibility list has both had experience in arson investigation and is a qualified, certified peace officer in the State of Texas. Specifically, I deem the next man on the eligibility list, Mr. Sterling Jones, more qualified to perform the duties of this particular position than the No. 3 man, Daniel Pruitt.
“(7) It is always with regret that I must bypass any firefighters; however, I deem my primary responsibility as Fire Chief, to be the efficient and proper operation of the department. To this end, I feel constrained to promote the most qualified men available.
“(8) This bypass of Fireman Pruitt is not intended to reflect poorly on his general performance in the Inspection Division, but rather to merely state, in sum, that there is a firefighter on the current eligibility list who is more qualified than he is for this particular position.”

Pruitt’s attorney promptly filed an appeal to the Firemen’s and Policemen’s Civil Service Commission requesting a hearing before the Commission to enable it “to make a determination as to whether or not Chief Little’s reasons for bypassing him for the position of Senior Investigator are valid.” The minutes of the Commission’s regular meeting on January 23, 1975, reflect:

“The Commission discussed the request for hearing on Mr. Daniel Pruitt’s bypass for the position of Senior Arson Investigator in the Fire Department. It was the opinion of the Chairman that the Commission should not take action on this matter when the head of the department has set out good reasons for the bypass. On motion by Mr. Henry, seconded by Mr. Laufman, the Commission voted unanimously to deny the request for hearing.”

We review the contents of some of the affidavits filed by Pruitt in the trial court in support of his motion for summary judgment. Before Pruitt began studying for the promotional examination, he had a friend ask the fire chief whether he would bypass Pruitt if he received a high ranking on the eligibility list because of the fact that he had not been certified as a peace officer and would not have completed Arson and Criminal Investigation School. Chief Little is alleged to have said he did not intend to bypass Pruitt for these reasons, and would give him time to qualify. It was fire department policy to provide such training to give such specialized training.

Pruitt’s summary judgment affidavits also state that his attorney was told by the assistant director of the Commission that he would be advised when a hearing on Pruitt’s matter would be scheduled. His attorney intended to subpoena witnesses, including the fire chief, to show 1) that the reasons he gave for bypassing Pruitt were not the real reasons why he did it; 2) that Pruitt was legally qualified and had the experience to perform the job in question; 3) that the practice in the department was to first appoint a fireman from the list and then to train him in the specialized skills needed for the job; and 4) that Pruitt was better qualified than the man appointed in his place. Pruitt was not notified of the consideration of his bypass by the Commission until after it had occurred on January 23, 1975, so he had no opportunity to cross-examine the fire chief or to call other witnesses.

The appellees’ position is that the Commission’s minutes show that it considered matters dealing with 119 employees at the January 23 meeting, so it was impossible to give each one personal notice, and Pruitt should have made a better effort to learn when the meeting would be held.

Two of Pruitt’s points of error may be considered together. They allege that the trial court erred

1) in dismissing for lack of jurisdiction his appeal from the order of the Civil Service Commission affirming the fire chief’s bypass of him, since he made a showing that such action of the Commission took place without affording him notice or an opportunity to be heard, in violation of his due process rights under ■ the Fourteenth Amendment.
3) in failing to grant his motion for summary judgment since the undisputed facts concerning the procedure followed by the Civil Service Commission in affirming the fire chief’s bypass establish that he was not afforded due process under the Fourteenth Amendment.

Section 18 of Article 1269m, the only statutory authority for judicial review of the Commission’s decisions, provides for appeal to the district court from an order of suspension, dismissal, or demotion but not from the sustaining of a promotional bypass. Cash v. City of Houston, 426 S.W.2d 624 (Tex.Civ.App.1968, writ ref. n. r. e.). Since the Civil Service Act does not provide for an appeal from such an order of the Commission, the administrative action of the Commission is final and the courts have no jurisdiction to hear an appeal unless the administrative action complained of violates a constitutional provision. It is well settled in Texas that an inherent right of appeal from an administrative body created by an act silent on the question will be recognized only where the administrative action complained of violates a constitutional provision. Firemen’s and Policemen’s Civil Service Commission v. Kennedy, 514 S.W.2d 237 (Tex.1974); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951).

Pruitt contends that he was deprived of his constitutional rights by the procedures employed by the Civil Service Commission. He says the threshold question in assessing this position is whether he has “a sufficient protectible interest in his statutory entitlement to promotion to invoke the protections of the due process clause of the Fourteenth Amendment, which applies to any significant taking of property.”

In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) a former police officer contended that his right to due process was violated when he was discharged from his job without a pretermination hearing to determine the sufficiency of the cause for his discharge. The U. S. Supreme Court stated:

“A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.”

In Amarillo v. Hancock, supra, a captain in the city fire department was ordered demoted by the Civil Service Commission under procedures set forth in Article 1269m. In Firemen’s and Policemen’s Civil Service Commission v. Kennedy, 514 S.W.2d 237, at 239, the Texas Supreme Court reviewed its decision in Hancock, saying it had reasoned that since there was at that time no statutory right to judicial review of a demotion, and since Hancock did not have a vested property right in the position of captain, the Court had concluded that an inherent right to judicial review was not required by due process, the only constitutional princi-pie that might have been violated in that case.

Mr. Pruitt had no vested property right in the position he seeks and no statutory right to judicial review, so due process does not give him an inherent right to judicial review. We overrule his first and third points of error.

The appellant’s fifth point is that the trial court erred in dismissing for want of jurisdiction his 42 U.S.C. § 1983 cause of action against the individual members of the Civil Service Commission who, while acting under color of state law, deprived him of due process rights under the Fourteenth Amendment.

That statute provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

This point is overruled. We have already held that the trial court had no jurisdiction over Pruitt’s appeal from the Commissioners’ decision and that the due process principle did not give him an inherent right to judicial review, so the trial court did not err in dismissing this part of his suit.

Pruitt’s second and fourth points of error are that the trial court erred in

2) dismissing his appeal for want of jurisdiction where the procedures followed by the Civil Service Commission in affirming the fire chief’s bypass violated the procedural protections afforded appellant under Section 16a and/or 17 of Article 1269m V.T.C.S.
4) in failing to grant plaintiff’s motion for summary judgment since the undisputed facts concerning the procedure followed by the Civil Service Commission in affirming the fire chief’s bypass established that he was not afforded the statutory protections provided him by Section 16a and/or 17 of Article 1269m, V.T.C.S.

Those sections provide:

Purpose of law; hearings
“Sec. 16a. It is hereby declared that the purpose of the Firemen and Policemen’s Civil Service Law is to secure to the cities affected thereby efficient Police and Fire Departments, composed of capable personnel, free from political influence, and with permanent tenure of employment as public servants. The members of the Civil Service Boards are hereby directed to administer the civil service law in accordance with this purpose; and when sitting as a board of appeals for a suspended or aggrieved employee, they are to conduct such hearing fairly and impartially under the provisions of this law, and are to render a fair and just decision, considering only the evidence presented before them in such hearing.
Procedure before commission
“Sec. 17. In order for a Fireman or Policeman to appeal to the Commission, it shall only be necessary for him to file within ten (10) days with the Commission a statement denying the truth of the charge as made, or a statement taking exception to the legal sufficiency of such charges and asking for a hearing by the Commission. In all hearings, of every kind and character, the employee shall have the right to be represented by counsel, the witnesses may be placed under the rule. All such hearings shall be public. The Commission shall have the authority to issue subpoenas for the attendance of witnesses.”

The appellant says a fireman who appeals his promotional bypass is an aggrieved employee and that the Civil Service Commission, when reviewing the validity of the reasons justifying the fire chief’s bypass, is sitting as a board of appeals, so he is entitled to a hearing as stated in Section 16a. He also contends that he had a right to a hearing because of Section 17. We overrule points of error two and four for the same reason we overruled points one, three, and five.

Pruitt’s sixth point of error is that the court erred in holding that it had no jurisdiction over his application for writ of mandamus to correct the individual defendants’ abuse of discretion in failing to accord him due process and statutorily mandated procedures in affirming the fire chief’s bypass of him. Pruitt’s petition asked the court to issue a writ of mandamus against the individual defendants compelling them to appoint him to the position of senior investigator because the decision of the fire chief in bypassing him and the Civil Service Commission’s decision in upholding the bypass constituted an abuse of discretion.

“The purpose of the writ of mandamus is to enforce performance of a duty clearly defined by law. One of its great objects is to prevent a failure of justice where there is no established specified remedy. In general, it is a remedy whereby a person or officer is required to do something that he wrongfully declines to do. But in exceptional cases it may be given a restraining effect, or one in reversal or amendment of a previous act.” 37 Tex. Jur.2d 588, Mandamus § 3.

