author: HUGHES, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Thurman MANNING, Appellee.
    No. 18010.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 16, 1978.

      McBryde, Bogle & Green, and Bill F. Bo-gle, Fort Worth, for appellant.
    Denbow & Wells, and H. G. Wells, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

The Travelers Insurance Company has appealed from a judgment in favor of Thurman Manning in a workmen’s compensation case. Mr. Manning’s judgment is based on a jury verdict of total and permanent incapacity and other supportive findings.

We affirm.

The record before us reflects that Manning was lifting a box of nuts weighing 110-150 pounds while on the job at Strato-flex, Inc. He testified to feeling a real sharp pain across his back and across his hips and immediately telling Van McCaslin, his “lead man”, he had hurt his back. McCaslin admitted Manning had told him about hurting his back but that he did not see him do so. McCaslin said he told him to go see Dr. Risley that day but he put it off until the next day when he requested to be taken to the doctor, and was. (Manning said he went to see Dr. Risley, the company doctor, the same day he was hurt.) Dr. Risley treated Manning with pain pills and a heat pad for a week; X rays and a week of traction in the hospital followed; a mye-logram was performed on him next and then Dr. Clayton Smith operated and removed a disc from the lower part of his back. Only Manning testified to Dr. Smith’s removing the disc. More heat pads and pain prescriptions followed the operation, but Manning said the lower part of his back stayed sore and his legs (numbness) still bothered him. For two weeks at home Manning laid around and took medicine and treatments. Dr. Smith sent Manning back to Stratoflex with a note to put him to work as a test. Stratoflex did not use him. Then Dr. Smith told him there was nothing else he could do for him.

Manning went to Dr. VanZandt, a bone specialist, who put him in a back brace — no help — same sore back and numb leg. EMG was administered on two occasions. Another myelogram followed. Deposition testimony of Dr. VanZandt and Dr. Overton was read into the record. Dr. VanZandt and Dr. Overton operated. Dr. Overton removed a disc or part of a disc and Dr. VanZandt did a fusion in Manning’s back. After some weeks of post operative examination and treatment, Dr. VanZandt told Manning he could get out and do anything he was able to do but not to do anything that required hard manual labor.

Dr. VanZandt opined that Manning's back was disabled 15 to 20 percent; that he could do work involving some lifting, bending and stooping, but not on a continuing basis. He was also of the opinion that, if he did as much as 30 minutes, his back would not hold up. Also Dr. VanZandt said that Manning was precluded from “any manual labor . . . any . . . prolonged manual labor.” He also concluded that the definition of partial incapacity fit Mr. Manning’s situation.

Dr. Overton, in his deposition, testified to his operating and removing a disc or a part of a disc from Manning’s back and finding adhesions and scars in Manning’s back where he had previous surgery and “residual disc material ... at that level.” Also, his opinion was that Manning would not be able to engage in the usual activities required of a manual laborer in the future and that further surgery could not help his condition.

He did state that Manning could get and keep employment suitable to his condition which required some, but not all, of the usual tasks of a workman.

Points of error nos. 1 through 10 are to the effect that there was no evidence, insufficient evidence and that the jury’s answer was against the overwhelming weight and preponderance of the evidence to support the jury’s answer to special issue no. 3 that Manning’s injury was a producing cause of any total incapacity and to the jury’s answer to special issue no. 1 that Manning received an injury as defined in the court’s charge or that in special issue no. 2 he received such injury in the course and scope of his employment.

All the above objections are to the effect that the trial court erred for such reasons in failing to grant judgment non obstante ve-redicto for Travelers or to grant it a motion for new trial.

We overrule points of error nos. 1 through 10, having concluded that there was sufficient evidence for the jury to have found that Manning was injured in the course and scope of his employment and that such injury was the producing cause of his incapacity. Manning’s testimony of the sudden back pain when lifting the box of nuts and of his first operation, plus the testimony of a continuous sequence of treatments, medications prescribed, pain, inability to do prolonged work resulting in another back operation on which there was expert medical testimony of finding “residuals” of a former disc operation, plus the other testimony herein recounted make the circumstances conclusive enough to warrant the jury verdict in this case. Texas Employers’ Insurance Ass’n v. Hamilton, 430 S.W.2d 285 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.).

From the evidence in the record we find some evidence of probative force to sustain the jury’s finding of total and permanent disability. The deposition testimony of Dr. Overton and Dr. VanZandt that Manning’s condition was permanent and that his back would not hold up to more than 30 minutes’ continual lifting justified the jury’s finding of total incapacity. In the light of Dr. VanZandt’s statement that Manning’s 15 to 20 percent permanent disability “would preclude any manual labor . . . any job that required any prolonged manual labor,” we hold that the jury had sufficient facts to find permanent incapacity. We overrule points of error nos. 18, 19 and 20.

We overrule points of error nos. 11 through 15 concerning the jury’s answer to special issue 3-A which directed the jury to “[fjind the beginning date of total incapacity. (By stating month, day and year.)” The jury’s answer was “Mar. 26, or 27, 1974”. Travelers avers that the answer was not responsive to the question in its incorrect form, not determinative of any issue in the case and resulted in an incomplete verdict.

We do not agree. The jury’s answer was in conformity with the testimony of McCaslin that Manning claimed injury on March 26,1974 and was taken to the doctor on the next day and the testimony of Manning that he was injured on March 26, 1974 and was taken to the doctor on the same day. Considering the testimony in its totality, we hold the answer of the jury to be sufficient, particularly in light of a total and permanent disability finding. We also hold the evidence to be sufficient to support the jury’s answer and that it is not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust and wrong. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We overrule points of error nos. 16 and 17 and Travelers’ contention that trial court erred in not admitting evidence of social security benefits being in excess of his earnings to show reasons for not returning to work, and Manning’s living expenses and purchases of assets to impeach his claim that he had not been gainfully employed and was totally incapacitated.

We hold that trial court was within his discretion in refusing to admit such testimony, (even though limited in purpose), in view of the Collateral Source Rule. Twin City Fire Insurance Company v. Gibson, 488 S.W.2d 565 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.).

We do not hold Travelers’ appeal to be frivolous.

Affirmed.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    BRAZOS GRAPHICS, INC., et al., Appellants, v. ARVIN INDUSTRIES, INC., Appellee.
    No. 5920.
    Court of Civil Appeals of Texas, Waco.
    Nov. 22, 1978.
    Rehearing Denied Dec. 7, 1978.

      Steven E. Halpin, Hanson, Most, Lerner & Halpin, Ron I. Tashnek, Houston, for appellants.
    Osborne J. Dykes, III, Fulbright & Ja-worski, Houston, Bill Payne, Lawrence, Thornton, Payne & Watson, Bryan, for ap-pellee.
   OPINION

JAMES, Justice.

This is a products liability case. Plaintiff-Appellant Brazos Graphics, Inc. brought this suit against Defendant-Appel-lee Arvin Industries, Inc., in which suit Pleas of Intervention were filed by four insurance companies who had paid fire losses under their respective policies.

On January 19, 1976, Plaintiff-Appellant’s place of business in Bryan, Texas, was substantially damaged by a fire. Plaintiff-Appellant and Intervenors claimed that a small electric heater manufactured by Arvin was defectively designed and caused the fire.

Trial was had before a jury, and in response to special issues the jury found (or failed to find) as follows:

(1) Failed to find that Arvin’s failure to equip the heater with a heat shield around the line cord inside the case rendered the heater defective.

(2) No answer (and none necessary) to the issue inquiring if such defect was a producing cause of the fire in question.

(3) Failed to find that Arvin’s failure to clamp the electric cord in such a manner as to avoid crimping or pinching the insulation rendered the heater defective in design.

(4) No answer (and none necessary) to the issue inquiring if such defect was a producing cause of the fire in question.

Special Issues 5, 6, 7, and 8 were all damage issues. No answers were made to these issues, and none were necessary.

Based upon the jury verdict the trial court entered judgment that Plaintiff Brazos Graphics, Inc. and Intervenors take nothing against Defendant Arvin Industries, Inc., from which Plaintiff and Inter-venors appeal. We affirm.

Appellants assert five points of error, points one through four complaining of the trial court’s admitting into evidence Defendant’s Exhibit No. 8 as a business record, while the fifth and final point complains of the trial court’s sustaining of Ap-pellee’s objection to Appellants’ jury argument. We overrule all of Appellants’ points and contentions and affirm the trial court’s judgment.

Appellants contend the trial court erred in admitting into evidence Defendant’s Exhibit 8 as a business record for the asserted reasons that (1) said exhibit is not a memorandum or record of an act, event, or condition but rather is a summary and hearsay; (2) there is no evidence and insufficient evidence that the person who made such exhibit or transmitted information to be included therein had personal knowledge of the act, event or condition to be included therein; (3) there is no evidence and insufficient evidence of the proponent’s qualifications as a foundation to the introduction of opinion testimony; and (4) Appellants were denied an opportunity to cross-examine and challenge opinion testimony stated within the exhibit.

