author: McDONALD, Chief Justice.

text:
    Marshall BAXTER, Appellant, v. Mattie WILLIAMS and Gail Gibson, Appellees.
    No. 5663.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1976.
    Rehearing Denied Dec. 23, 1976.

      Huffaker & Green, Tahoka, for appellant.
    Aldridge, Harding, Aycock & Actkinson, Farwell, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Baxter from judgment placing a constructive trust on a Piper Airplane; awarding such airplane to plaintiff Williams; ordering Baxter to convey the airplane to plaintiff; and decreeing plaintiff interest on the judgment upon value of the aircraft, ($19,000).

Plaintiff Mattie Williams sued defendants Gail Gibson and Marshall Baxter alleging that on June 19, 1973 plaintiff purchased an airplane for $7000; that defendant Gibson had no right to sell or dispose such aircraft; that defendant Baxter obtained such aircraft from defendant Gibson after knowledge of plaintiff’s interest in the aircraft; that Baxter made improvements to the aircraft after which it had a value of $24,000; that both Gibson and Baxter converted such aircraft to plaintiff’s damage of $24,000.

Plaintiff plead alternatively she entered a business arrangement with Gibson wherein she authorized him as her agent to purchase an airplane for the formation of a flying service; that plaintiff furnished $7000 with which Gibson purchased the aircraft; that without plaintiff’s knowledge and in breach of the relationship Gibson secured the aircraft bill of sale and registration in the name of “Gail Gibson d/b/a Gibson Flying Service”; that plaintiff never gave or intended to give Gibson the aircraft; that Gibson was to manage the Flying Service; that Gibson rented the airplane out, collecting rents without accounting to plaintiff for such rents; that plaintiff owns the airplane by virtue of a purchase money resulting trust; and that Gibson held the airplane as a constructive trustee for plaintiff’s benefit.

Plaintiff further plead Gibson sold the airplane to Baxter; that Baxter knew the airplane was owned by plaintiff when he bought it, to plaintiff’s damage.

Plaintiff prayed for damages and any other relief in law or equity to which she may show herself entitled under the evidence.

Gibson answered the airplane was his; that he bought it with money plaintiff paid him for an indebtedness plaintiff owed him.

Baxter answered by general denial; and filed cross-action against plaintiff and Gibson alleging he purchased the aircraft from Gibson for $4000; that the plane was registered in Gibson’s name; that he was a bona fide purchaser for value and without notice of plaintiff Williams’ claim to the aircraft. Baxter prayed that he be declared owner of the aircraft; and alternatively he be awarded recovery over against Gibson for any recovery by plaintiff against him.

Trial was to a jury, findings of which are summarized as follows:

1) Failed to find Gibson converted the aircraft in which Mattie Williams had an ownership interest.
2) Gibson was acting as agent for Gibson Flying Service when he purchased the aircraft.
3) Prior to and on November 23, 1973 Gibson and Mattie Williams were partners in Gibson Flying Service, which was a partnership formed for the acquisition of an aircraft.
4) Gibson received $3500. rental payments for Gibson Flying Service from Briscoe and converted same.
5) Mattie Williams never intended to forego her ownership interest in the aircraft.
6) Gibson failed to give a full financial accounting to Mattie Williams.
7) Failed to find Baxter converted the ownership interest of Mattie Williams in the aircraft.
8) Failed to find the transfer of the aircraft by Gibson to Baxter was in fraud of the ownership or security interest of Mattie Williams.
9) Baxter had notice of Mattie Williams’ ownership or security interest in the aircraft on or prior to November 23, 1973.
10) Baxter had notice of Mattie Williams’ ownership interest or security interest in the aircraft on or prior to December 24, 1973.
11) The value of work performed by Baxter at the time of receiving said notice was NONE.
12) Baxter did not act in good faith at the time he purchased the aircraft from Gibson (Good faith was defined as honesty in fact in the conduct or transaction).
13) Baxter gave value at the time he purchased the aircraft from Gibson.
14) The value of the aircraft after it was repaired or rebuilt by Baxter was $19,000.
15) Gibson was not the owner of Gibson Flying Service.
16) The $7500. paid to Gibson was not payment of a debt that Mattie Williams paid to Gibson.
17) Title to the aircraft was in Gail Gibson, as owner of Gibson Flying Service.

The trial court rendered judgment on such verdict placing a constructive trust on the aircraft; awarding such airplane to plaintiff Williams free and clear of any claims of Baxter or Gibson; ordered Baxter to convey the airplane to plaintiff; and decreed plaintiff interest on the judgment upon the value of the aircraft ($19,000). The judgment further decreed plaintiff recovery of $1750. from Gibson.

Defendant Gibson has not appealed.

Defendant Baxter appeals on 56 points pertinent of which are summarized as follows:

1) The trial court erred in not rendering judgment for Baxter, because title to the aircraft was in Gibson, and there is no evidence Baxter had any notice of plaintiff’s claim to the aircraft when he purchased it from Gibson.
2) There is no evidence or insufficient evidence to support the jury’s answer to Issues 2, 3, 9, 10, 12, 14 and 15.
3) The trial court erred in decreeing a constructive trust be placed on the aircraft, ordering Baxter to convey same to plaintiff, and awarding the aircraft to plaintiff, because plaintiff had no pleadings asking for such relief.
4) The trial court erred in permitting plaintiff to recover interest upon the value of the aircraft ($19,000) because plaintiff was not entitled to interest on the improved value of the property.
5) The trial court erred in failing to award Baxter judgment over against Gibson for the $4000. Baxter paid Gibson for the aircraft, plus interest thereon.