The appellant argues that the individual members of the Commission are subject to a writ of mandamus because they abused their discretion 1) in failing to give him “notice of the hearing conducted by it on his appeal of the fire chief’s bypass and to extend him an opportunity to be heard," and 2) in failing to afford him a hearing “in conformity with the procedural protections mandated under § 16a and § 17 of Article 1269m.”

The general rule is that mandamus will not issue to compel the performance of an act which involves an exercise of discretion or judgment, but this rule is not without limitation, and the writ may issue to correct a clear abuse of discretion. This is especially so where there is no adequate remedy at law. Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966); Cash v. City of Houston, supra.

The parties disagree as to whether the provision in paragraph E of Section 14, Article 1269m, that the Department head’s reasons for the rejection of a higher name on an eligibility list “shall be valid and subject to review by the Commission” requires the Commission to have a hearing as provided in Section 17 of the Act. An affidavit of the chairman of the Commission states that the Commission reviewed the reasons stated by the fire chief in his bypass letter and found them to be valid. Further, that it also considered Pruitt’s request for a hearing on his bypass but concluded that since the fire chief’s bypass letter “involved no matters of contested fact and the chief’s subjective evaluations were within his discretionary prerogative, no potential benefit resulting from the hearing could be envisioned and the request was denied.”

We sustain the appellant’s sixth point. However, we do not agree with the allegation in his petition that the Commission’s failure to accord him a review of the fire chief’s bypass decision makes the bypass invalid, or, in the alternative, taints the Commission’s decision so as to prevent the application of the substantial evidence rule or substantially reduces the weight to be given to such decision. The appellant also alleged that the failure to appoint him was arbitrary, capricious, illegal, and an abuse of discretion.

There is a settled presumption in favor of the questioned order and the burden is on the appealing party to show that it is not supported by substantial evidence. This is a question of law. Cash v. City of Houston, supra, and the authorities there cited.

We affirm the trial court’s order in all respects except the dismissal of the mandamus count. We reverse and remand that aspect of the case for a determination of whether the administrative decision under review is reasonably supported by substantial evidence.

On Motions for Rehearing

We overrule the appellant’s motion for rehearing.

The appellees seek clarification of the basis for our sustaining the appellant’s sixth point of error. We hold that the trial court had jurisdiction to determine whether the Civil Service Commission failed to comply with the provision in Section' 14, paragraph E of Article 1269m that the fire chief’s reasons for not appointing Mr. Pruitt “shall be valid and subject to review by the Commission upon the application of such rejected person.” We cannot say as a matter of law that the review made by the Commission, as described in its chairman’s affidavit noticed above, was sufficient to comply with the statutory provision quoted in the preceding sentence.

We grant the appellees’ motion for rehearing. We again affirm the trial court’s order in all respects except its dismissal of the mandamus count. Under the undisputed facts presented to the trial court, we now remand this cause to the trial court for entry of a mandamus order directing the Commission to give notice to Mr. Pruitt and to afford him an opportunity to participate in the Commission’s review of the validity of the fire chief’s reasons for not appointing him.

Judgment rendered and original opinion filed December 23, 1976.

Appellees’ motion for rehearing granted; former judgment vacated, set aside and annulled.

Judgment rendered and opinion on rehearing filed February 17, 1977.


source: Caselaw Access Project

author: PRESLAR, Chief Justice.

license: Public Domain

text:
    Luis R. CABALLERO et al., Appellants, v. W. O. CARTER, Appellee.
    No. 6539.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 23, 1977.
    Long & Koehler, Ward L. Koehler, El Paso, for appellants.

      Studdard, Melby & Schwartz, Harold E. Crowson, Jr., El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a suit brought by the purchaser on an earnest money contract and by the realtors for their real estate commission on a written listing agreement against the Ap-pellee for his failure to comply with the earnest money contract. The trial Court granted Appellee’s motion for summary judgment. We affirm.

Appellee, W. 0. Carter, entered into an exclusive listing contract with Appellant, Norma Sons, for sale of the property here involved, and later he entered into an earnest money contract of sale with Appellant, Caballero. This suit was brought by Caballero, purchaser, seeking damages for Carter’s failure to perform under the earnest money contract of sale, and by Norma Sons and another realtor, Investors International, Inc., for the real estate commissions under the exclusive listing contract. Appel-lee Carter moved for summary judgment on the grounds that as a matter of law there was no genuine issue of fact as to one or more of his affirmative defenses consisting of Statute of Frauds, failure of conditions precedent, business homestead, failure of his wife as co-owner to join, and vagueness and uncertainty of the earnest money contract.

We are of the opinion that the affirmative defense of the Statute of Frauds was established as a matter of law.

The instruments upon which the Appellants rely do not meet the requirements of the Statute of Frauds. Tex.Bus. & Comm.Code Ann. Sec. 26.01. The instruments involved describe the property to be conveyed as follows:

The Listing Contract:
“Address 3635 Buckner El Paso, El Paso County, Texas
Lot * 2 and 3. Block _ Addition MONTANA INDUSTRIAL CENTER * * * * Excluding Triangle in South Part”
The Contract of Sale:
“ * * * the following described real estate in El Paso County, Texas, to-wit: “Approximately 1.2 acres plus all improvements on 3635 Buckner Street; Lots 2 and 3 excluding- triangle in southern part of Montana Industrial”

In order to satisfy the Statute of Frauds, the instruments must furnish within themselves, or by reference to some existing writing, the means or data by which the particular land can be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (Tex.1945); Owen v. Hendricks, 433 S.W.2d 164 (Tex.1968). This requirement applies to both the contract of sale and the listing agreement. Owen v. Hendricks, supra. In their brief, Appellants concede that this law is applicable and the defense is good as to Plaintiff’s original petition. But, Appellants urge that, by their first amended original petition, they pled a new theory by which they invoke the equitable powers of the trial Court to reform the listing contract and the contract of sale as to the description of the property; they say that their properly pled grounds for such reformation create fact issues.

Appellants’ contention in this regard fails because the description sought by reformation would not cure the defective description in the contracts involved. They would reform the contract by describing the land as it appears in a deed to Appellee Carter and his wife. This is a metes and bounds description, materially different from that in the two contracts involved, but having no mention of any triangle. Even with this description inserted in the contracts, there would still be the matter of “Excluding Triangle in South Part” or “excluding triangle in southern part of Montana Industrial.” With that exclusion in the description, there is no means by which the particular land to be conveyed can be identified with reasonable certainty; there is no way to know how large or how small the triangle is, whether it involves a major or a minor part of the land to be conveyed, or where it may be located out of the land to be conveyed. At best, if the contract were reformed, it still would not meet the requirements of the Statute of Frauds. In Wilson v. Fisher, supra, the description of the land to be conveyed was a “brick duplex & garage apt located at 4328-30 Cedar Springs * * *. Room at back not included.” As to such description, the Supreme Court said:

“ * * * Moreover, the instruments show that it was intended that a portion of the property was reserved from the sale, but the part which was to be included and that to be reserved is not shown. * * * Such a description is palpably insufficient to support a suit either for specific performance or for damages. * * * ff

In Perry v. Connelly, 462 S.W.2d 383 (Tex.Civ.App. Beaumont 1971, writ ref’d n. r. e.), the description of the property excluded was as follows:

“ ‘ * * * Lessor to cut off a portion of the northwest corner of the building for ingress and egress to the north side of the building (which north part of the property shall not be subject to the terms of the lease), * * *

The Court held that the contract was unenforceable, saying:

“ * * * Nowhere in the contract is it shown how much of the northwest corner of the building could be cut off so plaintiff (lessor) could have ingress and egress to the north side of the building.”

As indicated, we are of the opinion that the summary judgment was proper in that the defense of the Statute of Frauds was established as a matter of law. The judgment of the trial Court is affirmed.


author: RALEIGH BROWN, Justice.

text:
    Augustus DABNEY, in the Interest of Scott T. Dabney and Patricia Dabney, children, Appellant, v. Virginia DABNEY, Appellee.
    No. 4993.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 24, 1977.

      Robert O’Donnell, Dallas, for appellant.
    Michael S. Copeland, Law Office of F. Ward Steinbach, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is a domestic relations case involving the construction of Section 14.09 of the Texas Family Code.

Augustus Dabney and Virginia Dabney were divorced in 1970. The divorce decree awarded Virginia custody of two minor children of the marriage and ordered Augustus to pay as child support $150 per month or payment of fifteen percent of his gross monthly income not to exceed $300 per month and to maintain a $10,000 Veteran’s Administration life insurance policy naming Virginia as irrevocable beneficiary.

Virginia Dabney in October, 1975, filed a motion for contempt alleging that Augustus Dabney had failed (1) to pay 44 semimonthly installments of $75 each for child support; (2) to give a semi-annual accounting of his income; (3) to maintain the insurance policy; and (4) to defray certain medical expenses. Mrs. Dabney’s motion requests that Augustus Dabney be issued notice to appear and show cause why he should not be held in contempt. Her prayer prays that Mr. Dabney be held in contempt for willful disobedience of the court’s order and “movant prays for general relief.”