Appellants tried this case on a design defect theory. Appellants’ experts testified that the Arvin Model 29H10 heater in question was defectively designed because the line cord insulation was exposed to radiant heat, which they say in their opinion caused insulation breakdown and electrical malfunction. Appellants’ experts recommended a heat shielding device to remedy this asserted defect in design. Appellants’ experts gave this opinion testimony without reference to the actual temperatures existing in the 29H10 heater during operation or the rated capacity of the line cord insulation used.

To counter this opinion evidence, Appel-lee offered Defendant’s Exhibit No. 8, same consisting of 22 pages of the Business Records of Underwriters Laboratories, Inc., Columbus, Indiana, an independent testing laboratory. Said exhibit showed the actual temperatures existing at specific locations in the heater during operation. According to recitations in said exhibit, U.L.’s engineers obtained these temperature figures by actually taking readings from a sample heater having the same design as the heater in question. The readings showed that the heaters’ design exposed the line cord insulation to a temperature of 100° Fahrenheit, about 1.4 degrees above normal body temperature, during operation. The rated capacity of the line cord insulation was shown to be 194° Fahrenheit; therefore, the temperature readings shown in the exhibit served as a basis for Appellee’s expert testimony to the effect that the insulation temperatures were well within acceptable and safe limits. In this way was Defendant’s Exhibit 8 used to answer and rebut Appellants’ contention that the heater in question was defectively designed.

As stated, Defendant’s Exhibit No. 8 primarily consisted of the United Laboratories, Inc., records of test results. It was filed by Appellee with the Court with over fourteen days’ notice to Appellants’ counsel as a business record under Article 3737e, Vernon’s Texas Civil Statutes. The records were attached to an affidavit by a custodian thereof, under the provisions of Section 5 of said statute, said affidavit being in the form recommended by and set out in Section 7 of Article 3737e.

It is significant that when Appellee offered Defendant’s Exhibit 8 into evidence, Appellants objected generally to the exhibit as a whole upon two grounds, to wit, that it was hearsay and irrelevant. Only the hearsay objection has been carried forward on this appeal. Therefore we have the situation where the Appellants did not level objections to specific portions of the exhibit, but instead made a general objection to the exhibit as a whole on the ground that it is hearsay. Now, on appeal by way of their points of error, Appellants make complaints against specific portions of the exhibit as being inadmissible. Our examination of the exhibit reveals that most of same is admissible since it has been qualified as an exception to the hearsay rule under Article 3737e, commonly called the Business Records Act. Moreover, the exhibit is largely factual in nature. On the other hand, there are portions of the exhibit that would have been properly excluded, had Appellants timely pointed them out to the trial court with specific objections. For example, there are references in the exhibit to previous tests which had been made of this particular model heater by U.L., with no showing of what the previous tests consisted of, or by whom conducted. A matter such as this, as well as others contained in the exhibit, would no doubt have been excluded by the trial court in the face of a specific objection at the time the exhibit was offered in evidence. But no specific objections were made to any portions of the exhibit.

It has been held that an objection should not be general, but specific. It must be such as to be understood by the court, and such that it can be obviated by the opposing party, if possible, by other evidence; that a general objection to admission of evidence is insufficient as a basis for appellate review. Dabney v. Keene (El Paso CA 1946) 195 S.W.2d 682, 684, NRE; Loumparoff v. Housing Authority of City of Dallas (Dallas CA 1953) 261 S.W.2d 224, 228, no writ. Also see Herrin Transportation Co. v. Pursley (Beaumont CA 1968) 424 S.W.2d 660, 664, NRE.

In the case at bar, we hold that in view of Appellants having failed to make timely objections to specific portions of the exhibit, that Appellants have waived their objections to such specific portions.

Our Supreme Court, in Brown and Root, Inc. v. Haddad (1944) 142 Tex. 624, 180 S.W.2d 339 at page 341, has laid down the rule which we believe governs the case at bar in this language:

“A general objection to evidence as a whole, whether it be oral or documentary, which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible, (citations)”

The above-quoted rule announced in Had-dad has been applied to evidence admitted under Article 3737e (business records) in Eubanks v. Winn (Houston 14th CA 1971) 469 S.W.2d 292, NRE, and in Argonaut Southwest Insurance Co. v. Morris (Austin CA 1967) 420 S.W.2d 760, 776, NRE. For other applications of the Haddad rule, see City of Houston v. Wisnoski (Houston 14th CA 1970) 460 S.W.2d 488, 491, NRE; Schriewer v. Liedtke (Beaumont CA 1978) 561 S.W.2d 584, 588, writ dismissed.

In Eubanks v. Winn, supra, at page 296, the Court said:

“In the instant case it was incumbent upon appellants to isolate any portions of the records which were inadmissible or prejudicial and specifically and validly object to such portions of the records. This they did not properly do, and they have waived any correct objections which they may have had to the records.”

In the case at bar, we are of the opinion that the exhibit in question fell within the purview of Article 3737e, V.T. C.S., and was generally admissible. By Appellants’ failure to make specific objections to the portions deemed inadmissible by them, Appellants have waived their objections to same, and the trial court was not in error in overruling Appellants’ objection to the exhibit as a whole. Appellants’ points one through four, inclusive, are accordingly overruled.

Finally, Appellants complain that the trial court improperly sustained an objection to Appellants’ counsel’s argument to the jury. The substance of Appellants’ argument objected to was that Appellee Arvin had failed to call Underwriters Laboratories, Inc. as a witness. Here is the argument in question by counsel for Appellants:

“They also came in here and said something to the effect that Underwriters Labs, tested this thing. They did. They tested it for about a minute. But if you look very carefully at their report, you’ll find that’s not even a sworn statement. I didn’t see anybody from Underwriters Labs, sit in this chair and get subjected to cross examination by us. You saw what happened to Mr. Standley on cross examination. I ask you why they didn’t bring Underwriter Labs, down here personally. Underwriter Labs, would have been favorable to them. Instead of bringing their representative down

Counsel for Defendant-Appellee: “Your Honor, I’m going to object to that line of argument. A witness which is available to one party as well as to the other is not proper subject for closing argument.”

The Court: “I sustain the objection. But what you’ve said, go ahead. I’m not going to instruct them. A witness is accessible to both parties.” (emphasis supplied).

Although the trial court sustained Appel-lee’s objection to the argument, it (the court) allowed Appellants’ counsel’s argument to stand. Appellants’ lawyer got his point across to the jury.

Be that as it may, such argument by Appellants’ attorney was improper for this reason: The testimony shows that United Laboratories, Inc. is a non-profit and non-biased corporation whose board of directors is “composed of representatives from the public, from industry, from consumers, from educational institutions and a few senior members of Underwriters Laboratories, Inc.” There is no evidence tending to show any bias on U.L.’s part toward or in favor of Appellee Arvin, or special relationship between the two, or any control by Arvin over U.L. In other words, the relationship between Arvin and U.L. was in reality an arm’s length relationship. Evidence showed that the usual procedure is that U.L. initially tests a representative sample of a particular manufactured product, and then an agent of U.L. reappears at unannounced times to re-test representative units selected at random from the assembly line four times a year.

Our Supreme Court in Tex-Jersey Oil Corp. v. Beck (1957) 157 Tex. 541, 305 S.W.2d 162, stated the general rule that counsel may comment in argument on the failure of the opposite party to call a witness employed by him, and then held: “The right to comment on the failure to call and use an employee-witness does not grow out of the unavailability of the witness but out of his relationship with the opposite party.” That is to say, if the witness has some relationship to the opposing party, as to cause that witness to tend to favor the opposing party, or to place the opposing party in a better position to obtain material information from that witness, then comment on failure of the opposing party to produce that witness is proper; otherwise, the general rule applies, to wit, that comment on the failure to produce a witness in a civil action is improper if the witness is equally available to both parties. See Sanders v. St. Paul Fire and Marine Ins. Co. (Texarkana CA 1968) 429 S.W.2d 516, NRE, for the discussion of this problem at page 522.

In the case at bar, there was no showing of any such special relationship between Appellee Arvin and U.L.; in fact, the evidence affirmatively showed their relationship to be one of arm’s length status. This being so, Appellants’ counsel’s argument on Appellee’s failure to call United Laboratories, Inc. as a witness was improper, and the trial court properly sustained the objection to such argument. Appellants’ fifth and final point of error is overruled.

Judgment of the trial court is affirmed.

AFFIRMED.


author: SHANNON, Justice.

text:
    STATE BOARD OF DENTAL EXAMINERS, Appellant, v. Joe Robert NEELEY, Appellee.
    No. 12649.
    Court of Civil Appeals of Texas, Austin.
    Nov. 22, 1978.
    Rehearing Denied Dec. 13, 1978.