There is evidence Mattie Williams was formerly married to Gail Gibson. They were divorced in New Mexico in 1970, and thereafter Gibson came to Muleshoe, Texas. In 1973 Mrs. Williams came to Muleshoe and rented a house. For a time Gibson had a room at Mrs. Williams’ house, and they were discussing remarriage to each other. They agreed to form a partnership to spray for bugs. Mrs. Williams put up $7000 of her separate funds to purchase an airplane; Gibson was to manage the business; and they were to divide the profits. Gibson purchased the airplane with Mrs. Williams’ $7000, but had it registered in the name of “Gail Gibson d/b/a Gibson’s Flying Service”. The airplane was leased to Kenneth Briscoe. The rentals paid were $3588.46 but Gibson did not remit any portion of this to Mrs. Williams. Gibson married someone other than Mrs. Williams. Gibson wanted to sign a bill of sale to the airplane to Briscoe to keep Mrs. Williams from getting the airplane. Gibson told Floyd Houston in October 1973 he was going to put the airplane in Baxter’s name to keep Mrs. Williams from grounding it. Baxter came after the airplane and took it to Tahoka. Baxter took the engine down to repair or rebuild the aircraft. He told Gibson the charges would be some $4000; Gibson asked him if he would buy the aircraft and Baxter offered $4000. A bill of sale dated November 23, 1973 was executed from Gibson to Baxter, but which was not recorded until December 4, 1973. Baxter didn’t pay Gibson any money on November 23, 1973; Gibson extended him credit; he paid the $4000 in cash to Gibson approximately a month later. In early December Mrs. Williams in search of the aircraft which was missing from Muleshoe, located it in possession of Baxter at Tohoka. Mrs. Williams told Baxter “she wanted the airplane,” and that “it was her airplane,” and he admitted this took place before he paid Gibson the $4000. Baxter claimed on his income tax return that he paid $2000 for the airplane. Baxter rebuilt and repaired the aircraft, and it is worth $18,000 to $20,000. Gibson in his deposition testified Baxter was aware there was “some kind of a dispute as to the airplane” at the time he purchased it.

There is ample evidence from which the jury could conclude that Baxter had notice of plaintiff’s claim to the aircraft when he purchased it. The title recording statutes therefore give no protection to Baxter. Curtis v. Carey, CCA, NWH, 393 S.W.2d 185.

Moreover, the evidence is ample to sustain the jury’s findings 2) that Gibson was acting as agent for Gibson Flying Service when he purchased the aircraft; 3) that Gibson and Mrs. Williams were partners in Gibson Flying Service; 9) that Baxter had notice of Mrs. Williams’ ownership interest on or prior to November 23, 1973; and 10) and on or prior to December 24, 1973; 12) that Baxter did not act in good faith at the time he purchased the aircraft from Gibson; 13) that the value of the aircraft after it was repaired or rebuilt was $19,000; 15) and that Gibson was not the owner of Gibson Flying Service.

The law imposes a constructive trust where there is a fiduciary or confidential relationship between two parties, and the party holding property or money would profit by a wrong or be unjustly enriched if he were allowed to keep the property or money. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401. Moreover, the law will raise a constructive trust upon breach of a confidential relationship such as a partnership; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557. And a constructive trust is not in reality a trust but an equitable remedy, Miller v. Huebner, CCA, NRE, 474 S.W.2d 587; Oak Cliff Bank & Trust Co. v. Steenbergen, CCA, NRE, 497 S.W.2d 489. Persons engaged in partnership or joint adventure, or about to assume such relationship, owe to each other the utmost good faith and the most scrupulous honesty. And a person who purchases property for another but purchases it in his own name holds it upon a constructive trust for the other; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Maykus v. First City Realty and Financial Corp., CCA, 518 S.W.2d 887. Finally whether a partnership or a fiduciary relationship exists is a question of fact. Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997; Oak Cliff Bank & Trust Co. v. Steenbergen, supra.

The trial court did not err in decreeing a constructive trust be placed on the aircraft, ordering Baxter to convey same to plaintiff, and awarding same to plaintiff, and plaintiff’s pleadings in praying for “such other and further relief, either special or general, in law or in equity, to which she may show herself entitled to receive under the evidence” are sufficient and adequate to sustain the trial court in awarding the relief granted.

The trial court awarded plaintiff interest upon the improved value of the aircraft ($19,000), instead of upon the value at the time Baxter purchased same for $4000 with notice of plaintiff’s ownership interest; and the trial court failed to award Baxter judgment over against Gibson for $4000 plus interest, or for judgment over for court costs that may be paid by Baxter.

We think the trial court should have only awarded plaintiff interest on the value of the aircraft when purchased, i. e. $4000; and should have awarded Baxter judgment over against Gibson for $4000 plus interest.

The judgment of the trial court is reformed to award plaintiff interest on $4000 instead of $19,000 from date of judgment; and to award Baxter judgment against Gibson for $4000 plus interest from date of judgment (December 31, 1975). The trial court’s adjudication of court costs is not disturbed.

All other points have been considered and are overruled.

REFORMED AND AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Bernard B. WARREN, as Executor of the Estate of John L. Hammond, Appellant, v. Mona Rae JAMISON, and West Texas State Bank, Appellees.
    No. 5666.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1976.
    Rehearing Denied Dec. 23, 1976.

      Robert E. Barfield, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Gibson, Ochsner, Adkins, Harlan & Hankins, Amarillo, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Appellant Executor of the Estate of John L. Hammond from take-nothing judgment in his suit against Appellees West Texas State Bank and Mona Rae Jamison.

John L. Hammond filed this case against Mona Rae Jamison for damages for personal injury caused by alleged negligence of Jamison in operation of an automobile on the parking lot of the West Texas State Bank in Canyon. Pending trial plaintiff died and his executor was made party plaintiff. The Bank was subsequently added as a party defendant on the premise the Bank had contributed to injury to Hammond in the construction and maintenance of its facilities.