After a hearing before the court, judgment was granted Virginia Dabney against Augustus Dabney for child support payments in the sum of $3,300; $546 for premium payments made by Virginia Dabney on the Veteran’s Administration insurance policy; and $237 for medical expenses not paid by Augustus Dabney. A total judgment was entered against Augustus Dabney for the sum of $4,083»plus interest at the rate of 9% per annum, plus attorney’s fees in the amount of $814.44 plus interest at the rate of 9% per annum.

Augustus Dabney appeals contending the court erred (1) “in awarding a money judgment on a motion for contempt” and (2) “in awarding attorney’s fees in a 14.09(c) judgment.”

Section 14.09, Texas Family Code provides:

“Enforcement of Order
(a) Any order of the court may be enforced by contempt.
(b) A court may enforce an order for support as provided in Rule 308A of the Texas Rules of Civil Procedure or any subsequent version of the rule promulgated by the supreme court.
(c) On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.
(d) A parent may be compelled to testify fully in regard to his ability to support the child.”

This statute was construed in Harrison v. Cox, 524 S.W.2d 387 (Tex.Civ.App.—Fort Worth 1975, writ ref. n. r. e.), the court saying:

“We are convinced that the purpose of Art. 14.09 was to provide courts with efficient means of enforcing the payment of child support obligations and that the Legislature intended the different remedies provided by that Statute for the collection of child support to operate independently of each other as well as concurrently. In other words, it is not necessary for the facts in a case to be such that the court would be authorized to hold the defaulting parent in contempt of court before the court could render a judgment against him for delinquent child support payments as provided for in Art. 14.09(c). There are many instances where one of the remedies provided for by the Statute would be fruitless, but where the child support or a part thereof could be collected by means of the other remedy.”

See also Walker v. Sheaves, 533 S.W.2d 87 (Tex.Civ.App.—San Antonio 1976, writ ref. n. r. e.).

Although the instant case began as a contempt proceeding, there is no point of error challenging the judgment on the ground it was not supported by the pleadings. Therefore, it must be presumed that the issue of Augustus Dabney’s liability under the 1970 judgment of divorce was tried by consent and the court was justified in entering judgment pursuant to Section 14.-09(c), supra. Holder v. Holder, 528 S.W.2d 113 (Tex.Civ.App.—Tyler 1975, no writ); Rules 67 and 90, T.R.C.P.

Appellant’s first point of error must fail.

Rule 308-A, T.R.C.P., authorizes attorney’s fees for services in cases where the court has ordered periodical payments for child support to be taxed and collected as costs.

Although an award of attorney’s fees would not be proper if the conduct of Augustus Dabney would not support a finding of contempt, the court in Livingston v. Nealy, 382 S.W.2d 511 (Tex.Civ.App.—Corpus Christi 1964, writ ref. n. r. e.) held:

“ . . . where appellee was in default on his payments for child support, even though he was not punished for contempt, the trial court was authorized under Rule 308-A, Texas Rules of Civil Procedure, to assess a reasonable attorney’s fee in favor of appellant to be taxed as costs. . . . ”

Appellee would be entitled to attorney’s fees for only that portion awarded for services rendered in enforcing the decree providing periodic payment for support and as authorized by Rule 308-A. There is nothing in the judgment that indicates the attorney’s fees were awarded for any other service. The point of error is overruled.

The judgment is affirmed.


author: HALL, Justice.

text:
    Forest STATHAM, Appellant, v. T. L. JAMES & COMPANY, INC., and R. W. McKinney, Appellees.
    No. 5700.
    Court of Civil Appeals of Texas, Waco.
    Feb. 28, 1977.
    Rehearing Denied March 24, 1977.

      Charles B. McGregor, Beard & Kultgen, Waco, for appellant.
    Dan Mayfield, Waco, for appellees.
   HALL, Justice.

In March, 1975, appellant, Forest Stat-ham, was injured in a motor vehicle accident on U. S. Highway 84 in McLennan County where construction activity was being conducted by appellees, T. L. James & Company, Inc., and R. W. McKinney. When stopped by traffic because of the construction, Statham’s pickup was struck from behind by a truck owned by South Texas Independent Milk Producers Association and driven by its employee, Anastacio Hinojosa. Asserting negligent causation against Hinojosa, Statham brought suit against him and Milk Producers in July, 1975, seeking damages totaling $300,000 for his injuries. In January, 1976, the case was tried to a jury which made findings in favor of Statham on the negligence issues and set his damages at $15,000. On January 22, 1976, judgment was rendered on the verdict awarding Statham $15,000 against Milk Producers and Hinojosa, ordering them to pay that sum into the registry of the court “to be paid Plaintiff upon the application of Plaintiff for such payment,” finding that simultaneous with the entry of judgment “the Defendants have paid the total amount of the judgment into the registry of the court and have paid the costs of court,” and decreeing that execution would not issue on the judgment.

Statham has not applied to the court clerk for the $15,000, and none of it has been paid to him.

On March 8, 1976, Statham filed this suit against the appellees, James and McKinney, asserting the collision was caused by the negligence of their employees, and again seeking damages in the amount of $300,000 for his injuries.

Appellees filed a plea in bar to this second suit, alleging substantially the facts we have already recited, and asserting in effect that where a plaintiff has a cause of action against joint tortfeasors he may prosecute only one suit to satisfaction against one, or several, or all of them; that Milk Producers, Hinojosa, and appellees are joint tortfeasors; that Statham elected to sue only Milk Producers and Hinojosa without joining appellees; that the suit was prosecuted to judgment; that the judgment was satisfied by the deposit of the $15,000 into the registry of the court for Statham’s withdrawal; and that, accordingly, Stat-ham has had his day in court. The plea was sustained, and a take-nothing judgment was rendered in favor of appellees. Stat-ham appeals.

The parties come forward on this appeal on an agreed statement of facts in which they stipulate that appellees and Milk Producers and Hinojosa are joint tortfeasors, and that the plea in bar was tried and determined by the trial court on that basis.

It is the settled rule that the injured party may sue and proceed to judgment against all joint tortfeasors together, or any number less than all, or each one separately in successive suits; and that a judgment recovered against one of them, remaining unsatisfied, will not operate as a bar to an action against another; provided, however, the plaintiff may finally satisfy only one judgment. McGehee v. Shafer, 15 Tex. 198, 203 (1855); Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731, 734 (1952); Parma v. First National Bank of Cameron, 22 S.W.2d 957, 958 (Tex.Civ.App.—Austin 1929, writ ref’d); Bentley v. Halliburton Oil Well Cementing Co., 174 F.2d 788, 790 (5th Cir. 1949); 34 Tex.Jur.2d 556, Judgments, § 497.

There remains the question of whether the mere payment into court of the amount of a judgment obtained by separate suit against one joint tortfeasor bars further proceedings against the others where the payment was made without the plaintiff’s consent and is not accepted by him in satisfaction of his damages. Although this question has not been answered in Texas, the majority rule is that under such circumstances the payment is not a bar. 40 A.L.R.3d 1184 (1971); 50 C.J.S. Judgments § 761, p. 288 (1947). This is also the rule adopted in the Restatements. See Restatement, Torts § 886, Comment c, p. 465 (1939); and Restatement, Judgments § 95, Comment d, p. 471 (1942).

Recently, our Supreme Court expressly disavowed the so-called “unity of release” rule (that release of one joint tort-feasor releases all) and held a release made thereafter effective only as to those named or otherwise specifically identified in it. McMillen v. Klingensmith, 467 S.W.2d 193, 196 (Tex.Sup.1971). More recently, the Legislature enacted Article 2212a, Vernon’s Tex.Civ.St. (effective September 1, 1973), providing in part that if the existence and amount of a joint tortfeasor’s negligence are not submitted to the jury because he has paid an amount to the claimant in settlement, then the other joint tortfeasors “[are] entitled to deduct from the amount for which [each] is liable to the claimant a percentage of the amount of the settlement based on the relationship the defendant’s own negligence bears to the total negligence of all defendants.” This statute clearly shows that settlement with one joint tortfeasor affects the amount of the recovery from the others but does not bar suit against them.

Since a settlement with Milk Producers and Hinojosa would not bar this action, the mere payment into court of the amount of the judgment against them,.which was paid without Statham’s consent and has not been accepted by him, should not be a bar. We hold it is not, and align Texas with the majority rule.

The judgment is reversed and this cause is remanded for trial.


author: EVANS, Justice.

text:
    John D. BROWN et al., Appellants, v. Gary W. GIUFFRE et al., Appellees.
    No. 16840.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 3, 1977.