      John L. Hill, Atty. Gen., Harry C. Green, Asst. Atty. Gen., Austin, for appellant.
    Phil Mockford, Austin, for appellee.
   SHANNON, Justice.

This is an appeal from a judgment of the district court of Travis County that set aside an order of the State Board of Dental Examiners. The Board found Joe Robert Neeley guilty of unprofessional conduct as a result of permitting an . . unlicensed person to perform dental services . ” upon another person in his dental office. Tex.Rev.Civ.Stat.Ann. art. 4548g(c) (1976). The Board’s order suspended Nee-ley’s dental license for two years; however, the suspension was “. . . PROBATED for all but the first 45 days thereof.” We will affirm the judgment of the district court.

A threshold question involves the applicability of the Administrative Procedure and Texas Register Act, Tex.Rev.Civ. Stat.Ann. art. 6252-13a (1975). That Act took effect on January 1, 1976. The Board entered its order on November 22, 1975. Neeley filed suit in district court to set aside the Board’s order on December 22, 1975. The judgment of the district court was signed on February 28, 1977.

The applicability of the Administrative Procedure Act to cases such as this was determined by Merchants Fast Motor Lines, Inc. v. Railroad Commission, 22 Tex.Sup. 54, 573 S.W.2d 502, October 25, 1978. The Supreme Court concluded in that case that the Administrative Procedure and Texas Register Act “. . . was intended to apply only to administrative orders promulgated after January 1, 1976.” The Act is not applicable to the case at bar.

Article 4548g provides that it is unlawful to engage in “unprofessional conduct” in the practice of dentistry. “Unprofessional conduct” includes, among other things, “(c) Employing directly or indirectly or permitting any unlicensed person to perform dental services upon any person in any room or office under his or her control.”

Neeley permitted Janice Wagner, his dental hygienist, to administer nitrous oxide, sometimes called laughing gas, to patients before she cleaned their teeth. The Board concluded that Neeley’s conduct in allowing the hygienist to administer nitrous oxide violated art. 4548g(c).

In defense of the district court’s judgment setting aside the Board’s order, Nee-ley argues that he did not violate art. 4548g(c). Neeley contends, among other things, that the administration of nitrous oxide by the dental hygienist, under the circumstances of this case, did not constitute the practice of dentistry.

The statutes, upon which Neeley’s suspension is based, are penal in nature and should be strictly construed. See Texas State Board of Medical Exam. v. McClellan, 307 S.W.2d 317 (Tex.Civ.App.1957, writ ref’d n. r. e.).

“Practicing dentistry” is defined in Tex.Rev.Civ.Stat.Ann. art. 4551a (1976). The Board contends that the hygienist’s acts were included within art. 4551a(2) which provides that any person “. who shall undertake or offer to . treat pain ... of the human teeth, oral cavity, alveolar process, gums, or jaws” is practicing dentistry. (Emphasis added) All of the evidence was that Neeley’s hygienist administered nitrous oxide not to treat pain, but instead solely to relax the patient before having his teeth cleaned. The nitrous oxide relieved the patient’s anxiety, thereby making the hygienist’s task easier and the cleaning experience more pleasant for the patient. There was no evidence that the hygienist undertook to treat pain of the human teeth, oral cavities, alveolar process, gums, or jaws. The hygienist, by definition, did not practice dentistry when she administered nitrous oxide.

After the transactions which were made the basis of the Board’s complaint against Neeley, the Board amended its rules to provide that nitrous oxide for conscious sedation shall be induced and administered only by a dentist. The Board’s after-the-fact rule, of course, does not govern the case at bar.

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    MINEOLA STATE BANK et al., Appellants, v. The FIRST NATIONAL BANK OF MINEOLA, Appellee.
    No. 12840.
    Court of Civil Appeals of Texas, Austin.
    Nov. 22, 1978.
    Rehearing Denied Dec. 13, 1978.
    John L. Hill, Atty. Gen., Thomas A. Rutledge, Asst. Atty. Gen., Austin, for State Banking Board of Texas.
    Larry E. Temple, Austin, for Mineóla State Bank.
    Joe R. Long, Gary Evatt, Long, Evatt & Webber, Austin, for appellee.
   PHILLIPS, Chief Justice.

Pursuant to a hearing, the State Banking Board concluded that the application for charter of the Mineóla State Bank met all the requirements of law and approved the application.

Thereafter, appellee appealed to the district court contesting the validity of the Board’s order. Following trial, the court below entered judgment reversing the order of the Board and remanding the case with instructions to deny the charter application of appellants.

We reverse the judgment of the trial court and render judgment reinstating the order of the Banking Board.

I.

Under the provisions of Tex.Rev.Civ.Stat. Ann. art. 342-305 (1973), the Banking Board must make affirmative findings on the following statutory provisions before approving a new state bank charter: (1) a public necessity exists for the proposed bank; (2) the proposed capital structure is adequate; (3) the volume of business in the community where such proposed bank is to be established is such as to indicate a profitable operation of the proposed bank; (4) the proposed officers and directors have sufficient banking experience, ability, and standing to render success of the proposed bank probable; and (5) the applicants are acting in good faith.

The Banking Board found all of these elements in appellants’ favor and so stated in its order. The primary question before us is whether the Banking Board’s affirmative findings on the ultimate issues of public necessity and the existence of a sufficient volume of business for profitable operation, in addition to the findings of underlying fact pertinent thereto, are supported by substantial evidence. Appellants, by appropriate points of error, have raised these questions for our consideration and we sustain their position.

The Supreme Court of Texas has defined public necessity within the meaning of article 342-305, as being a substantial or obvious community need for the proposed bank in the light of attendant circumstances, as distinguished from a mere convenience on the one hand, or an absolute or indispensable need on the other. Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966).

This appeal of the Board’s record is to be judged by the substantial evidence standard of review which provides, in one acceptable definition, that the administrative decision is to be upheld if reasonable minds could have reached the same conclusion reached by the administrative agency from the evidence in the record. First National Bank, Grapevine v. State Banking Board, 419 S.W.2d 878 (Tex.Civ.App.1967, writ ref’d n. r. e.).

Bearing in mind the admonition of Tex. Rev.Civ.Stat.Ann. art. 6252-13a, § 16(b) (1978) (Administrative Procedure Act), that a final decision of an administrative agency must include findings of fact and conclusions of law, separately stated, and that findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings, we turn to the Commissioner’s order. We believe, despite findings by the trial judge and appel-lee’s contentions, that the order was in compliance with the requirements of section 16(b). See our opinion in Mutual Building and Loan Association v. Lewis, 572 S.W.2d 771 (Tex.Civ.App.1978).

After stating the ultimate findings in the statutory language required by article 342-305, the Board made extensive findings of the required underlying facts. A summary of these findings follows. There are 223 separate subscribers to the stock of appellants and eighty percent of these stockholders reside within the community to be served by it. This, according to the testimony of appellants’ expert witness, Dr. James R. Vinson, shows widespread support from persons who are willing not only to support the bank by spoken word but also to invest their money in the future of that bank and its ultimate success. Dr. Vinson expressed the opinion that the community to be served would consist, primarily, of the southwest part of Wood County but would also include parts of Rains, Van Zandt, and Smith Counties inasmuch as the city of Mineóla is not far from the county line.

With respect to economic and demographic information pertaining to Wood County, Dr. Vinson stated that Mineóla, as well as Wood County as a whole, has a diversified economic base as evidenced by the various industry categories. Dr. Vinson did not furnish this information in detail with respect to Rains, Van Zandt, and Smith Counties, but expressed the opinion that each of these counties presented an economic and demographic picture similar to that of Wood County.

Overall total earnings increased in Wood County from $29,536,000 in 1970 to $42,646,-000 in 1974. Farm earnings continue to be a significant portion of the overall earnings of Wood County; however, in addition, there is manufacturing and mining, including oil and petroleum products, as well as lignite with concentrations both near the surface and deep below the surface. Also, there are transportation, communication, and public utilities which form significant industrial blocks for the county. The Missouri-Pacific Railroad has its headquarters as well as a large maintenance center in Mineóla. There are also finance, insurance, and real estate services located within the area to be served.

The order proceeds with underlying facts demonstrating growth in Wood County population, employment, total farm market-ings, crude oil production (mainly reflected by monetary growth rather than production), income, and city sales taxes. Substantial growth in the assets of Mineóla Federal Savings and Loan Association, as well as substantial increases in the deposits of appellee First National Bank of Mineóla, were described.

The Board stated in its order the fact that the First National Bank of Mineóla is the only bank located in the community to be served and noted that the lack of a local banking competitive alternative to appellee First National Bank was an important factor in its determination to approve appellants’ charter. It concluded that, from the overall record, there is both a potential volume of deposit business and a potential volume of loan business to indicate profitable operation of the bank sought by appellants.