Jamison answered by general denial; a plea of contributory negligence of Hammond; and a plea of intervening negligence by the Bank.

The Bank answered by general denial; a plea of contributory negligence of Hammond; and a plea that the sole proximate cause was the negligence of Jamison.

Trial was to a jury. At the conclusion of the evidence the trial court granted the Bank’s motion for instructed verdict in its favor, and the Bank did not thereafter participate in the trial.

Hammond’s case against Jamison was submitted to the jury which in answer to Special Issues acquitted both Jamison and Hammond of negligence.

The trial court rendered judgment on the verdict that plaintiff take nothing against Jamison, and that plaintiff take nothing against the Bank, based upon the granting of the Bank’s motion for instructed verdict.

Appellant appeals on 12 points, but states that points 1, 2, and 8 are abandoned, and point 4 is not briefed. The remaining 8 points are summarized as follows:

3) The trial court erred in granting Bank’s motion for instructed verdict.
5) The verdict was against the great weight and preponderance of the evidence.
6) The verdict was without evidence to support it in that the conduct of Ja-mison constituted negligence per se.
7) The verdict was defective in that no issue was submitted on which the jury could have found that the collision was caused by anything other than the negligence of one or more of the parties.
9)The trial court erred in refusing an issue for damages for lost ability to work and labor as a separate element of damage.
10) The trial court erred in permitting Jamison’s counsel to argue to the jury concerning the Bank’s dismissal from the case.
11) Certain members of the jury were guilty of misconduct in concealing from appellant’s counsel on voir dire that they had previously been defendants in lawsuits.
12)The juror Johnson was guilty of misconduct in concealing from appellant’s counsel on voir dire a previous acquaintance and professional relationship with certain members of the law firms representing appellees.

Point 3 asserts the trial court erred in granting the Bank’s motion for instructed verdict.

On January 25, 1974 both Mr. Hammond and Miss Jamison visited the Bank for business purposes at about 9 o’clock in the morning. Miss Jamison remaining in her car, utilized the Bank’s drive-up facilities. Mr. Hammond arrived at the Bank in a car driven by his wife. She parked in one of the parking spaces along the south side of the Bank’s lot. Miss Jamison had been a customer of the Bank about 4 months; Mr. Hammond had been a customer of the Bank since it opened in 1967. Mr. Hammond went into the Bank, then came out of the Bank back to his car and removed a sack of shelled pecans which he intended to deliver to someone in the Bank. On his return second trip into the Bank, as he walked across the parking lot he was bumped by the automobile driven by Miss Jamison as she exited from the Bank’s drive-in facility. Miss Jamison was travelling 2 or 3 miles per hour when she struck Mr. Hammond. He was knocked off balance and fell to the ground sustaining injuries to his arm and leg. The day was clear and sunlit. Miss Jamison’s car was plainly visible and both she and the Hammonds were familiar with the scene. Mr. Hammond had been coming to the Bank at least once a month since 1967 and parking on the parking lot, then going into the Bank to transact his business and returning to his car on the lot. The drive-in facility is located on the parking lot. The Bank parking lot and premises were exactly the same as they had been since Mr. Hammond started banking there in 1967.

Ordinarily a plaintiff-invitee cannot recover if he knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization and appreciation. Wesson v. Gillespie, Tex., 382 S.W.2d 921; Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368; McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Corley v. Laco Rentals, Inc., Tex.Civ.App. (Waco) NWH, 487 S.W.2d 446. See also, Adam Dante Corp. v. Sharpe, Tex., 483 S.W.2d 452, 457 which approves and reaffirms Wesson v. Gillespie.

In the Adair case the court assumed the dangerous condition was not open and obvious and that the area in which Mrs. Adair fell was not properly lighted. Nevertheless, Mrs. Adair had been on the stairs many times, and because of her many exposures to the condition, the court charged her with knowledge, realization and appreciation of the danger.

In the Wesson ease, where plaintiff had crossed the same area two to five times a week for four or five years, the court charged plaintiff with knowledge and appreciation.

In the case at bar the defect was not latent and Mr. Hammond had been across the parking lot and into the Bank and out of the Bank onto the parking lot at least once a month since in 1967.

Under such facts Mr. Hammond is charged with knowledge and appreciation as a matter of law.

Points 5 and 6 assert there is no evidence to support the jury’s verdict, and that same is against the great weight and preponderance of the evidence; and point 7 complains that the trial court did not submit any issue on which the jury could have found that the collision was caused by anything other than the negligence of the parties.

Miss Jamison bumped Mr. Hammond when leaving the drive-in facility and travelling 2 or 3 miles per hour. She looked before she started off. The sun hit her windshield at such an angle that she was blinded. Her car had travelled a car length when she heard a noise and observed that Mr. Hammond had walked into her car and fell. There was nothing to prevent Mr. Hammond from seeing Miss Jamison’s car.

The jury was authorized to find as it did and such findings are not against the great weight and preponderance of the evidence. In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660.

The trial court’s charge contained an instruction on unavoidable accident; appellant did not object to such instruction. Under such situation any complaint is waived. Rule 274 TRCP.

Point 9 complains of the trial court’s refusal to submit an issue for damages for lost ability to work. Since appellees are not liable there was no error in not submitting the requested damage issue.

Point 10 complains of asserted improper jury argument in permitting appellees’ attorney to mention that the Bank was no longer in the lawsuit.

The trial judge had informed the jury earlier that die Bank was no longer a party to the lawsuit; and that he had determined that as a matter of law they should be taken from the lawsuit.

The argument complained of, did no more than tell the jury something the court had already told them.