      Werner & Rusk, John C. Werner, Houston, for appellants.
    Garrett & Letbetter, Max Garrett, George Payne, Houston, for appellees.
   EVANS, Justice.

The appellants, as representative members of Traditional Catholics of Houston, Inc., a non-profit church corporation, brought this action against appellees, Gary W. Giuffre, Ronald J. Keller, and James D. Giuffre, for the purpose of removing them as officers and directors of that corporation. After hearing motions for summary judgment filed on behalf of both sides, the trial court denied the plaintiffs’ motion and entered judgment in favor of the appellees. Its judgment will be affirmed.

Traditional Catholics of Houston, Inc. held its organizational meeting in February 1975. At that meeting the appellees were elected as directors of the corporation and as president, vice president and secretary-treasurer. In February 1976 by unanimous vote, the same three directors elected themselves to serve in their same capacities as directors and officers of the corporation for an additional one year period.

In one point of error the appellants assert that the trial court erred in its holding that the directors and officers of the corporation could succeed themselves in such capacities for successive years.

The management of the corporate affairs of a non-profit church corporation is vested in its board of directors or trustees unless otherwise provided by the terms of its articles of incorporation or its by-laws. Article 1396-2.14, Texas Non-Profit Corporation Act. The directors constituting the first board of directors shall be named in the articles of incorporation and shall hold office until the first annual election of directors or for such other period as may be specified in the articles of incorporation or the by-laws. In the absence of a provision fixing the directors’ term of office, the term of office shall be for a period of one year. Article 1396-2.15(B).

The officers of a non-profit corporation are to be elected or appointed in such manner and for such terms not exceeding three years as may be prescribed in the articles of incorporation or the by-laws. In the absence of specific provision, officers are to be elected or appointed annually by the board of directors. Article 1396-2.20, Texas NonProfit Corporation Act.

The pertinent provisions of the by-laws of Traditional Catholics of Houston, Inc. are as follows:

ARTICLE IV-BOARD OF DIRECTORS
4.1 General Powers. The business, property and affairs of the corporation shall be managed and controlled by the board of directors and, subject to such restrictions as may be imposed by law, the articles of incorporation or by these by-laws, the board of directors may and are fully authorized to exercise all the powers of the corporation.
4.2 Initial Board of Directors. The initial board of directors shall be composed of the seven (7) persons named as such in the articles of incorporation and they shall hold office until the meeting of the initial board of directors for the completion of the organization of the corporation and for the election of new directors. Thereafter the number of directors, their term of office and the manner of their election shall be determined as provided in these by-laws.
4.3 Number of Directors, Election and Term of Office.
4.3(1) Election of Board of Directors. The initial board of directors shall nominate and elect three (3) succeeding directors which number shall comprise the total number of the board of directors. Thereafter such newly elected directors shall likewise at the end of their term nominate and elect their succeeding directors at an annual meeting for such purpose. Directors for each succeeding term shall be elected by a majority of the immediately incumbent directors.
4.3(2) Term of Directorship. Each director shall hold office for a one (1) year term until the next annual election of directors and until his successor shall have been elected and qualified.
ARTICLE V-OFFICERS
5.1 Officers. The principal officers of the corporation shall be a president, a vice-president, a secretary and a treasurer, who shall be elected by the board of directors. The principal officers shall be required to be directors. Where there are three (3) directors, two officers shall be held by the same director, except in no event shall the director who is president also hold the office of secretary.
5.2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of di- . rectors at the regular annual meeting of the board of directors. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently possible.
When authorized pursuant to the terms and conditions contained in these bylaws new principal offices may be created and filled at any meeting of the board of directors.
Each officer shall hold office until his successor shall have been duly elected and qualified.

The appellants contend that since the bylaws provide that the directors shall hold office for a one year term “until the next annual election of directors” and “until his successor shall have been elected and qualified,” that the term of a particular director is limited to the one year term and that such director cannot succeed himself to the same position of office. The appellants apply this same rationale to the by-law provisions relating to the officers of the corporation, and argue that it would be unreasonable and illogical to assume that the members of the corporation, in drafting its bylaws, intended to permit the initial directors and officers to perpetuate themselves in complete control of the corporate affairs by voting themselves into managerial positions over successive years.

Where the officers and directors of a non-profit charitable organization are elected for annual terms, it is not outside the ordinary meaning of the term “successor” to say that one who is elected may succeed himself. The word “successor” is generally considered to mean “one who follows”. Thompson v. North Texas National Bank, 37 S.W.2d 735 (Tex.Com.App.1931); International Association of Machinists v. Falstaff Brewing Corporation, 328 S.W.2d 778, 781 (Tex.Civ.App.-Houston 1959, no writ). The use of the word “successor” in the corporate by-laws of Traditional Catholics of Houston, Inc. does not require a construction that the party succeeding to the position must be a person different from the party who is being succeeded.

Under the statutes applicable to a non-profit church corporation, a by-law provision vesting in the board of directors the right to manage the corporate affairs, and thus to control the election of successors to the board, does not infringe upon any property or other enforceable right of the membership. Bailey v. American Soc. for Prevention of Cruelty to Animals, 282 App.Div. 502, 125 N.Y.S.2d 18 (1953). Where so authorized by statute, it is not unlawful, arbitrary or unreasonable for the board of directors of a non-profit charitable organization to be granted such powers. Fletcher Corporations, Vol. 8, Section 4210, p. 827 (Rev.1966); 19 Am.Jur.2d, Section 1083, p. 530; In re Mt. Sinai Hospital, 250 N.Y. 103, 164 N.E. 871, 62 A.L.R. 564 (1928). Since the members of Traditional Catholics of Houston, Inc. elected to vest full control of the affairs of the corporation in its board of directors, and since the provisions of the corporation’s by-laws do not prohibit the directors or the officers of the corporation from succeeding themselves to their same positions for successive years, the appellees are entitled to maintain the positions to which they have been duly elected.

The judgment of the trial court is affirmed.


author: PARK, Judge: VANCE, Judge,

text:
    Allan HARLOW, father and next friend of Johnny Lynn Harlow, an infant, appellant, v. Elisabeth Lee CONNELLY and Edward W. Connelly, appellees.
    Court of Appeals of Kentucky.
    Jan. 21, 1977.

      W. Banks Hudson, III, James F. Clay, Sr., Clay & Clay, Danville, for appellant.
    Elwood Rosenbaum, Leslie Rosenbaum, Lexington, James G. Sheehan, Jr., Danville, for appellees.
    Before HOGGE, PARK and VANCE, JJ.
   PARK, Judge:

This action was commenced in the Boyle Circuit Court to recover for personal injuries suffered by Johnny Lynn Harlow on January 16, 1973, while riding as a passenger in an automobile owned by Edward W. Connelly and driven by his daughter Elisabeth Lee Connelly. As Johnny Lynn Harlow was a minor at the time the action was commenced, the action was instituted by his father as next friend. The trial court sustained the defendants’ motion for summary judgment, and Harlow prosecutes this appeal from the judgment entered dismissing the complaint.

Two issues are raised by this appeal. First, was Johnny Lynn Harlow contributo-rily negligent as a matter of law by riding with Elisabeth Lee Connelly at a time when she was intoxicated? Second, was Ms. Con-nelly’s conduct on the occasion in question such that it constituted wanton or gross negligence which would not be barred by any contributory negligence on the part of Harlow?

In concluding that Harlow was contributorily negligent as a matter of law, the trial court applied the three-fold test enunciated in Isaac v. Allen, Ky., 429 S.W.2d 37 (1968). As stated by the Court of Appeals:

“ * * * the question must be left to the jury unless three things are obvious, (1) that the driver had been drinking to the extent that his ability to drive was affected, (2) that the person electing to ride with him must have known it, and (3) that a prudent person faced with the same choice under like circumstances would not have ridden with the driver.” 429 S.W.2d at 40.

The parties agree that this test should be applied in this case, but they would reach different results.

With respect to the first test, it is clear that the trial court correctly concluded as a matter of law that the driver, Elisabeth Lee Connelly, had been drinking to the extent that her ability to drive was affected. Ms. Connelly was traveling at a high rate of speed when she lost control of the automobile and crashed. She admitted that her judgment was impaired as a result of her drinking. In his brief before the trial court, Harlow argued that he was injured because Ms. Connelly was operating her automobile “at a high rate of speed in a state of intoxication so great that she did not know what she was doing or the speed she was traveling.” In his appellate brief, Harlow concedes that the first test of the Isaac case was satisfied and that Ms. Con-nelly was intoxicated at the time of the accident. The trial court did not err in holding that Ms. Connelly had been drinking to the extent that her ability to drive was affected.

A more serious problem is raised with respect to the second test in the Isaac case. A short narrative of the undisputed facts is required in order to dispose of this issue.