Appellants’ application 'for the new bank was vigorously contested, and although there is an abundance of evidence of a substantial nature which would have reasonably supported an order denying applicants’ charter, there is, as well, evidence to reasonably support the order entered. It is in such situations that the expertise of the Board is employed with conclusive effect. We also recognize the recent statement of the Supreme Court in Lewis v. Metropolitan Savings and Loan Association, 550 S.W.2d 11, 13 (Tex.1977), that: “In practical result, it has not taken much evidence under our decisions to qualify as substantial. In fact, the evidence may be substantial and yet greatly preponderate the other way.” We need not address appellants’ point relative to the inadequacy of Dr. Vinson’s survey inasmuch as we find substantial evidence upholding the order separate and apart from the survey.

II.

As most of the evidence introduced by appellants in support of their charter was presented through Dr. Vinson, we must notice appellee’s point complaining that Dr. Vinson’s opinions with reference to the factual evidence introduced are not credible because of some suggested inconsistent testimony given by him in a prior case relative to another geographic area. The Board found Dr. Vinson’s analysis of the economy of the area to be served to be credible, reliable, and supported by the overall record, and so stated in its order. Counsel for appellee was given the full latitude of cross examination to test this expert’s methodology and credibility. Dr. Vinson stated the reasons why, in his opinion, the two areas (several hundred miles apart) were different, and obviously explained these differences to the Board’s satisfaction. Appel-lee’s own expert witness testified on cross examination that he could neither agree nor disagree with Dr. Vinson’s conclusion in the earlier case, because the data introduced in the current record did not provide a complete picture of the previous case. It is within the province of the Board to determine from the overall record the credibility of the witnesses before it and the weight to ascribe to their testimony.

The judgment of the trial court is reversed and judgment is here rendered reinstating the order of the Banking Board.

      . There seems to be no dispute as to the requirements of 2, 4, and 5 of article 342-305.

      . See this Court’s opinion in State Banking Bd. v. Airline Nat’l Bank, 398 S.W.2d 805 (Tex.Civ.App.1966, writ ref’d n. r. e.).


author: KEITH, Justice.

text:
    KOLLMAN STONE INDUSTRIES, INC., et al., Appellants, v. James R. KELLER, Appellee.
    No. 8154.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 30, 1978.
    Thomas H. Crofts, San Antonio, for appellants.
    James A. Rindfuss, San Antonio, for ap-pellee.
   KEITH, Justice.

This appeal presents another instance wherein a trial judge, while attempting to correct an erroneous act on his part, has run afoul of the strict and unyielding rules governing the finality of judgments. Our further statement will serve to support our action in reversing and rendering the judgment from which the appeal has been perfected, thereby reinstating the first judgment signed in the cause.

Statement of Facts

The appeal is by two of three defendants below from an adverse judgment rendered in a suit seeking a recovery on two promissory notes. Defendants filed their counterclaim seeking damages for fraud, usury and breach of contract, and the cause was tried to a jury. Both sides submitted motions for judgment and, on February 17, 1977, the trial judge signed that presented by the defendants which denied any recovery by any party against another.

The judgment was signed without notice to or knowledge of counsel and no notice of its entry in the minutes was furnished by the clerk. See Rule 306d and Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 244-245 (Tex.1974).

No motion for new trial was filed within the thirty-day period following the signing of the judgment. Rule 329b, § 5. In fact, the parties learned of the existence of such judgment on March 22, 1977, when counsel appeared before the court to argue their respective motions for judgment in the cause. When counsel for one of the parties secured the original papers from the clerk, the judgment was found among such papers.

After careful study of the judgment which had been signed and entered in the minutes, the trial judge found that in one instance the middle initial of cross-defendant (plaintiff) had been incorrectly stated. Thereupon, in order to obviate the filing of a bill of review, the court invited counsel for the plaintiff to file a motion to correct the clerical error so that a judgment nunc pro tunc could be entered restoring plaintiff’s rights to perfect an appeal from the take-nothing judgment.

Plaintiff filed such motion and on May 12 a new judgment was signed which was identical to that of February 17 except that the middle initial of cross-defendant was changed. This order recited that it was entered because the original judgment was the result of “an inadvertent clerical error.”

Plaintiff, with respect to this new judgment, timely filed a motion for new trial and such was amended within the time allowed by Rule 329b. Plaintiff also had pending at such time a motion to enter judgment in his behalf.

With this confused procedural tangle confronting the court, the trial judge added to the confusion on July 7 when he signed an order setting aside the judgment dated May 12 and ordering plaintiff to submit a judgment whereby he would recover a judgment against defendants. This order of July 7 is set out in the margin.

On August 24, an entirely new judgment was signed which recited that it was based upon the jury’s findings “and upon the basis of uncontroverted evidence” that plaintiff recover $14,935.57 on two promissory notes together with ten percent interest thereon together with $2,500.00 attorney’s fees to bear interest at the rate of nine percent per annum, and denied cross-plaintiffs any relief on their cross-action. Defendants have appealed from an order which overruled their motion for new trial complaining of the entry of the August 24 judgment.

So as to bring our dates into proper focus, we chart the important dates in this sequence:

January 5 Verdict returned and received.

February 17 Original judgment signed.

March 22 “Discovery” of entry of original judgment.

May 12 Signing of “nunc pro tunc” judgment.

June 6 Plaintiff’s amended motion for new trial filed.

July 7 Order setting aside May 12 judgment.

August 24 Judgment signed awarding plaintiff a recovery against defend-

Having no statement of facts, we do not express any opinion upon the merits, or lack thereof, of the claims of any of the parties. Our task is solely one of determining whether or not a final judgment was ever entered and, if so, when.

Opinion

Both parties, although for different reasons, contend that the May 12 judgment nunc pro tunc was a void judgment. We agree for the reasons now to be stated.

We turn first to a consideration of our jurisdiction to hear and determine the merits of the appeal. As the parties have noted in the briefs, ordinarily the contention we now face is addressed to the Supreme Court in a mandamus action. See the discussion and authorities cited in Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973). See also the cases cited in Justice Daniel’s dissenting opinion in Plains Growers, Inc. v. Jordan, 519 S.W.2d 633, 642 (Tex.1974).

No one contends that the Supreme Court does not have jurisdiction to entertain a mandamus action if any of the judgments are void. Buttery v. Betts, 422 S.W.2d 149, 151 (Tex.1967); but, relief may be sought in the courts of civil appeals by means of a direct appeal from the judgment. See Dikeman v. Snell, supra, where the Court said:

“[I]n some instances, relief from alleged invalid orders or judgments might be more easily obtained by appealing to the Court of Civil Appeals under Rule 306b. This would be the safer course, particularly where there is doubt as to whether the judgment is void, or where there are disputed issues of fact.” (490 S.W.2d at 186)

See also State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, 274 (1939).

Whether the subsequent judgments are found to be void or voidable, this court has jurisdiction to consider the challenge thereto in a direct appeal. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961). We turn now to a consideration of the procedural problem before us.

Regardless of the reasons which may be assigned by the trial judge, the written judgment which he signed on February 17 was a judgment which disposed of all of the issues and the rights of the parties in the lawsuit. The clerk properly recorded it in the minutes of the court in Volume 242A at pages 840 and 841 of the minutes of the 131st District Court. It was a formal and solemn judgment of a court of record. Even though the trial judge may have mistakenly signed the February judgment, it was “nevertheless a judicial act that is not subject to correction by nunc pro tunc order after expiration of the thirty-day period specified in Rule 329b.” Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28, 30 (Tex.1971). See also Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968). Or, as stated in Love v. State Bank and Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819, 821 (1936), cited in Finlay, supra:

“The court unquestionably rendered the judgment which the judge signed and which was entered on the minutes, or else there was no judgment rendered at all, as it would have been a useless thing to enter an order reciting that the case was not dismissed for want of prosecution.”

Justice Reavley is the coauthor of an excellent article entitled “Trial Court’s Power to Amend Its Judgments,” and emphasizes the importance of inclusion of the judgment in the minutes:

“The official record of the court is its minutes. Statutes require the clerk to enter judgments of the court, under direction of the judge, in that record. It is not the written draft of judgment signed by the judge and found among the papers of the cause which constitutes the official record of the court’s judgment; it is the writing contained in the official minutes kept pursuant to [the] statutes.” (at 192)

The Court in Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561, 566 (1937), held:

“Judgments and orders of courts of record to be effectual must be entered of record. Neither entries in the judge’s docket nor affidavits can be accepted as substitute for such record; and docket entries, affidavits, and other like evidence can neither change nor enlarge judgments or orders so entered in the minutes of the court.”

This rule was followed in the recent case of N-S-W Corporation v. Snell, 561 S.W.2d 798, 799 (Tex.1977), wherein the Court said: “A docket entry may supply facts in certain situations . . but it cannot be used to contradict or prevail over a final judicial order.” (citations omitted)

The written judgment which the clerk entered in the minutes of the court on February 17 was a written memorandum filed with the clerk and was the sentence of the law pronounced by him in the cause. See authorities cited by Chief Justice Calvert in Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 58-59 (Tex.1970). Consequently, the February judgment was a valid judgment until and unless set aside in accordance with the rules governing such proceedings. Cf. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 291 (1953).