Points 11 and 12 complain of asserted jury misconduct.

Appellant asserts the juror Johnson failed to disclose on voir dire that she was acquainted with some members of the firms representing appellees. The questions asked on voir dire are not a part of the record before us. Mrs. Johnson testified on motion for new trial that she truthfully answered all questions asked of her.

Appellant further asserts jurors Noble and Lester did not respond when the panel was asked generally on voir dire if any of the panel had ever been defendant in a lawsuit. On motion for new trial juror Noble acknowledged he heard the question about lawsuits and made no response because he had been involved only in a “bankruptcy deal” and “didn’t consider a bankruptcy deal and a lawsuit the same thing”. The juror Lester acknowledged on motion for new trial he heard the general question about lawsuits and did not respond although he had been once sued in County Court for delinquent taxes. He stated that he had never been served in the case although a judgment was taken against him. From the record as-a whole we think the jurors failure to answer the questions as to having been defendants in a lawsuit did not amount to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434 TRCP; Childers v. Texas Employers’ Insurance Association, 154 Tex. 88, 273 S.W.2d 587.

All appellant’s points are overruled.

AFFIRMED.


author: SHANNON, Justice.

text:
    J. F. DICKSON, Appellant, v. R. P. DICKSON, Appellee.
    No. 12432.
    Court of Civil Appeals of Texas, Austin.
    Dec. 1, 1976.
    Rehearing Denied Dec. 22, 1976.

      Kirk Patterson, Mitchell & Stewart, San Antonio, for appellant.
    Sander W. Shapiro, Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Roy Q. Minton, John L. Foster, Jones, Blakeslee, Minton, Burton & Fitzgerald, Inc., Austin, for appellee.
   SHANNON, Justice.

Appellee, Roberta Purvis Dickson, filed suit for divorce against appellant, Fagan Dickson, in the district court of Travis County. The parties also sought a disposition of their estate. After trial to a jury, judgment was entered granting the divorce and dividing the property. We will affirm that judgment.

Some aspects of this case have been considered previously by this Court in an appeal from certain temporary orders of the district court. Dickson v. Dickson, 516 S.W.2d 28 (Tex.Civ.App.1974, no writ).

The parties were married in December, 1947, and they separated in March, 1974. Prior to December, 1947, appellee was the widow of an early Austin entrepreneur, Malcolm Reed. She and Reed had two children, Roberta and Lucy. Appellant also had been married previous to 1947, and he had one child, James Dickson. Appellant and appellee had no children by their marriage.

At time of her second marriage appellee was a woman of wealth and property. The primary source of her wealth was the income from two trusts created by her first husband. Reed Trust Number One was an inter vivos trust. Reed Trust Number Two was a testamentary trust. Appellee was the life beneficiary of the income from Reed Trust Number Two with the remainder interest in the Reed children, Roberta and Lucy. The income from Reed Trust Number Two consisted primarily of oil royalties.

When he married appellee, Fagan Dickson was a man of slender means. He was employed as First Assistant in the Attorney General’s office with an annual salary of $7,500. He had no other income or property of any significance.

Early in their marriage the parties obtained a written opinion from a tax attorney pertaining to the legal nature of income from the Reed Trusts. That opinion attempted to summarize the law with respect to what was separate property and what was community property. The opinion also suggested how books could be set up to account for each character of property-

In response to the tax opinion, appellant caused to be created a bookkeeping system which he caused to be maintained throughout the marriage. Appellant caused three sets of books to be set up, one for each estate: appellee’s separate, appellant’s separate and their community. All income was considered to be community income, except for oil royalties. Oil royalties were treated as the separate property of the estate owning the interest. Most of the income enjoyed by the parties resulted from distributions from Reed Trust Number Two. That income was treated as appel-lee’s separate property to the extent it represented oil royalty and as community property to the extent it represented other classes of income.

When an asset belonging to a particular estate was sold, the proceeds from that sale were considered to belong to that estate and were so treated. Any property acquired from the proceeds of the sale was likewise considered and treated by appellant as an asset of that estate. Also, appellant followed the practice of placing real property, which was purchased with appel-lee’s separate funds, in appellee’s name as her sole and separate property. During the twenty-seven years of marriage the income from Reed Trust Number Two increased greatly, as did the value of real estate purchased with that income.

In keeping with the tax opinion, the parties opened an account in the Capital National Bank styled the “RPD Bank Account” and accounts in the American National Bank and the Capital National Bank styled the “Mr. and Mrs. Account.” Pursuant to the opinion they deposited certain income from Reed Trust Number Two into the “RPD” account and certain income from Reed Trusts Numbers One and Two into the “Mr. and Mrs.” account. The parties also opened a bank account termed the “FD” account.

It is fair to conclude that shortly after marriage to appellee Dickson virtually retired from the practice of law. His energies were directed principally toward the handling of his wife’s fortune.

Dickson acted as an attorney and advisor to appellee in all transactions involving either her separate account or the community account. He handled all business transactions and arranged for loans. Appellee relied upon him in connection with the execution of all legal instruments, and he tended to the details of delivering and depositing monies in the banks. Appellee relied upon Dickson to maintain the segregation of community and separate funds. Appellant and appellee treated and considered the “RPD” account as appellee’s separate property.

In his trial pleading appellant contended that community funds had been used for the benefit of appellee’s separate estate, and, as a result, the community estate should be reimbursed from appellee’s separate estate. Appellant also claimed that a large part of the wealth which he and Mrs. Dickson had always regarded as her separate property was, in fact, community property. Appellant contended further that ap-pellee’s separate property and the community property had been so commingled that segregation of those funds was impractical or impossible. Finally, appellant pleaded that Mrs. Dickson and her attorneys “conspired” to dissolve the marriage and to destroy his community interest in certain shares of stock and real estate.