At the time of the accident, Johnny Harlow was seventeen years of age. By an order of the juvenile session of the Boyle County Court, Harlow had been committed to the Department of Child Welfare for an indeterminate period on November 21,1972. At the time, Elisabeth Lee Connelly was employed as a social worker by the Department of Child Welfare. She was twenty-five years of age. Ms. Connelly had been acquainted with Harlow through her capacity as a foster care worker.

At approximately nine o’clock on the evening of the accident, Harlow and another juvenile, Troy Stratton, caught a ride to Ms. Connelly’s residence, a cabin on the Wells Landing Road. Troy Stratton was sixteen years of age at the time. Ms. Con-nelly was not at the cabin when Harlow and Stratton arrived, but she returned to her cabin approximately ten minutes later. At that time, Harlow observed that Ms. Con-nelly was drinking from 'a sixteen ounce can of beer. .

Harlow and Stratton remained at Ms. Connelly’s cabin for several hours. The parties consumed various quantities of different alcoholic beverages. On his deposition, Harlow admitted that he observed Ms. Connelly drink the can of beer, a quantity of wine, and a small amount of gin. Strat-ton testified that both he and Ms. Connelly were intoxicated. Ms. Connelly could not recall exactly what she drank the night in question.

At approximately 12:30 Ms. Connelly, Harlow and Stratton all drove to Danville in the Connelly automobile for the purpose of buying beer, as they had consumed all of the intoxicants at the cabin. The search for beer in Danville proved a failure, and the accident occurred at approximately 1:00 a. m. as the three were returning to Ms. Con-nelly’s cabin on the Wells Landing Road. According to Harlow, Ms. Connelly was traveling at approximately 90 m. p. h.when she lost control of her automobile.

According to Stratton, Harlow noted Ms. Connelly’s erratic driving while they were in Danville. However, Harlow testified that Ms. Connelly never appeared intoxicated to him and that he noticed nothing unusual about her driving until they were returning from Danville to the cabin. In answer to a question whether he thought Ms. Connelly was “cold sober,” Harlow testified:

“Maybe not cold sober, but, you know, I didn’t think she had that much.”

He also testified that he noticed Ms. Con-nelly speeding up to over 90 miles per hour approximately five to seven hundred yards from the point of the accident. Harlow further contends that he asked her to slow down, but he did not ask her to let him out.

Harlow argues that a jury issue was raised with respect to his knowledge of Ms. Connelly’s intoxication merely by his denial that he knew she was intoxicated. We disagree. Harlow had been drinking with Ms. Connelly for more than three hours. He observed her consume at least three different types of alcoholic beverages. The parties left the Connelly cabin for the sole purpose of securing additional intoxicating beverages which they intended to consume. Ms. Connelly was admittedly intoxicated. Under these circumstances, the law will not permit Harlow.to deny that he did not know of her condition.

Much of Harlow’s appellate brief is devoted to the argument that there was a jury issue whether Harlow himself was intoxicated. Harlow admitted that he had consumed whiskey, beer, wine, and gin prior to the accident. However, whether he was in fact intoxicated is immaterial. The law imposes the same degree of care upon a voluntarily intoxicated person as is imposed upon a sober person of ordinary prudence under similar circumstances. Wootton v. Dixon, 312 Ky. 521, 228 S.W.2d 428 (1950); Straughan’s Adm’r v. Fendley, 301 Ky. 209, 191 S.W.2d 391 (1945).

Harlow makes the point that he was a minor at the time of the collision, and he argues that he should not be held to the same standard of care as an adult. A minor plaintiff is under the duty to exercise that degree of care for his own safety as would usually be exercised by an ordinarily prudent minor of the same age, intelligence and experience of the plaintiff. Williamson v. Garland, Ky., 402 S.W.2d 80 (1966). Harlow’s minority has no real significance when this standard is applied to the facts in the case. Harlow had been seventeen years of age since the previous September. He had been drinking alcoholic beverages since he was fifteen years of age.' Harlow had consumed hard liquor prior to the evening in question, and he admitted that he had been drunk on bourbon whiskey before. Harlow’s minority was no bar to the granting of a summary judgment on the grounds of his contributory negligence. See, Allgeier v. Grimes, Ky., 449 S.W.2d 911 (1970); She lanie v. National Fireworks Association, Ky., 487 S.W. 921 (1972).

The third test set forth in the Isaacs case is also satisfied. No prudent person would have ridden with Ms. Connelly under the circumstances. Ms. Connelly lost control of her automobile while driving at an extremely high rate of speed, clearly indicating that her ability to operate her automobile was affected by her drinking. No prudent person would have entered Ms. Con-nelly’s automobile in order to pursue an early morning search for additional liquor, with knowledge that she had been consuming a variety of alcoholic beverages over a three hour period.

The trial court correctly concluded that all three tests of the Isaacs case had been satisfied. The trial court did not err in granting a motion for summary judgment on the issue of Harlow’s contributory negligence.

In sustaining the motion for summary judgment, the trial court concluded as a matter of law that Ms. Connelly was “grossly, willfully and wantonly negligent” and that “not only was there absence of slight care; there was no care at all.” Harlow asserts that any contributory negligence on his part is not a defense because of the aggravated nature of Ms. Connelly’s negligence. Harlow relies upon the rule that ordinary contributory negligence of a plaintiff constitutes no defense when the defendant has acted wantonly or reckless, or has intentionally injured the plaintiff. See, Bickel v. Bennett, 267 Ky. 232, 101 S.W.2d 943 (1937); First National Insurance Co. of America v. Harris, Ky., 455 S.W.2d 542 (1970).

Connelly does not quarrel with the general rule that contributory negligence is no defense to aggravated negligence. However, she relies upon the exception to that rule in cases in which the plaintiff’s conduct is of the same aggravated nature as the defendant’s conduct. Connelly cites § 503 of the Restatement (Second) of Torts, which provides, in part, as follows:

“A plaintiff’s contributory negligence does not bar recovery for harm caused by the defendant’s reckless disregard for the plaintiff’s safety.
* * * * * *
“(3) A plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff’s safety is a legal cause of the plaintiff’s harm.”

See also, Restatement (Second) of Torts, § 482(2).

In 2 Harper and James, The Law of Torts § 22.6, at Pages 1214-15 (1956), the rule is stated:

“While contributory negligence does not bar an action for injury wantonly inflicted, plaintiff’s conduct will bar such an action if it is itself a wanton or willful exposure of his own person or property to the risk — wantonness will bar an action for wanton misconduct. * * * This notion has been frequently invoked in actions under automobile guest statutes where plaintiff must prove wantonness and will not be barred by ordinary contributory negligence. If plaintiff knows that his driver-host is drunk, for instance, or that he has a physical handicap which makes it dangerous for him to drive, the guest’s voluntary self exposure to such a risk may be so unreasonable as to bar him under the present principle even if the court sees in defendant’s conduct a wanton breach of a duty to use care toward the plaintiff.” (Emphasis added)

In sustaining the motion for summary judgment, the trial court relied on a leading case in support of the foregoing rules, Schubbring v. Weggen, 234 Wis. 517, 291 N.W. 788 (1940).

In the present case, Harlow had been drinking with Ms. Connelly for over three hours. He had ample opportunity to observe her admitted intoxication. There was no compelling necessity for Harlow to ride with Ms. Connelly. The only reason for the trip to Danville was to acquire more alcoholic beverages. Harlow had an opportunity to leave the car while they were in Danville searching unsuccessfully for more beer. Considering all of the circumstances in the case, the court concludes that the negligence of Harlow had the same quality or degree as the negligence of Ms. Connelly. Consequently, Harlow’s negligence is a defense to the action.

The trial court did not err in granting a motion for summary judgment. The judgment of the trial court should be affirmed.

HOGGE, J., concurs.

VANCE, J., dissents.

VANCE, Judge,

dissenting:

I respectfully dissent because a summary judgment cannot properly be entered unless there is no genuine issue of fact to be determined.

Appellant’s claim cannot be denied on the ground of contributory negligence unless he knew (or should have realized) that Elisabeth Connelly had been drinking to the extent that her ability to drive was affected. Isaac v. Allen, Ky., 429 S.W.2d 37 (1968).

Whether appellant knew this or should have realized it is a question of fact which should be determined by a jury unless the evidence is such that reasonable minds are compelled to only one conclusion.

In depositions filed and considered by the court the appellant testified that Ms. Con-nelly did not appear intoxicated to him and that he noticed nothing unusual about her driving until a short distance before the accident.

A jury would have been entitled to believe him unless other circumstances rendered his testimony unbelievable as a matter of law.

Appellant had been in the presence of Ms. Connelly and another companion constantly for approximately three to three and one-half hours prior to the accident. During that time appellant observed Ms. Connelly drinking from a sixteen-ounce can of beer plus an unknown part of one bottle of wine and a small amount of gin.