Moreover, it is appropriate to note that it is well established that the “trial court may not make an order that simply affirms a former judgment and thereby enlarge the period for perfecting an appeal.” Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973). Yet, that was the single avowed and stated purpose of the order of May 12 when the nunc pro tunc judgment was signed.

The trial judge had no authority to sign the nunc pro tunc judgment in May setting aside the final judgment entered in February. The only effective remedy available to plaintiff when he learned of the entry of the February judgment was by way of a bill of review. Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974), by following the procedures outlined in Petro-Chemical Transport, Inc. v. Carroll, supra (514 S.W.2d 240).

No motion for new trial having been filed after the signing of the February judgment, the decisions of our Supreme Court in Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex.1978), and Transamerican Leasing Co. v. Three Bears, Inc., 567 S.W.2d 799 (Tex.1978), are inapplicable.

Instead, all orders of the trial court subsequent to the signing of the first judgment in February are nullities and void. The provisions of Rule 306b did not revive the trial court's jurisdiction on May 12, 1977, so as to enable it to alter judicially the substantive provisions of the earlier February judgment.

The judgment entered on August 24, 1977, from which this appeal has been perfected is reversed and judgment now rendered setting aside said judgment as being wholly void. The effect of our judgment is to reinstate the judgment of February 17, 1977, which denied any recovery to any party to the litigation.

REVERSED and RENDERED.

      . All references to rules are to the Texas Rules of Civil Procedure.

      . In Williams v. State, 461 S.W.2d 614, 618 (Tex.Cr.App.1970), the Court said: “[I]t is well established that an error in a person’s middle name is immaterial, a middle name being unknown at common law.” See also Martin v. State, 541 S.W.2d 605, 606 (Tex.Cr.App.1976).
      However, it has been held that the entry of a nunc pro t.unc judgment is a proper method of correcting an error in the initials of the defendant. See Rogers v. Allen, 80 S.W.2d 1085 (Tex. Civ.App. — Eastland 1935, no writ), followed in Goodyear Tire & Rubber Co. v. Pearcy, 80 S.W.2d 1096, 1097 (Tex.Civ.App. — Eastland 1935, no writ), both involving interlineation of changes in the judgment of a justice of the peace court. Rogers is cited by Justice Reavley in the article “Trial Court’s Power to Amend Its Judgments,” 25 Baylor L.Rev. 191, 196, fn. 29 (1973).

      .“On this the 7 day of July, 1977, the Court determined that the Judgment heretofore entered on May 12, 1977, adjudging that Plaintiff take nothing from Defendants, be set aside, and that Judgment be entered in favor of Plaintiff against Defendants for the amount due and owing under the promissory notes, such determination having been based upon further review and study of the post trial motions and briefs filed by the parties.
      “It is accordingly ORDERED, ADJUDGED, AND DECREED that the Judgment heretofore signed on the 12th day of May, 1977 whereby Plaintiff, James R. Keller, takes nothing from Defendants, Kollman Stone Industries, Inc., Jerry D. Kollman and Claude H. Stone, is hereby set aside and held for naught, and that Judgment for Plaintiff shall be entered against Defendants by the Court after such is submitted to the Court approved as to form by counsel for the parties.”

      . We call to the attention of the bench and the bar this statement found in Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex.1978):
      “It is the trial judge’s ultimate responsibility to read every judgment and order, however long and however many, and to correct every judgment and order that ignores Rule 306a.”
      Such ultimate duty also includes careful attention to all of the other facets of the judgment making process.

      . T. Reavley and D. Orr, 25 Baylor L.Rev. 191 (1973).


text:
    Jimmy Leroy LUNA, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Sept. 19, 1978.
    Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for respondent.
   OPINION AND ORDER

The Court, having considered the briefs of movant and respondent and having heard oral argument in this matter, is of the opinion that discretionary review was improvidently granted. See Wylie v. Commonwealth, Ky., 556 S.W.2d 1, at page 3.

The order granting discretionary review is vacated, and the case, Ky.App., 571 S.W.2d 88, is remanded to the Court of Appeals for the issuance of its mandate.

All concur.


author: REED, Justice. PALMORE, Chief Justice, LUKOWSKY, Justice,

text:
    TRANSPORT MOTOR EXPRESS, INC., Michigan Mutual Insurance Company and/or Michigan Mutual Liability Company, Movants, v. William F. FINN, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Sept. 19, 1978.

      Larry L. Johnson, William P. Swain, Thomas H. Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for movants.
    Buel L. Cox, Robb L. Smith, Kenneth E. Hollis, Frankfort, Gemme M. Harding, Cyril E. Shadowen, Dept, of Labor, Louisville, Robert F. Stephens, Atty. Gen., Frankfort, for respondents.
   REED, Justice.

In this workmen’s compensation case, the Court of Appeals elected to set forth a comprehensive, all-inclusive formula for computing the amount due a disabled worker in all compensable situations. The opinion is reported sub nom. Transport Motor Exp., Inc. v. Finn, Ky.App., 568 S.W.2d 509 (1977). Because of the broad sweep of the decisions announced affecting not only the case considered but other cases with different facts and subject to different statutes, we granted discretionary review. The facts of the case decided are simple and undisputed. The applicable law is complex and contradictory. The majority opinion of the Court of Appeals makes a commendable effort to create order out of confusion, but we are unable to agree with its basic premises and thus with the result derived. Therefore, we reverse for the reasons later stated in this opinion.

In this case, the Workmen’s Compensation Board found Finn, the employee, to be totally and permanently disabled. It apportioned responsibility for his resultant total disability; 25% due to the injury of October 1974 which gave rise to the filing of the claim; 25% due to the arousal of a dormant condition triggered by the later injury into disabling reality; 50% due to a prior active disability. Finn’s average weekly wage at the time of the injury was $261.60. He had no dependants. The maximum weekly benefits payable as determined under KRS 342.740 was $84.00.

The employer and the Special Fund argue that the award was improperly computed. The Special Fund concentrated its fire during oral argument on the assertion that there had been a failure to give effect to the language of KRS 342.120(4) requiring the exclusion from any award of all compensation which would have been afforded on account of a prior disabling disease or condition. The employer directed his oral argument to the proposition that Pennington v. Winburn, Ky., 537 S.W.2d 167 (1976), should be re-examined as to its soundness, but that, in any event, Pennington, if reaffirmed, should not be extended to affect apportionment situations.

Pennington, supra, dealt with the method for computation of benefits in a permanent partial disability case. The decision was based upon a construction of KRS 342.-730(l)(b). Finn’s case involves permanent total disability. The method for computing the benefits to be paid is spelled out in KRS 342.730(l)(a). Pennington has no application.

Further, in our view, Pennington, supra, has no direct application to apportionment under KRS 342.120. The apportionment function is separate and distinct from the function provided for in KRS 342.730. Some of the present confusion arises from our past failure to recognize and give effect to the severable functions involved.

KRS 342.730(1) states in pertinent part: “Income benefits for disability shall be paid to the employe as follows, . . .” The section continues in its two subsections to prescribe the methodology for computing the amount in dollars to be paid in both total and permanent partial disability cases. This section is specific and undertakes to cover the entire range of possible degrees of disability. This court has concluded that the section is “the basic vehicle” through which the total benefits due a disabled employee would be determined in any given case. The end result called for is an actual dollar figure which, absent involvement of other sections of the workmen’s compensation statutes that have an effect on this figure, is to be paid to the employee. No other section with any relevance to this discussion has as its objective the computation of an actual dollar amount — that statement applies with particular force to KRS 342.120.

KRS 342.120 is an apportionment— second injury fund-type statute. It provides the methodology to be used, when the required facts are proven to exist, to equitably divide responsibility for the payment of compensation otherwise determined to be due an employee. Its purpose is to prevent the employer from being held responsible for more of a compensation award than is attributable to a disability incurred in the course of an employee’s employment with him — a result viewed as particularly unjust to employers and which encourages discrimination against disabled workers in hiring policies.

Young v. Fulkerson, Ky., 468 S.W.2d 118 (1971), delineates the correct procedure to be followed under KRS 342.120. The final result of this procedure is an apportionment of responsibility for payment of an award expressed in terms of percentages. The determination of these percentages exhausts the purpose of KRS 342.120. All that remains is the proper application of these percentages to produce the amounts of money chargeable to the affected parties, the employee, the employer, and the Special Fund.

The confusion and uncertainty already evident became greater after the decision in Pennington, supra. The proposition that KRS 342.730 and 342.120 served separate and distinct purposes became lost in the confusion. Their distinct formulas were melded together to compute the benefits due. The result achieved is a simultaneous determination of the proportionate amounts due and the total amount due. We hold that this is a distortion of the computation process and impermissibly nullifies the effect of the exclusion language of KRS 342.-120.