The court’s charge contained eighteen special issues. The jury answered that Dickson undertook to establish, maintain, manage, and supervise a bookkeeping and accounting system for the parties during their marriage to keep segregated the parties’ separate and community estates, and that Mrs. Dickson relied upon him to do so. The parties relied upon and undertook to follow the legal opinion prepared by the tax attorney for the purpose of keeping segregated the parties’ separate and community estates. During their marriage the parties treated and considered the funds deposited from Reed Trust Number Two into the “RPD” bank account to be the separate property of Mrs. Dickson. The parties, throughout their marriage, treated and considered the funds deposited to the “FD” account from any and all sources to be the separate property of Fagan Dickson. The funds deposited from Reed Trusts Numbers One and Two into the “Mr. and Mrs.” account were treated as and considered to be the community property of the parties.

In response to several special issues the jury also answered that nineteen tracts of land, five notes receivable, shares of stock in seven corporations, and municipal bonds with the face value of $718,498 were purchased solely with separate funds or property of Mrs. Dickson.

The district court entered judgment dissolving the marriage and dividing the property. Because the district court’s division of the property mainly followed the parties’ books and records, appellee received the great bulk of the property, whereas appellant, by his estimate, received property in the approximate value of $863,133.03. The court departed in only one respect from the books and records and that departure concerned the division of common stock standing in appellant’s name in Dickson Properties, Inc., a family corporation.

Although appellant’s brief contains fourteen points of error, appellant does not attack any answer of the jury to the special issues. By two points of error appellant says that the district court erred in permitting Sander Shapiro and Frank Ikard, attorneys in the firm of Clark, Thomas, Winters and Shapiro, to testify because those attorneys had allegedly represented him at a time just previous to the divorce proceedings. The Clark firm was one firm of attorneys representing Mrs. Dickson during trial. Appellant claims that Shapiro and Ikard represented him, that they obtained confidential information from him in such representation, and that such information was disclosed by them contrary to appellant’s interests.

Shapiro and Ikard very likely represented Mrs. Dickson, not appellant. Moreover, it was probably necessary for appellee to call Shapiro and Ikard as witnesses to meet appellant’s effort to prove a conspiracy between those attorneys and appellee. However, we will overrule appellant’s points of error upon the ground that he waived any complaints he may have had as to the claimed impropriety of attorneys for appellee. There was waiver since Shapiro and Ikard were permitted to testify without objection, Hill v. Baylor, 23 Tex. 261 (1859); Barrera v. Duval County Ranch Company, 135 S.W.2d 518 (Tex.Civ.App.1939, writ ref’d), and since appellant waited until the trial was well underway, by some twenty-three days, before he filed his motions to disqualify those attorneys and to strike their testimony. Turner v. Turner, 385 S.W.2d 230 (Tex.1964).

Appellant complains by points of error three, six, eight, and nine that the district court erred in refusing to submit four requested special issues and three requested instructions. Appellant requested a great cloud of special issues and instructions, two hundred-seventeen in number, which fill one bulky volume of the transcript. Many of the requests were inappropriate and legally immaterial. For example, two requested issues inquired of the jury whether or not it “would be equitable” for property to be divided in a certain manner. Another requested issue inquired whether appellee’s treatment of appellant rendered further living together insupportable. This request was made even though the dissolution of the marriage was not even at issue. Another requested issue inquired as to the value of a filing cabinet. Other special issues inquired into the names of certain bank accounts of the parties.

Appellant’s four requested special issues and three requested instructions were enveloped in a flock of requests in a manner calculated to conceal and with the probable purpose of having them overlooked by the district court. See Federal Underwriters Exchange v. Walker, 134 S.W.2d 388, 395 (Tex.Civ.App.1939, writ dism’d). By so obscuring his requested issues and instructions, appellant waived whatever complaints he may have had concerning the refusal of the court to submit the requested issues and instructions. Tex.R.Civ.P. 274, Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.1971, writ ref’d n. r. e.); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.1974, writ ref’d n. r. e.). See also Monsanto Co. v. Milam, 494 S.W.2d 534 (Tex.1973), for a discussion of the purpose and requirements of Rule 274 in connection with objections to the charge.

By four points of error appellant attacks that part of the judgment awarding appel-lee the shares of stock of Dickson Properties, Inc., which stood in appellant’s name. The award of that stock to appellee is the judgment’s only departure from the character of property assigned by the parties’ books and records.

The issue underlying appellant’s points of error is whether the trial court abused its discretion in awarding the stock to appellee. With respect to the power of the divorce court to divide the property of the parties, Tex.Family Code Ann. § 3.63 (1975) provides that the court shall divide the property “. . . in a manner that the court deems just and right, having due regard for the rights of each party . . ” The well established rule is that the court is not required to divide the property equally between the parties. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). It is presumed that the divorce court properly exercised its discretion in the division of the property, and its judgment will not be reversed unless there is a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.1974).

The basis for appellant’s asserted ownership of the stock is as follows. Appel-lee purchased four tracts of land, about three hundred forty-two acres, near Austin which the parties named “Faro Farms.” Appellee took the deeds in her name and those deeds contained recitations that the respective tracts were appellee’s separate property. Appellant testified that appellee paid for the land with her separate funds and that he considered the land to be her separate property.

In 1958, appellant asked appellee if she would allow him to have half-ownership in Faro Farms. Appellee testified that on that date appellant was in a “very emotional state” and was “pressing” her “to divide” the land. Appellee finally agreed to do so if appellant would give her a note for one-half of the 1952 purchase price of the lands, and if appellant agreed in writing to return his interest in Faro Farms to her in the event they ever divorced, and if he agreed to devise his interest in the land in equal shares to his son and to appellee’s daughters. Appellant gave appellee a note for $78,000 and prepared a partition instrument reciting that the parties were partitioning community property. It is of some moment that after the transaction, but still in 1958, appellant filed a financial statement showing that his interest alone in Faro Farms was worth $254,353.13.