It is my opinion that these circumstances would easily support, but do not compel, a finding that appellant must have known Ms. Connelly’s ability to drive was affected.

Appellant knew Ms. Connelly drank from a can of beer but whether she drank the whole can or only part of it was not established. The gin bottle had only about one-half inch of gin in it and it was not shown how much of that was drunk by Ms. Con-nelly and how much by the others. The quantity of wine consumed by Ms. Connelly was not shown.

Although the three persons involved drank all of the alcoholic beverages they had during a period of three to three and. one-half hours, a jury would not be compelled to believe that appellant saw Ms. Connelly consume any more than a part of one can of beer, a swallow or two of wine and a sip of gin during that period.

Such small consumption would not compel appellant to realize Ms. Connelly was intoxicated. The mere fact that she was intoxicated does not mean that he had to realize it — or else there would be no need for the second test established by Isaac v. Allen, supra.

Perhaps a jury would reach the same conclusion as the trial judge, but we are not entitled to assume this would happen.

I think there was a genuine question of fact in this case about which reasonable men could reach different conclusions on the basis of the evidence and therefore summary judgment was not proper. I would reverse the judgment for further proceedings.


author: GANT, Judge.

text:
    Mark W. TARRANCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.

      Mark W. Tarrance, pro se.
    Robert F. Stephens, Atty. Gen., Commonwealth of Kentucky, George Geoghegan, III, Asst. Atty. Gen., Frankfort, Morris Lowe, Commonwealth’s Atty., Bowling Green, for appellee.
    Before GANT, COOPER and HOWER-TON, JJ.
   GANT, Judge.

This is an appeal from an order of the Warren Circuit Court denying the prisoner credit for penitentiary time. The issue is whether it was in violation of either a Kentucky statute or the 14th Amendment to refuse to apply credit for time served to each of two sentences which the Appellant had been serving concurrently in the State Penitentiary, but which were subsequently ordered to be served consecutively after Appellant won a reversal of one of the convictions and was again convicted. The argument of the prisoner is that since he was previously serving both sentences simultaneously, the 29 months he served under the first conviction should now be credited to each of the sentences, so that he would have an effective aggregate credit of 58 months to the present consecutive terms.

A chronology of the relevant facts is as follows:

1. August 22, 1973 — Tarrance pled guilty to false imprisonment in Warren Circuit Court and was sentenced to five years in the penitentiary.

2. October 11, 1973 — He was convicted of rape by a jury in Butler Circuit Court and given a sentence of life without the benefit of parole. The Trial Court did not indicate that it was to be served consecutively with the previous sentence; thus it was served concurrently.

3. April 11, 1975 — The Kentucky Court of Appeals reversed the rape conviction because of trial errors.

4. March 5, 1976 — After reindictment for the same charge of rape and a change of venue to Warren Circuit Court, he pled guilty and received a sentence of five years to be served consecutively with the sentence for false imprisonment.

5. March 31, 1976 — Tarrance filed a motion in Warren Circuit Court to be granted credit on both sentences for time served.

6. April 2, 1976 — His motion was sustained and the Department of Probation and Parole was ordered to compute the proper time.

7. April 12,1976 — An order was entered specifying that Tarrance was to receive 727 days of credit on the sentence for rape.

8. May 19, 1976 — An order was entered stating that the April 12 order was erroneous, that he was entitled to no credit and the order allowing credit was set aside. It is from this final order that he appeals.

Appellant contends that to refuse application of credit to each sentence is a denial of due process and equal protection, and in addition is a violation of Ky.Rev. Stat. 431.155. Unless there exists some Constitutional or statutory limitation, the sentencing power is of course discretionary with the trial judge.

Both parties cite North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, (1969) in support of their arguments. We believe Pearce to be of little help and it is certainly not dispositive of the issue. In that case the Supreme Court held that the Fifth Amendment guarantees against double jeopardy, enforcible upon the states by the Fourteenth Amendment, “absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” The Pearce decision, however, was concerned with Constitutional restrictions upon imposition of a harsher sentence upon conviction after retrial. Further, the case did not involve concurrent sentences later altered to consecutive sentences. The above quoted language might therefore be taken better as a guide than a master, and be considered in light of the particular circumstances of the case.

For example, in Thacker v. Garrison, 527 F.2d 1006 (4th Cir. 1975) time served by Thacker on a subsequently vacated conviction had then been credited to another sentence the prisoner was facing. After the defendant had been convicted and sentenced upon retrial, he complained that his new sentence should reflect credit for time served under the previous conviction. The 4th Circuit reasoned that while a literal reading of Pearce would dictate such a result, the time had already been credited to another sentence and therefore all Constitutional demands had been satisfied.

The only case discovered with a fact situation similar to the one at bar is People ex rel. Williams v. LaVallee, 57 Misc.2d 1062, 294 N.Y.S.2d 52 (S.Ct., Clinton County, 1968). It is interesting to note that the court in its opinion mentioned that no reported precedent had been found resolving the problem of this fact situation. In Williams the prisoner had received four concurrent sentences in 1948, the longest being a thirty-to-sixty year term for robbery. In 1958, the 1948 sentences were vacated and Williams was resentenced, two of the original four sentences being suspended. Williams at the resentencing received a five-to-ten year term for grand larceny and a ten-to-twenty year term for burglary, to be served consecutively. Upon being granted ten years credit on the aggregate fifteen-to-thirty year term Williams petitioned the court for ten years credit application to both sentences. Note that the petition was filed ten years after his second sentencing.

The Clinton County Supreme Court concluded that Williams should receive ten years credit on each sentence. The court speculated that the offenses arose out of the same transaction and thus should have run concurrently (a statutory requirement) in the first place. Declining to wait for a transcript, however, the court rests its decision on its interpretation of a New York statute pertaining to credit for time served under a reversed or vacated conviction. The statute states in pertinent part that “any time spent by a person under the original sentence shall be deducted from and credited to the term of the sentence subsequently imposed with respect to (the same) crime.” It would appear from any reasonable interpretation of the statute the New York court had very little discretion to exercise.

Turning to Kentucky statutory limitation upon the sentencing discretion of the trial judge, the Appellant relies on Ky.Rev.Stat. 431.155 as controlling the circumstances of this case. The Commonwealth argues that Ky.Rev.Stat. 431.155 was repealed as of January 1, 1975, and that since Tarrance was sentenced upon the second conviction in March, 1976, Ky.Rev.Stat. 532.120 is the appropriate statute pertaining to concurrent and consecutive sentences. While there might be some rationale for that position, Ky.Rev.Stat. 500.010 and 500.040 appear dispositive. Ky.Rev.Stat. 500.010 states: “Ky.Rev.Stat. Chapters 500 to 534 shall be known as the Kentucky Penal Code,” and Ky.Rev.Stat. 500.040(1) states in part: “The provisions of this Code shall not apply to any offense committed prior to January 1, 1975 . . . . Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted.” As both offenses occurred prior to January 1, 1975, we are of the opinion that former Ky.Rev.Stat. 431.155 controls. That statute provides: “(1) Any person convicted and sentenced to a state penal institution shall receive a credit on his sentence for the amount of time the person has spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence. Where the charge or charges culminate in more than one sentence, the credit shall be applied as follows:

(a) If the sentences run concurrently, the credit shall be applied against each such sentence;

(b) If the sentences run consecutively, the credit shall be applied against the aggregate term of the sentences.” (Emphasis added.)

Most important, it is clear that this provision was drawn in contemplation of crediting a convicted defendant with time spent in custody awaiting trial, and not with time served in the penitentiary after conviction. Further, the language of the statute renders the provision inapplicable to the circumstances of this case as it speaks of time spent in custody “as a result of the charge that culminated in the sentence.” Clearly, the time Tarrance spent in the penitentiary was not as a result of the latest charge of rape, but was served for the previous charge of and conviction for rape and for the charge of and conviction for false imprisonment. In any event, if Ky.Rev.Stat. 431.155 could by any means be interpreted to pertain to the present circumstances it would not be helpful to Tarrance. In fact, Subsection (b) supports the decision of the sentencing court.

Based upon current law pertaining to the circumstances of this case, we believe that the trial judge was correct to exercise his discretion in setting aside the order specifying that Tarrance was to receive 727 days of credit on the sentence for rape. The question before this Court must be whether he abused that discretion.

From a technical standpoint it might seem that since he was indeed serving both sentences simultaneously under the first convictions in 1973, the Appellant should be able to apply that time served to both of the present sentences. On the other hand, the Appellant, through the appellate and retrial procedure, has been fortunate enough to trade a life without parole sentence for a five-year sentence on the same offense. He now wishes to press his fortune further because the sentences in the first instance were left to run concurrently. With this in mind, this Court is of the opinion that the Trial Judge did not abuse his discretion.