The percentage of disability figure referred to in subsection KRS 342.730(l)(b) in the computation: average weekly wage times the statutory percentage times the percent disability figure is the combined disability figure. This is true in every case whether or not apportionment is required. The disability figure is not included in the computation provided in KRS 342.730(l)(a) simply because it would always be 100% and to include such a constant element in statutory formula language would achieve nothing but redundancy.

In our view, the proper approach, whether the disability is total, as here, or partial is to employ the methodology of KRS 342.730 to determine the amount to which the claimant is entitled by the whole of his disability. If apportionment is required by operation of KRS 342.120, the formulas provided therein are then applied to the total amount therefore determined to give effect, in terms of dollar amounts payable or nonpayable, to the apportionment between the interested parties, the employer, the employee, and the Special Fund. This procedure gives effect to the exclusion language of KRS 342.120(4). It also has the effect of maintaining responsibility for payment of dollar amounts in the same proportions among the various elements and with the same relationship to the total award as the proportionate responsibility for the total resultant disability was determined to be by the evidence.

Reasoning that the amount assignable to noncompensable disability is already excluded by the method of determination, the Court of Appeals in its opinion held that “exclude” does not mean “deducted from the compensation.” We disagree with this conclusion. If the award in this case were not to be apportioned, Finn would have been entitled to an award of $84.00 per week for his 100% disability. When 50% of a 100% disabled employee’s disability is determined to be noncompensable, yet he receives an award of $71.97 per week (88.8% of the maximum he would receive if his entire disability were compensable), how can it be said that any real effect is given to the exclusion requirement?

KRS 342.120(4) refers to “excluding from compensation.” “Compensation” is paid in dollars and does not refer to percentages divorced from dollar figures. If the statutory language is to have any real meaning in keeping with the context in which it is used, then an amount having the same proportionate relationship to the total amount due that the noncompensable disability bears to the total disability must be deducted from the award.

An authoritative text points out that there are three principle forms of apportionment: between successive employers, between an employer and a second injury fund; and between an employer and the employee. In the first two forms, the employee is assured of full payment from someone; but in the third, the employee faces the possibility of bearing a substantial portion of the loss himself. Our statute is a hybrid. It allows apportionment of the responsibility for the loss among all three parties. The intent is manifest that where a portion of the resultant disability is attributable to a prior “disabling” disease or condition or injury, the employee must bear responsibility. This court has no choice but to give effect to this exclusion.

The benefits in Finn’s case should be computed as follows:

$261.60 X 55% = $143.88. The $143.88 being greater than the maximum under KRS 342.740, is reduced to the maximum permitted, or $84.00 per week.

The $84.00 per week is then apportioned in accordance with the determinations made under KRS 342.120: $84.00 X 25% = $21.00 weekly (liability of the employer); 50% is noncompensable and excluded from the award; $84.00 X 25% = $21.00 weekly (liability of the Special Fund).

Ordinarily we would now end the opinion. The case argued has been decided. The opinion of the Court of Appeals, however, stated: “Had the claimant herein cross appealed he would have been entitled to lost wages . . . .” The parties to this appeal discuss the issue in their briefs.

In Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976), this court stated:

“. . . disability is defined and paid for on the loss of earning capacity theory with a provision for entitlement to compensation based on actual wage loss theory, whichever provides the higher benefits.” “. . . It is apparent that what the legislature has done is adopt two theories for the computation of benefits . . . ” Id. at p. 934.

A second look at this construction convinces us that we must now reject part of that language and its implications. Our conclusion here does nothing to change the result in Apache, for that result did not rest upon part B of the formula set out in that case.

The loss wage theory of computing benefits springs from a construction of the language contained within KRS 342.-620(9). That section provides:

“ ‘Disability’ means, except for purposes of KRS 342.730(l)(c) relating to scheduled losses, a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employe is customarily able to do, in the area where he lives, taking into consideration his age, occupation, education, effect upon employe’s general health of continuing in the kind of work he is customarily able to do, and impairment or disfigurement. A person who has lost wages by reason of his disability, and who is otherwise eligible for compensation, is entitled to compensation during the com-pensable period in an amount equal to the wages lost, so long as this amount does not exceed the applicable maximum compensation. For purposes of determining wages lost under this section, it is assumed that wage earning capacity prior to injury is the average weekly wage as calculated under KRS 342.140. An individual entitled to benefits under permanent partial disability shall be entitled to either his lost wages due to his injury, or body functional disability benefits, whichever is greater.”

KRS 342.620(9) is a definition section. Its purpose is to define disability. The references to lost wages in that section must be construed in light of the purpose of the section in which they appear and in such manner so as to give the intended meaning to related sections, if possible. We have already shown that KRS 342.730 is the sole workmen’s compensation statute section devoted specifically to the computation of income benefits. Income benefits are awarded on the basis of disability. KRS 342.730 is applicable across the entire range of possible disabilities. We conclude that it was intended to be employed in every disability case to determine benefits. A statutory construction which renders specific statutes meaningless in a given set of cases is to be avoided.

Under KRS 342.620(9), for purposes of determining lost wages, it is assumed that the wage-earning capacity prior to injury is the average weekly wage. To determine wages lost there is subtracted from the average weekly wage prior to injury, the amount of wages earned subsequent to injury. In total disability cases, the post-injury earnings would virtually always be zero. Consequently, in total disability cases, the wages lost would equal the average weekly wage. The employee would always be entitled to his average weekly wage, subject only to the maximum limits of KRS 342.740 under the wage-loss theory. If an employee is entitled to his average weekly wage subject only to the maximum permitted by KRS 342.740, then KRS 342.-730(l)(a) is left meaningless. 100% of average weekly earnings subjected to a maximum will always be greater than 55% (66⅜% since 1976) of the same earnings subjected to the same maximum.

We have concluded that this court must give effect to the section, the specific purpose of which is the computation of benefits and within which there is a legislative declaration that benefits be paid based on a statutorily determined percentage of average weekly earnings.

KRS 342.620(9) supplies a single theory by which disability is determined. This is the “loss of earning capacity theory.” Once the degree of disability is determined under this theory, it is inserted into the computation scheme of KRS 342.730 to arrive at the benefits due. Lost wages play an integral role in the determination of disability under this theory; but it cannot be construed as providing a separate and distinct method of computing benefits within the total context of the statute.

Wage earning capacity prior to injury is the average weekly wage. The most persuasive relevant evidence, though not the only evidence, of wage earning capacity subsequent to injury is the wage the claimant is actually able to earn. The difference between the two — wage loss — is presumptive evidence of the decrease in wage earning capacity or disability. The presumptive type evidence can be rebutted by other evidence of the sort indicated in KRS 342.-620(9).

Construing “wages lost” as serving an evidentiary function within the earning capacity theory of determining disability, instead of presenting a distinct alternative theory for the computation of benefits, achieves a congruence between and gives effect to the two sections in terms of what we conceive to be their evident purpose and function which cannot be achieved by the other construction which we made and which the Court of Appeals followed as it was required to do having elected to consider the issue at all in this case.

There is a distinct contradiction presented. Although it is true KRS 342.620(9) states: “A person who has lost wages . is entitled to compensation . . . in an amount equal to the wages lost, . . ”, it is also true that to accept that language literally leaves impotent a later more specific section of the same Chapter, KRS 342.-730. We here take “. . . the last in order of position ... or the clause which is directed specially to the matter in preference to others mentioning it incidentally only.” See Gish v. Shaver, 140 Ky. 647, 131. S.W. 515 (1910).

The same reasoning holds true in the case of permanent partial disability. KRS 342.620(9) states in its last sentence: “An individual entitled to benefits under permanent partial disability shall be entitled to either his lost wages due to his injury, or body functional disability benefits, whichever is greater.” In KRS 342.-730(l)(b) there is a similar but conflicting phrase “. . . the individual entitled to benefits under permanent partial disability shall be entitled to compensation based on lost wages or body functional disability benefits, whichever is greater.” We believe that by the latter phrase the legislature intended lost wages to serve the function that this decision will commit it to serve— an evidentiary factor to be used in the determination of disability. The former phrase is at odds with this interpretation. The rule of Gish is applicable. The procedure under KRS 342.730(l)(b) is identical to that under subsection (l)(a) with one exception. In permanent partial disability cases under subsection (l)(b) there is indeed an alternative method of determining benefits. The alternative is the benefits which could be awarded for body functional disability; “body functional disability benefits” refers to those benefits which are awarded under KRS 342.730(l)(c) for schedule losses — the price tag section. In permanent partial disability cases there are many occasions where a claimant suffers a scheduled loss responsible for his partial disability. Such a loss will often have an adverse effect on the claimant’s ability to labor; if so, he is not limited to the schedule. KRS 342.-730(l)(c)(27); Blair v. General Electric Co., Ky., 565 S.W.2d 631 (1978). The adverse effect on an employee’s ability to labor as determined under the decrease in wage earning capacity theory may or may not entitle him to benefits greater than those provided by the schedule; but, if this is the case, then the caveat in KRS 342.730(l)(b) insures that he will receive the greater award. KRS 342.730(l)(c)(27) and the caveat in KRS 342.730(l)(b) are complementary provisions. The procedure in permanent partial disability cases is to first determine the degree of disability as shown by the evidence presented, including wage loss. This figure is used in the computation scheme in subsection (l)(b) to arrive at the amount due the employee. If the scheduled loss table is applicable, the amount due under that section is determined. This figure is compared with the figure arrived at by use of the (l)(b) computation formula. The employee is entitled to the greater award of these two.