The 1958 Faro Farms transaction was the origin of appellant’s asserted ownership of stock in Dickson Properties, Inc., inasmuch as the corporate records show that appellant was issued 4,487 shares of stock by reason of his transfer to the corporation of the one-half interest in Faro Farms.

Though not important to the resolution of the problem, it should be noted that appellant repudiated one of the “conditions” upon which the 1958 transfer was grounded. In 1971, when appellee was critically ill, appellant drafted another will by the apparent terms of which his son would have taken his one-half interest in Faro Farms to the exclusion of the Reed girls.

In any event, and even if Dickson’s new will did not violate appellee’s supposed “condition,” the judgment awarding the corporate stock to Mrs. Dickson was “just and right” in view of the circumstances. One circumstance, other than those surrounding the original transfer of the interest in Faro Farms to appellant, is that much of appellee’s separate' property was consumed in supporting the family. This is so since Dickson stopped short his practice of law soon after his marriage to appellee. Another such circumstance is that the community estate profited greatly from transactions funded entirely by appellee’s separate property, all of which inured ultimately to appellant’s benefit. It is a fair conclusion, we think, that nearly all of the community estate, as well as appellant’s so-called “separate” property had its origin in appellee’s separate property or “special” community property.

Appellant complains by two points of error that the court erred in awarding appel-lee certain property since that property had been purchased with commingled funds.

For nearly twenty-seven years Dickson was the gentleman on whom appellee built an absolute trust. He acted as her attorney and advisor in all transactions involving either her separate account or the community account. He carried on the business transactions and arranged for loans. Ap-pellee relied upon Dickson in connection with the execution of any and all legal instruments and he handled the details of delivering and depositing money in banks. Appellee also depended upon Dickson to maintain the segregation of community and separate funds. Whatever commingling occurred from the placing of borrowed funds into the “RPD” account and from the deposition into that account of unidentified “oil payments” was strictly the result of Dickson’s doing.

In the exercise of the management and control over appellee’s separate property and the community estate, Dickson acted as a trustee for the benefit of appellee. It is axiomatic that a trustee cannot benefit from his own error or wrongdoing. Appellant’s points of error will be overruled because the commingling, if any, of the “RPD” account was done by appellant, as trustee or otherwise, and he should not, and will not, be permitted to benefit therefrom. Giesler v. Giesler, 309 S.W.2d 949 (Tex.Civ.App.1958, no writ), W. deFuniak & M. Vaughn, Principles of Community Property, 125 (2nd Ed. 1971).

The judgment is affirmed.

Affirmed.

O’QUINN, J., not participating.


author: REED, Chief Justice.

text:
    W. Thomas McELHINNEY, Appellant, v. WILLIAM BOOTH MEMORIAL HOSPITAL et al., Appellees.
    Supreme Court of Kentucky.
    July 30, 1976.
    Rehearing Denied Jan. 14, 1977.
    James L. Cobb, Jr., Cobb, Combs, Beasley & Oldfield, Covington, William E. Santen, Cincinnati, Ohio, for appellant.
    Donald L. Stepner, Adams, Brooking, Stepner & Mitchell, Covington, S. Arthur Spiegel and James Q. Doran, Cohen, Todd, Kite & Spiegel, Cincinnati, Ohio, for appel-lees.
   REED, Chief Justice.

Appellant W. Thomas McElhinney, a surgeon, sued appellees, the governing authorities of Booth Hospital, because they revoked his staff privileges to admit patients to Booth and to use its facilities in his practice of medicine. The circuit court’s judgment from which McElhinney appeals dissolved injunctive relief pendente lite that it had previously granted him and also adjudged that Booth’s governing authorities had not acted illegally in terminating appellant’s right to practice in the hospital. We granted temporary injunctive relief to appellant pending disposition of his appeal on its merits. Having concluded that the record establishes the appellant did not violate the hospital’s by-laws delineating standards for suspension or termination of physician-staff privileges, we reverse the judgment of the circuit court with direction that appellant’s staff privileges be reinstated.

At the direction of the circuit court an evidentiary hearing was conducted by the medical staff of the hospital where appellant was afforded the right to produce evidence and to cross-examine adverse witnesses. Despite appellant’s complaints of alleged irregularities in the voting on a recommendation to the Board of Trustees of the hospital, of rulings on the admissibility of evidence, and of the qualifications of medical staff members to participate in the determination of the recommendation, we are satisfied that the hearing and the medical staff vote were sufficiently fair in the procedural aspect that we could not say he was denied procedural due process, assuming of course, as did the parties, that he was entitled to a trial-type hearing. The Board of Trustees of the hospital reviewed a transcript of the medical staff hearing and decided to accept the staff recommendation to revoke appellant’s staff privileges. Appellant does not question either the qualifications or the authority of the trustees to act.

We have reviewed the evidence on several occasions and each time we are more convinced than before that the appellant is revealed as an especially competent, dedicated and busy surgeon whose prime concern is the welfare of his patients and the improvement of hospital conditions.

Without unduly detailing the evidence it is sufficient to say that there is not a scintilla of evidence of negligence or incompetence in appellant’s care of patients. Nor is he accused of any conduct in his personal or professional life that could be regarded in any manner as detrimental, to his patients. He stands accused of being unreasonably critical of the professional performance of some personnel with whom he works at Booth, and of a few inconsequential infractions of regulations which the evidence shows are more honored in the breach than in the observance by most other practicing surgeons. In no event did the few claimed infractions affect patient care.