The Appellant lists in his brief as a “Question Presented” his “Right to be Present in Court When Said Order Was Entered.” He cites no authority for and does not argue this “Question.” Therefore, this Court is not inclined to review that issue.

For the above stated reasons, circuit court’s order is affirmed.

All concur.


author: WILHOIT, Judge.

text:
    James R. YOCOM, Commissioner of Labor and custodian of the Special Fund, Appellant, v. Stacy E. HOPKINS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Gemma M. Harding, Dept, of Labor, Louisville, for appellant.
    Kelsey E. Friend, Pikeville, for appellee Stacy Hopkins.
    Baird & Baird, Pikeville, for appellee Mill Branch Coal Co.
    William L. Huffman, Director, Workmen’s Compensation Board, Frankfort, for appellee Workmen’s Compensation Bd.
    Before WILHOIT, WHITE and WIN-TERSHEIMER, JJ.
   WILHOIT, Judge.

This appeal is from a judgment of the Pike Circuit Court reversing an award of the Workmen’s Compensation Board as it related to the computation and apportionment of liability.

The Board found the claimant, Stacy E. Hopkins, to be 100 percent permanently disabled. It found that 5 percent of this disability was due to an injury sustained by him in 1973 and that 50 percent was due to an injury sustained in 1974. Both injuries took place while he was employed by the Mill Branch Coal Company. Forty percent (40%) of his disability was determined to be the result of his combined injuries which caused a greater disability than the simple addition of the percentage of disability occasioned by each. Five percent was determined to be due to a noncompensable prior active disability caused by an injury in 1970 or 1971.

The Board computed its award by multiplying the maximum allowable weekly benefit at the time of injury by the percentage of disability occasioned by each injury. $4.20 was awarded from the date of the 1973 injury (5% X $84.00); $42.00 was awarded from the date of the 1974 injury (50% X $84.00); and $33.60 was ordered to be paid from the Special Fund (40% X $84.00). Claimant appealed to the Circuit Court contending he was entitled to the maximum weekly benefit of $84.00, to be apportioned between Mill Branch and the Fund. The Circuit Court concluded that the Board had erred as to its computation of the amount due from the Special Fund. It held that under KRS 342.120 the Claimant was entitled to recover $35.40 per week from the Special Fund until March 10,1979, and thereafter $37.95 per week for so long as he remains disabled.

The Circuit Court found that the proper manner for computing the Fund’s liability was to reduce the maximum allowable weekly benefit by the amount payable by the employer and by the prior 5 percent noncompensable active disability which it found to have occurred in June, 1971. ($84.00 - $4.05 - $42.00 - $2.55 = $35.40). Had this injury been compensable the Claimant would have received $2.55 per week for 400 weeks. Four hundred weeks from the June, 1971 injury the amount due from the Fund would increase by $2.55. The court interpreted KRS 342.120(4) to require the exclusion of this amount for that period and thereafter to require its payment by the Fund. The pertinent portion of that Statute reads as follows:

“The remaining compensation for which such resulting condition would entitle the employe, including any compensation for disability resulting from a dormant disease or condition aroused into disabling reality by the injury or occupational disease, but excluding all compensation which the provisions of this chapter would have afforded on account of prior disabling disease or injury had it been compensated thereunder, shall be paid out of the special fund . . .

The Fund appeals to this Court asking that the award of the Board be affirmed and that of the Circuit Court be reversed. Both the Fund and Appellee, Mill Branch Coal Company, contend that the Circuit Court erred in not excluding from its award 5 percent to account for the noncompensa-ble disability. They urge that the proper computation should be made by deducting $4.20 (5% of $84.00) from the statutory maximum allowable weekly benefit.

Appellee/Claimant insists that the award was not properly computed by either the Board or Circuit Court in light of C. E. Pennington Co. v. Winburn, Ky., 537 S.W.2d 167 (1976) which was finally decided after the Board’s award. He asserts that the proper formula to be used is to multiply the Claimant’s average weekly wage at the time of his last injury by 62½% (the appropriate factor where Claimant, as here, had three or more dependents) and by 95% (100% minus the 5% noncompensable disability). The product thus arrived at should be limited then to the maximum allowable weekly benefit.

Appellee employer contends that Pennington, supra, has no application to this case since it involved a case of permanent partial disability and we are here concerned with total disability. We do not believe that this distinction in any way precludes the application of the Pennington rule to this case and we hold that it applies.

The decisions interpreting KRS 342.120(4) reveal that the proper course for the Board in apportioning an award between the employer and the Special Fund is to first determine the liability of the employer. Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). This should be done by multiplying the Claimant’s average weekly wage at the time of injury by the appropriate percentage factor, as determined by the number of the Claimant’s dependents, and then multiplying this product by the percentage of occupational disability. Pennington, supra. Such procedure should be followed for both the 1973 injury and the 1974 injury. This determines the liability of the employer subject, of course, to the maximum allowable weekly benefit, should it exceed it.

The Special Fund then becomes liable for the 40 percent disability assessed against it which should be computed as set out above. This final figure is payable by the Special Fund to the extent that when added to the amount payable by the employer it does not exceed the maximum allowable weekly benefit.

Here, the Board made no findings of fact as to Hopkins’ average weekly wage at the time of either, his 1973 or 1974 injury. The Judgment of the Circuit Court is, therefore, reversed with instructions that it remand this case to the Workmen’s Compensation Board to make the necessary findings of fact and computations in accordance with this Opinion and the respective rights of the parties, taking into account that the Fund did not appeal from the award of the Board nor did the Claimant prosecute a Cross-Appeal from the decision of the Circuit Court.

All concur.

      . The Circuit Court found that in 1973 the maximum allowable weekly benefit was $81.00 (5% X $81.00 = $4.05).


author: WHITE, Judge.

text:
    ROADRUNNER MINING, ENGINEERING & DEVELOPMENT CO., INC., et al., Appellants, v. The BANK JOSEPHINE, a corporation, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Discretionary Review Granted March 30, 1977.
    Gary C. Johnson, W. Sidney Trivette, Pikeville, for appellants.
    Joe Hobson, Prestonsburg, for appellee.
    Before WHITE, WINTERSHEIMER and WILHOIT, JJ.
   WHITE, Judge.

On November 24, 1975, the Bank Josephine instituted suit against the appellants to recover on five promissory notes dated January 18, 1975; March 4, 1975; March 17, 1975; May 23, 1975; and May 25, 1975, respectively. These notes were secured by a real estate mortgage covering property owned by the appellants. The Bank Josephine also had a secured interest in the coal mining equipment which was purchased with the loans. In its complaint the Bank Josephine asked for judgment for the following amounts: $148,197.76; $34,827.15; $46,618.52; $69,838.63; and $40,490.86.

The original complaint asked that the bank be adjudged to have a first and prior lien against the personal property and real property and that both the personal and real property be sold to satisfy the payment of the notes. Each of the appellants was served with summons on this complaint.

When appellants failed to appear in this action, the appellee bank filed a motion for entry of a default judgment on June 7, 1976. Appellee then filed its first amended complaint on June 10, 1976. In its first amended complaint appellee adopted and made a part of the amended pleading all the allegations of the original complaint not inconsistent with the averments of the amended pleading. Judgment was asked for the following sums: $148,482.76; $35,-740.75; $46,903.52; and $40,750.86.

On June 11,1976, a default judgment was entered pursuant to the prayer of the original and the first amended complaint. It provided that the Bank Josephine had a first lien against the real estate to secure the payment of $148,482.76, and also had a lien against the personal property to secure the remaining three notes.

A motion to set aside this default judgment was filed on June 16, 1976. On this same day a second amended complaint was filed adopting all the consistent allegations of the two prior complaints and which attempted to give the correct personal property upon which plaintiff has a lien and the notes secured by such personal property. On June 18,1976, an order setting aside the default judgment of June 11, 1976, was entered. On that same day a default judgment was entered granting the relief asked for in the second amended complaint.

At no time before final judgment did appellants enter an appearance. Neither was a summons nor a warning order issued to notify appellants of the first or second amended complaints.

After the default judgment of June 18, 1976, was entered, the defendants moved to set it aside. Their motion was overruled on July 9, 1976, and the defendants bring this appeal.

As grounds for reversal, the appellants argue that the failure by the appellee to give the notice required by Civil Rule of Procedure 5.01 makes the resulting default judgment void. We agree that CR 5.01 disposes of this case.

Rule 5.01 provides as follows:

“Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, . . . shall be served upon each party except those in default for failure to appear. Parties so in default shall be given notice of pleadings asserting new or additional claims for relief against them by summons or warning order issued thereon as provided in Rule 4.”