The decision of the Court of Appeals is reversed and the judgment of the Jefferson Circuit Court is reversed and the cause is remanded to the Jefferson Circuit Court with directions to remand this case to the Board for correction of the award in accordance with the views expressed in this opinion.

JONES and STERNBERG, JJ., concur.

LUKOWSKY, J., concurs in result and files separate opinion.

PALMORE, C. J., concurs in result and files separate opinion.

CLAYTON and STEPHENSON, JJ., dissent and concur in result only of the decision of the Court of Appeals.

PALMORE, Chief Justice,

concurring.

I concur in the result of the majority opinion, but not in the process of reasoning by which it is reached. Whereas the majority opinion avoids the method of computation approved in Pennington v. Winburn, Ky., 537 S.W.2d 167, 168 (1976), by the charitable stratagem of holding that Pennington does not apply to apportionment cases, I would simply overrule it.

Paragraph (3) of KRS 342.120, the apportionment statute, provides that the employer is liable for the degree of disability that would have resulted from the work-related injury alone, absent the previous disability or condition. In this case the degree of disability resulting from the injury of October 1974 is 25%. By anybody’s definition a 25% disability is a “partial” disability. To find out what it means in terms of workmen’s compensation necessarily requires the application of KRS 342.730(l)(b), the partial disability statute, and that of course involves Pennington, which I continue to think is so patently wrong that I could not bring myself to dissent from this opinion, which reaches the right result, on the strength of it.

I agree with the view expressed by Judge Vance’s concurring opinion in the Court of Appeals that the action of that court, which we are now reversing, was forced by our own majority opinion in Pennington.

LUKOWSKY, Justice,

concurring.

I concur in the result reached by my brothers in this case. However, I believe it necessary that I disassociate myself from the process of intellectual sophistry by which my colleagues write the following language out of the following statutes.

KRS 342.620(9) (1972): An individual entitled to benefits under permanent partial disability shall be entitled to either his lost wages due to his injury, or body functional disability benefits, whichever is greater.
KRS 342.730(l)(b) (1972): . . . provided, however, the individual entitled to benefits under permanent partial disability shall be entitled to compensation based on lost wages or body functional disability benefits, whichever is greater.

It would have been enough to dispose of the gratuitous comment of the Court of Appeals by pointing out that these statutes apply only to the computation of benefits for permanent partial disability. The statutes do not provide for dual theories of computing benefits in total disability cases. KRS 342.730(l)(a) (1972).

The vitality of the quoted statutory language and the interpretation we placed on it in Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976) can not be philosophized away. The mandate in Apache, supra, was issued on November 12,1976. In December of 1976 the legislature saw fit to reenact KRS 342.730(l)(b). The only significant change made was the addition of the following to the previously quoted language, “. . notwithstanding any section of KRS Chapter 342 to the contrary, there shall be no minimum weekly income benefit for permanent partial disability.”

It is a fundamental principle of Kentucky law that when a statute has been construed by a court of last resort and the legislature subsequently has substantially reenacted the statute, it will be deemed to have adopted the construction theretofore placed upon the statute by the court unless the contrary is clearly shown by the language of the new enactment. Brown v. City of Harrodsburg, Ky., 252 S.W.2d 44 (1952); Falender v. Hankins, 296 Ky. 396, 177 S.W.2d 382 (1944); Coleman v. Inland Gas Corporation, 231 Ky. 637, 21 S.W.2d 1030 (1929).

The change effected by the 1976 amendment was the elimination of the minimum weekly income benefits in permanent partial disability cases. Certainly, the change expressed no legislative disavowal of the dual theories of computing benefits in permanent partial disability cases. Consequently, the reenactment reenforces the dual theories of computation set forth in the statute and applied in Apache, supra.

Apache, supra, may have been an invitation to a legislative dinner party held in December, 1976, but it in no way determined the courses to be eaten by those attending. That the diners chose to consume the entré of minimum weekly income benefit and decline the dessert of dual theories of compensation was a matter of legitimate legislative choice. The people of this Commonwealth, acting through their duly elected legislators, have the right to select an illogical, expensive or even foolish menu of workmen’s compensation. This court is not a maitre d’hotel with power to change the menu on other than constitutional grounds.

Jn the last analysis the palate of the people determines the legislative diet. As President Ulysses S. Grant put it in his Inaugural Address on March 4, 1869, “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.” The continued application of the dual theories of compensation caused the legislature to eat the rejected dessert at their session in 1978 when they amended KRS 342.620(9) and KRS 342.730(l)(b) by striking the quoted language.

The constitutional ring is closed. The legislature gave. The legislature has taken away. This court should respect the function of the legislature. As the Supreme Court of the United States wrote in Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-195, 98 S.Ct. 2279, 2301-02, 57 L.Ed.2d 117, 146-47 (1978):

“Here we are urged to view the . Act ‘reasonably,’ and hence shape a remedy ‘that accords with some modicum of commonsense and the public weal.’ (citation omitted) But is that our function? . Congress has spoken . Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto. . We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt (sic) congressional action by judicially decreeing what accords with ‘commonsense and the public weal.’ Our Constitution vests such responsibilities in the political Branches.”

We should not attempt to erase vested substantive rights by retroactively applying these amendments under the guise of statutory interpretation. Cantrell v. Stambaugh, Ky., 420 S.W.2d 677 (1967).

      . The computation would be: $261.60 X 55% =$143.88. The result is greater than the maximum award permitted by KRS 342.740. Therefore, the award would be reduced to the permitted maximum, which in this case is $84.00 per week.

      . Larson, Workmen’s Compensation Law, Sec. 59.20, pp. 10-265, 266, Vol. 2 (1976).

      . The court went on to set out the formula derived from this interpretation: “. . . the employee is entitled to benefits computed by the most favorable of the following formulae: A. 55% of the average weekly earnings of the employee at the time of his injury and 2⅛% of his average weekly wage at the time of his injury for each dependent up to a maximum of three, multiplied by the percentage of occupational disability caused by the injury. B. His average weekly wage prior to the injury minus his average weekly wage subsequent to injury.

      . See concurring opinion of Judge Park, Transport Motor Exp., Inc. v. Finn, Ky.App., 568 S.W.2d 509, 513 (1977).

      . Cf. Larson, Workmen’s Compensation Law, Vol. 2, Sec. 57.00, p. 10-1 (1976).

      . Cited in concurring opinion by Judge Park, Transport Motor Exp., Inc. v. Finn, 568 S.W.2d 509, 515 (1977).

      . Kentucky Law Survey — Workmen’s Compensation, 66 Ky.L.J. 509 (1978).


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    EASTERN COAL CORPORATION, Movant, v. Earsel A. MAY et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William J. Baird, III, Baird & Baird, Pikeville, for movant.
    Kelsey E. Friend, Kelsey E. Friend Law Firm, Pikeville, for respondents.
   OPINION AND ORDER

The motion of Eastern Coal Corporation for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered November 25, 1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19,1978.

All concur.


text:
    James R. YOCOM, Movant, v. BARTLEY & BARTLEY COAL COMPANY, Orville Ratliff, and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Cyril E. Shadowen, Dept, of Labor, Louisville, for movant.
    William J. Baird, III, Kelsey E. Friend, Pikeville, William L. Huffman, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of James R. Yocom, Commissioner of Labor, Commonwealth of Kentucky, and Custodian of the Special Fund, for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered May 27,1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


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    BARTLEY & BARTLEY COAL COMPANY et al., Movants, v. Orville RATLIFF et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William J. Baird, III, Pikeville, Cyril E. Shadowen, Dept, of Labor, Louisville, for movants.
    Kelsey E. Friend, Pikeville, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Bartley & Bartley Coal Company et al., for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered May 27,1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


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    Frances Jones MILLS, Kentucky State Treasurer & Custodian, of the Uninsured Employers’ Fund, Movant, v. Edward E. PARSLEY, James Petty, and William L. Huffman, Director of Workmen’s Compensation Board, Respondent.
    Supreme Court of Kentucky.
    Nov. 21, 1978.