We glean from the evidence that appellant probably incurred the wrath of the hospital administration when he insisted that an investigation be made of the complaint of one of his surgical patients that a supervisory nurse had made lesbian overtures to her. It seems that appellant also complained about the dust levels in the operating room. He entered a collision course with a physician named Richfield, who was the chief of pathology at the hospital. Appellant complained that Richfield was too frequently unavailable to read frozen section slides and left too much responsibility to assistants who were not pathologists. Appellant was dissatisfied with the performance of the X-ray department. He entered criticisms of professional performance and hospital procedure upon the records. Appellant was doubtless somewhat abrasive to others in his insistence upon what he conceived to be required standards of care.

Although we have held that the informal hearing procedures used were acceptable in this context, the problem is whether the decision reached was arbitrary. A corollary question is whether judicial review is available. In our view, the circuit court improperly concluded that Booth was a private hospital by using the doctrine of judicial notice rather than by permitting evidence to be taken on the question; nevertheless, we will accept, for purposes of this decision only, that Booth is a private hospital.

In Burkhart v. Community Medical Center, Ky., 432 S.W.2d 433 (1968), we cast doubt upon the immutability of the holding stated previously in Hughes v. Good Samaritan Hospital, 289 Ky. 123, 158 S.W.2d 159 (1942). In Hughes the holding was that the action of a private hospital in refusing or revoking staff membership will not be disturbed by the courts. The older cases which Hughes followed regarded staff privileges of a physician to practice in a private hospital to be a privilege rather than a right. This distinction has been increasingly under fire in many areas of the developing law. A different rule generally prevails in the instance of a public hospital. For an extensive discussion of the problem see Silver v. Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564 (1972). It is unnecessary to extend the discussion concerning the extent of judicial review that should be available where the “privilege” of staff membership in a private hospital is revoked as contrasted with where the “right” to staff membership in a public hospital is revoked. Whether the hospital is public or private, it must act in accordance with its charter and by-laws.

In this case, the hospital enacted specific regulations governing the suspension or termination of staff privileges. They provided substantially: Suspension: (1) gross professional incompetence or dereliction, (2) gross unethical or moral misconduct, (3) violations of hospital regulations and policies to such an extent that disciplinary action is deemed advisable. Termination: “Violation of sufficient gravity to warrant such action.” We deal here not with suspension but termination. The express standards, vague though they be, do not condemn criticisms relating to treatment of patients or hospital practice nor do they proscribe inability to get along with some doctors or hospital personnel. We express no opinion as to the validity of a reasonably definite standard undertaking to proscribe and make a cause of termination inability to work in harmony with other hospital personnel.

“The fact that a doctor, due to criticisms made by him relating to treatment of patients or hospital practices, has been ‘unable to get along with’ some doctors or hospital personnel is not a sufficient ground to exclude him from the use of hospitals. Obviously physicians will not always agree as to the proper treatment for a patient or as to the proper practices in a hospital. The goal of providing high standards of medical care requires that physicians be permitted to assert their views when they feel that treatment of patients is improper or that negligent hospital practices are being followed. Considerations of harmony in the hospital must give way where the welfare of patients is involved, and a physician by making his objections known, whether or not tactfully done, should not be required to risk his right to practice medicine.

“Moreover, a hospital district should not be permitted to adopt standards for the exclusion of doctors from the use of its hospital which are so vague and ambiguous as to provide a substantial danger of arbitrary discrimination in their application.” Rosner v. Eden Township Hospital District, 58 Cal.2d 592, 25 Cal.Rptr. 551, 554, 375 P.2d 431, 434 (1962). This quoted language of the Supreme Court of California, though applicable to public hospitals, is nevertheless persuasive in the instant case where a private hospital has undertaken to revoke staff privileges contrary to its express standards because the doctor was critical of the standards of patient care.

Therefore we need not further explore the various approaches taken by other courts in considering the general problem. See Note “Hospital Staff Privileges: The Need For Legislation,” 17 Stan.L.Rev. 900 (1965), and “The Physicians Right to Hospital Staff Membership: The Public-Private Dichotomy,” 1966 Wash.U.L.Q. 485. We hold that a private hospital, regardless of the breadth of discretion that may be extended to it, cannot revoke the staff privileges of a physician in the absence of a sufficiently definite standard proscribing the conduct for which revocation is adjudged.

The judgment is reversed with direction to enter a new judgment reinstating appellant to his staff privileges at Booth Hospital.

All concur except LUKOWSKY, J., not sitting.


author: LUKOWSKY, Justice.

text:
    Randy J. KENNEDY and Richard McGreal, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 17, 1976.
    Rehearing Denied Jan. 14, 1977.
    Jack Emory Farley, Public Defender, David E. Murrell, Deputy Public Defender, Frankfort, for appellants.
    Ed W. Hancock, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the McCracken Circuit Court which adjudged the appellants guilty of robbery in the first degree, KRS 515.020(1)(b), and fixed their punishment at the minimum ten-year term of imprisonment. We affirm.

On the afternoon of January 31,1975 two young men entered Pete Leasor’s grocery in rural McCracken County and purchased some soft drinks and candy bars. They lingered in the store until Mrs. Leasor was alone. One of the young men approached Mrs. Leasor as she was opening the cash register, took a pistol from his pocket and held it on Mrs. Leasor while the other removed approximately $110.00 from the cash drawer. The young man who had taken the money from the cash drawer then produced a can of “mace” and sprayed it into Mrs. Leasor’s face. The young men left the store, entered their automobile and fled the scene.

Mrs. Leasor rushed after the fleeing men and observed, with her chemically-blurred vision, that they drove away in a green Volkswagen with a white license plate. These facts were reported to the police without undue delay.