No doubt this rule, CR 5.01, is based upon the case law in our state which holds that a default judgment is void if entered on an amended complaint which asserts new or additional claims and no summons has been served on the amended complaint. Dameron v. Osenton, 6 Ky.Law Rep. 218, 12 Ky. Opin. 723 (1884); Pearce v. Lancaster, 20 Ky.Law Rep. 1218, 49 S.W. 12 (1899); Cope v. Slayden, 24 Ky.Law Rep. 1734, 72 S.W. 284 (1903). In order to come under this rule, however, new or additional claims must be asserted.

In carefully examining the complaints filed in this action, we can find no new or additional claims being made by the appel-lee bank. It is true that the amended complaints each ask for a few hundred dollars more on each note, but this increase is completely offset by the exclusion in the amended complaint of a demand for judgment for $69,838.63. Furthermore, the fact that the appellee bank was more specific in its demands for liens in the amended complaints does not affect our decision, because the appellee had clearly demanded in the original complaint that all such liens be adjudged and that the property be sold to satisfy the debt.

Appellant further contends it was error for the trial court to grant the June 18, 1976 default judgment on a second amended complaint that was filed without leave of court. This may be an irregularity; but even so, we will not set aside a judgment for a mere procedural irregularity. Skinner v. Morrow, Ky., 318 S.W.2d 419 (1958). The proper standard to be applied here is provided in CR 61.01 in that no error or defect in any ruling or order, or in anything done or omitted by the court, is grounds for disturbing a judgment unless refusal to disturb the judgment appears inconsistent with substantial justice. Ryan v. Collins, Ky., 481 S.W.2d 85 (1972). We must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties. CR 61.01.

Since appellants were in default for failure to appear, their rights were not prejudiced by this irregularity.

The judgment is affirmed.

All concur.


author: HAYES, Judge.

text:
    Dorris Joe ROBINSON, Appellant, v. Ruthie Jane ROBINSON, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.
    Sam T. Jarvis and James Tardío, Jarvis, Payton & Kinney, Greenville, for appellant.
    Harold M. Streets, Streets & Cisney, Greenville, for appellee.
    Before HAYES, LESTER and PARK, JJ.
   HAYES, Judge.

This appeal arises out of a property disposition made in connection with a decree of dissolution of marriage. The appellant, Dorris Joe Robinson, contends that the trial court should have made specific findings of fact as to the value of certain properties and that the division of property was unfair.

During marriage appellant and appellee, Ruthie Jane Robinson, were the owners of a market and a drive-in restaurant. Appellant had purchased the drive-in restaurant prior to the marriage, but final payments were made on this business after marriage which amounted to “/⅛ of the purchase price. Before marrying appellant, appellee had been ½ record owner of the Apple House Market. The parties then purchased the entire interest in the market and a deed from appellee and her brother was given to appellee and her husband. In addition to the above properties, the parties also bought a home while married. The trial was by deposition and following the close of proof the special judge, William G. Fuqua, made determinations concerning custody, support and disposition of property.

With regard to the above mentioned property, the trial judge divided it as follows:

1. The Apple House Market and property was awarded to appellee, Ruthie Jane Robinson.

2. The drive-in restaurant was awarded to the appellant.

3. The family residence was awarded to the appellant. Furthermore, the appellant was required to assume all of the indebtedness on these properties.

It is appellant’s contention that this disposition of property is not just and reasonable as is required by KRS 403.190 and Colley v. Colley, Ky., 460 S.W.2d 821. To substantiate their argument, appellant presents a comparison table of values received by the parties. This table is based upon figures extracted from the record. Using either the figures of the tax commissioner or those of the appellee it appears that the disposition is inequitable.

This court, however, cannot rectify this apparent inequitable distribution since it cannot from the findings of fact and conclusions of law determine if, in fact, this disposition is inequitable. The trial judge, in his findings and conclusions, did not make specific findings as to the values of the property awarded and did not make a determination as to what portion, if any, of the drive-in and market constituted non-marital property. In Qualls v. Qualls, Ky., 384 S.W.2d 326 the Court of Appeals was presented with a similar situation involving the lack of certain necessary findings of fact. In vacating the judgment as to alimony, the court stated:

The Chancellor’s findings of fact did not contain specific findings as to the properties comprising the estate of appellee, their values, his indebtedness, or his income and expenses. These are the essential and indispensable findings upon which a proper conclusion could have been reached as to the amount of alimony allowable. The evidence was in conflict on various points and unsatisfactory on other points. Without such findings, no satisfactory basis is afforded on which to determine the propriety of the alimony allowance.

As in Qualls, this court is without sufficient basis to determine the propriety of the property disposition. The judgment, therefore, is vacated as to the disposition of the residence, the drive-in restaurant and the market as well as its indebtedness, and remanded with the following directions:

1. The trial judge is to make specific findings concerning the values of the market, house and drive-in.

2. The trial judge is to make a determination of what portion, if any, of the drive-in and market is non-marital.

3. The trial judge is to order further testimony from the parties as to the indebtedness of the Apple House Market. This testimony is to be given in front of the judge and not by deposition. After receiving such testimony, the trial judge is to make a specific finding of the value of this indebtedness.

4. If after following the above directions, the trial judge finds an unjust distribution, then he is to adjust his disposition accordingly.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Stephen P. SMITH, Individually and as Designated Executor of the Estate of Floyd O. Neikirk, and Lucille C. Norman, Appellants, v. Fred B. NEIKIRK (also known as Fred Byron Neikirk), Individually and as Executor of the Estate of Floyd O. Neikirk, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.

      Cecil F. Dunn, Lexington, Eugene Watson, Irvine, for appellants.
    Billy L. Wilson, Irvine, for appellees.
    Before WINTERSHEIMER, LESTER and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

The Appellants, Stephen P. Smith, individually and as designated executor of the estate of Floyd O. Neikirk, and Lucille C. Norman, filed a statement of appeal from the order of the Estill County Court admitting the will to probate on June 3, 1972. Floyd 0. Neikirk died August 21, 1971. A paper purported to be his Last Will and Testament, dated July 20, 1971, was admitted to probate in the Estill County Court on January 28,1972. The jury trial of the will contest was concluded and a verdict was rendered on February 26, 1974. The trial court overruled the Appellants’ motion for a new trial on February 19, 1974, and a notice of appeal was filed on February 28, 1974. On October 8, 1976, the Supreme Court of Kentucky transferred this case to the Court of Appeals. This Court affirms the judgment of the trial court.

The will of July 20,1971, was executed by the testator while he was a patient at the Veterans Administration Hospital in Lexington, Kentucky. The will is typewritten and signed by the testator, has no attestation clause, but has the signatures of two witnesses and is notarized by a third party. The Appellees introduced testimony of one of the subscribing witnesses and of the notary public.

The questions presented are:
1. Whether the trial court correctly ruled that as a matter of law the instrument offered for probate was properly executed.
2. Whether the designation of an official capacity, such as a notary, for a person signing a will disqualifies that person as a witness to the will under KRS 394.-040.

KRS 394.040 states: “No will is valid unless it is in writing with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction. If the will is not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two (2) creditable witnesses, who shall subscribe the will with their names in the presence of the testator.”

It is well settled that the burden of proving a will is placed upon those who present it. The record of testimony indicates that witness Runk was within the presence of the testator and the other witnesses at all times. The fact that she may have had her back turned at the moment of execution does not disqualify her as a witness. All that is required to be proved by the subscribing witness is the identification of the signature. Wroblewski v. Yeager, Ky., 361 S.W.2d 108 (1962). It has been repeatedly held that substantial rather that a literal compliance with the statute (KRS 394.040) will suffice. This Court has also indicated that where the technical requirements for execution of wills have been substantially complied with, the will should be probated. Miller’s Exr. v. Shannon, Ky., 299 S.W.2d 103 (1957); Madden v. Cornett, 290 Ky. 268, 160 S.W.2d 607 (1942); Rybolt v. Futrell, 296 Ky. 158, 176 S.W.2d 269 (1943). Testimony presented by Mrs. Bush indicates that she witnessed the testator sign the will, then signed the will as a notary, and returned the will to him. The entire transaction indicates that Mrs. Bush was there to witness the will and to further sign in an official capacity. The fact that she signed as a notary is merely surplusage. As mentioned in the case of Madden v. Cornett, supra, “All that was required of this witness was to sign his name, and the fact that he attached more writing to the instrument than was necessary under the statute does not vitiate his signature

The instrument complained of in this appeal may leave much to be desired from the point of view of legal drafting. However, it appears that from a complete examination of the record that it reflects the intention of the testator. As mentioned above, substantial compliance with the statute is all that is necessary. The proof is sufficient and therefore the will should be probated. The trial court had a valid legal basis for ruling that as a matter of law the instrument offered for probate was properly executed.

The judgment of the trial court is affirmed.

All concur.