      Robert F. Stephens, Atty. Gen., Michael A. Richardson, Asst. Atty. Gen., Frankfort, for movant.
    William S. Cooper, Collier, Arnett, Coleman & Cooper, Elizabethtown, David B. Vickery, Leitchfield, for respondent.
   OPINION AND ORDER

The motion of Frances Jones Mills, Treasurer of the Commonwealth of Kentucky, as custodian of the Uninsured Employer’s Fund, for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered May 20,1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    James R. YOCOM, Movant, v. Charles E. REID, Airco Alloys and Carbide, Inc., and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, Gemma M. Harding, Deputy Gen. Counsel for Appeals, Dept, of Labor, Louisville, for movants.
    L. M. Tipton Reed, Jr., Mayfield, Burke B. Terrell, Padicah, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of James R. Yocom, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund, for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered June 17, 1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


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    ARMCO STEEL CORPORATION et al., Movants, v. Donald KOUNS and Workmen’s Compensation Board of Kentucky, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Howard VanAntwerp, III, Ashland, Gem-ma M. Harding, Dept, of Labor, Louisville, for movants.
    Robert L. Catlett, Jr., Louisville, for respondents.
   OPINION AND ORDER

The motion of Armco Steel Corporation, et al., for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered December 9, 1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


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    KENTUCKY CARBON CORPORATION, Movant, v. Charles H. SHORTRIDGE et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William J. Baird, III, Baird & Baird, Pikeville, for movant.
    John D. Hays, Pikeville, John Riehl, Jr., Dept, of Labor, Louisville, for respondents.
   OPINION AND ORDER

The motion of Kentucky Carbon Company for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered December 9, 1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    James R. YOCOM et al., Movants, v. Donald SAYLOR et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Gemma M. Harding, Deputy Gen. Counsel for Appeals, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for movants.
    E. Andre Busald, Florence, J. Kenneth Meagher, Cincinnati, Ohio, William L. Huffman, Director, Workmen’s Compensation Bd., Dept, of Labor, Frankfort, for respondents.
   OPINION AND ORDER

The motion of James R. Yocom, et al. for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered December 9, 1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


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    APPALACHIAN REGIONAL HOSPITAL, INC., Movant, v. William D. DOTSON, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund & Workmen’s Compensation Board of Kentucky, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.

      William J. Baird, III, Baird & Baird, Pikeville, for movant.
    Kelsey E. Friend, Kelsey E. Friend Law Firm, Pikeville, Cyril E. Shadowen, Dept, of Labor, Louisville, William L. Huffman, Director, Workmen’s Compensation Bd., Dept, of Labor, Frankfort, for respondents.
   OPINION AND ORDER

The motion of Appalachian Regional Hospital, Inc. for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered December 16, 1977, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


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    BAILEY MINING COMPANY, INC. and Isle Coals, Inc., Movants, v. Thomas BENTLEY et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William G. Francis, Francis, Kazee & Francis, Prestonsburg, for movants.
    Kelsey E. Friend, Pikeville, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Bailey Mining Company, Inc., and Isle Coals, Inc., for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered January 6, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Movant, v. Thomas BENTLEY et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Cyril E. Shadowen, Dept, of Labor, Louisville, Kenneth E. Hollis, Dept, of Labor, Frankfort, for movant.
    Fred G. Francis, Prestonsburg, Kelsey E. Friend, Pikeville, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered January 6, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    PICKANDS, MATHER & CO., Chisholm Mines, Movants, v. Clifford ONEY et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William J. Baird, III, Baird & Baird, Pikeville, for movants.
    Kelsey E. Friend, Pikeville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, John Riehl, Jr., Asst. Counsel, Dept, of Labor, Louisville, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Pickands, Mather & Co.; Chisholm Mines, for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered January 13,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    NATIONAL MINES CORPORATION, Movant, v. Burchell JACOBS, Special Fund and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William S. Kendrick, Francis, Kazee & Francis, Prestonsburg, for movant.
    John D. Preston, Perry & Preston, Paints-ville, John Riehl, Jr., Louisville, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of National Mines Corporation for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered March 24, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    ALLIED TOOL & SUPPLY CO., INC., Movant, v. William J. SMITH, Workmen’s Compensation Board of Kentucky and the Special Fund, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.

      James M. Graves, William P. Swain, George R. Carter, Louisville, for movant.
    Robert F. Stephens, Atty. Gen., Frankfort, John Frith Stewart, Rex Dunn, Louisville, Gemma Harding, Dept, of Labor, Louisville, William L. Huffman, Kenneth Hollis, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Allied Tool & Supply Co., Inc. for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered March 24, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Movant, v. Sue Carol VAUGHT, Tecumseh Products Company, Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Cyril E. Shadowen, Dept, of Labor, Louisville, Kenneth E. Hollis, Dept, of Labor, Frankfort, for movant.
    Lester H. Burns, Jr., Burnside, John G. Prather, Jr., Somerset, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of James R. Yocom, Commissioner of Labor and Custodian of the Special Fund for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered April 21, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Movant, v. Glenn GOOSLIN and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Ed W. Hancock, Frankfort, Louis Kawa-ja, Lexington, for movant.
    R. Roland Case, Kelsey E. Friend Law Firm, Pikeville, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Commonwealth of Kentucky, Department of Transportation Bureau of Highways for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered May 19,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    James R. YOCOM, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund, Movant, v. Glen GOOSLIN, Commonwealth of Kentucky, Department of Transportation, Bureau of Highways, and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Gemma M. Harding, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for movant.
    R. Roland Case, Kelsey E. Friend Law Firm, Pikeville, Louis Kawaja, Dept, of Transp., Lexington, William L. Huffman, Director, Workmen’s Compensation Bd., Dept, of Labor, Frankfort, for respondents.
   OPINION AND ORDER

The motion of James R. Yocom, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered May 19,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    NATIONAL MINES CORPORATION, Movant, v. Earl Eugene MEADE, Special Fund and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William G. Francis, Prestonsburg, for movant.
    G. C. Perry, III, Paintsville, Gemma Harding, Louisville, William L. Huffman, Dept, of Labor, Frankfort, for respondents.
   OPINION AND ORDER

The motion of National Mines Corporation for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered June 2,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    EASTERN COAL CORPORATION, Movant, v. Willie VARNEY et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William J. Baird, III, Baird & Baird, Pikeville, for movant.
    Kelsey E. Friend, Pikeville, John Riehl, Jr., Dept, of Labor, Louisville, William L. Huffman, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Eastern Coal Corporation for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered June 2,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    KENTUCKY CARBON CORPORATION, Movant, v. Ralph R. COX et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    William J. Baird, III, Baird & Baird, Pikeville, for movant.
    Kelsey E. Friend, Pikeville, John Riehl, Jr., Dept, of Labor, Louisville, William L. Huffman, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Kentucky Carbon Corporation for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered July 7, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    DEPARTMENT FOR HUMAN RESOURCES, Bureau of Health Services and United States Fire Insurance Company, Movants, v. Charlotte M. McQUEEN, Workmen’s Compensation Board and James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Stephen M. O’Brien, III, Lexington, for movants.

      Lester Burns, Jr., Mark D. Knight, Burnside, Cyril E. Shadowen, Dept, of Labor, Louisville, Donald Campbell, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of the Department for Human Resources, Bureau of Health Services and United States Fire Insurance Company for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered July 28,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    James R. YOCOM et al., Movants, v. DEPARTMENT FOR HUMAN RESOURCES et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Cyril E. Shadowen, Louisville, Kenneth E. Hollis, Frankfort, for movants.
    Lester H. Burns, Jr., Mark D. Knight, Burnside, Stephen M. O’Brien, III, Land-rum, Patterson & Dickey, Lexington, Donald Campbell, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of James R. Yocom et al., for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered July 28,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    Norwood WELLS, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Jack Emory Farley, Public Advocate, William M. Radigan, Asst. Public Advocate, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., George Geoghegan, III, Asst. Atty. Gen., Frankfort, for respondent.
   OPINION AND ORDER

The motion of Norwood Wells for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered July 7,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinions in Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977), and Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978).

All concur.


text:
    David Wayne STEWART, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Timothy T. Riddell, Asst. Public Defender, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for respondent.
   OPINION AND ORDER

The motion of David Wayne Stewart for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered July 7, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinions in Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977), and Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978).

All concur.


text:
    Frank PRATT and Lola Pratt, Movants, v. MOUNTAIN UTILITIES COMPANY, INC., Respondent.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    J. K. Wells, Wells, Porter & Schmitt, Paintsville, for movants.
    Bert T. Combs, Robert I. Cusick, Jr., Tar-rant, Combs & Bullitt, Louisville, Eugene C. Rice, Paintsville, for respondent.
   OPINION AND ORDER

The motion of Frank Pratt and Lola Pratt for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered April 28, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in City of Louisville v. Allen, Ky., 385 S.W.2d 179 (1964).

All concur.