Shortly thereafter two local police officers observed the appellant, Kennedy, age 18 and the appellant, McGreal, age 22, pull into a gas station in a green Volkswagen with white license plates. At this time the officers had full knowledge of the facts of the Leasor robbery from a radio bulletin. They apprehended the appellants, placed them under arrest for the robbery and warned them of their “Miranda” rights.

Shortly thereafter the appellants gave written consent for the officers to search the Volkswagen and their home. This was followed by each of the appellants confessing in writing to the commission of the offense and giving statements detailing the circumstances and reasons for the crime.

These statements disclosed that the pistol used in the crime had been concealed at the gas station immediately prior to the arrest. When it was recovered, it was found to be unloaded and to have a broken firing pin. The search of the Volkswagen produced a can of “mace”. The search of their home produced a coat resembling one worn by one of the robbers.

The appellants assign three errors:

I. An unloaded pistol with a broken firing pin is not capable of firing a shot and, consequently, does not constitute a deadly weapon, the use of which is necessary to support a conviction of robbery in the first degree in this ease.

II. The can of “mace” and the coat were improperly admitted into evidence because the consent of the appellants was given after they were in custody and, consequently, could not have been voluntary.

III.The confessions of the appellants were improperly admitted into evidence because the trial court failed to hold an in chambers hearing to determine their volun-tariness after counsel for the appellants objected to the introduction of the confessions on the grounds that they were contradictory and that he had not known of them prior to trial.

I.

Prior to the adoption of the new penal code in 1974 it was clearly the law of this Commonwealth that any object could be a deadly weapon if it was intended by its user to convince a victim that it was deadly and if the victim was in fact convinced. Merritt v. Commonwealth, Ky., 386 S.W.2d 727 (1965). The position of the appellants is that the penal code definition of a deadly weapon, KRS 500.080(4), includes only those firearms . from which a shot, readily capable of producing death or other serious physical injury, may be discharged . and that this statute supercedes and overrules Merritt v. Commonwealth, supra.

If there were no contrary indications of legislative intent the position of the appellants would be well taken. However, KRS 500.100 provides that the commentary accompanying the penal code may be used as an aid in construing the provisions of the code.

The following note appears in the statutes immediately preceding the code:

“COMMENTARY (1974)
Explanatory background notes, designated COMMENTARY (1974), follow Kentucky Penal Code sections in this annotated edition. The notes were prepared AFTER enactment of the Penal Code (1974 H 232) and are NOT “Commentary accompanying this Code” as referred to in KRS 500.100.
These unofficial notes are based upon Commentary accompanying the November 1971 Final Draft of the Kentucky Penal Code . . . published by the Kentucky Crime Commission and the Kentucky Legislative Research Commission. Appreciation is expressed to the Kentucky Department of Justice and the Legislative Research Commission for their assistance and cooperation in rewriting the original commentary to conform to the Penal Code as finally amended and enacted.”

It is apparent that KRS 515.020(l)(b) traces its ancestry to the November 1971 final draft of the Kentucky Penal Code published by the Kentucky Crime Commission and Kentucky Legislative Research Commission, which was accompanied by a commentary. When we compare KRS 515.-020(l)(b) with § 1605(l)(b) of the proposed code we find that the language is identical.

The commentary to this section of the proposed code provided:

“Statutory Robbery Offenses: The most significant statutory robbery offense under existing law is entitled ‘armed robbery’ and defined by KRS 433.140. Its relationship to common law robbery is identical to the relationship of Section 1605 to Section 1606. Conviction is appropriate only upon a showing of common law robbery plus a factor of aggravation. Only in terms of the factors which serve to aggravate robbery does KRS 433.140 significantly differ from Section 1605. The aggravating factor provided by Subsection (l)(a) is an addition to existing law. The ones that are provided by Subsection (l)(b) and (c) serve only to clarify existing principles.
Despite the fact that the existing armed robbery statute does not distinguish between a ‘deadly weapon’ and a ‘dangerous instrument,’ this distinction has been made by the Court of Appeals. See Napier v. Commonwealth, 356 S.W.2d 755 (Ky.1962); Murphy v. Commonwealth [255 Ky. 676] 75 S.W.2d 341 (1934). It was put this way by the Court:
The established rule on the subject is that, where the weapon is of such character as to admit of but one conclusion in that respect, the question whether or not it is deadly ... is one of law; but, where the weapon employed is such that its deadly character depends upon the manner and circumstances of its use, the question is one of fact for the jury. Owens v. Commonwealth [187 Ky. 207] 218 S.W. 719, 720 (1920).
This notion is used in Section 1605: If a robber is armed with a ‘deadly weapon,’ i. e., one having no usefulness other than as a weapon, he is a robber in the first degree; if he is armed with a ‘dangerous instrument,’ i. e., an object having legitimate uses, he is a robber in the first degree only if he uses or threatens to use the instrument. This distinction makes no substantive change in the existing law.
In describing what constitutes a ‘deadly weapon,’ the Court of Appeals recently ruled that any object can be a deadly weapon if intended by its user to convince a victim that it is deadly and if the victim is in fact convinced. Merritt v. Commonwealth, 386 S.W.2d 727 (Ky.1965). In that case, the defendant was convicted of armed robbery despite the fact that the ‘weapon’ he used may have been a toy pistol. There is no intention to change this decision through the provisions of this chapter."

At the time the 1974 legislature enacted the penal code it had before it the commentary which explained the scope of this section. In the absence of the legislature having made any change in the language of the section we must conclusively presume that it assigned to it the meaning and effect attributed to the language by the 1971 commentary. Merritt v. Commonwealth, supra, is as viable now as it was prior to the adoption of the code.

II.

The consent to search forms executed by the appellants are not involuntary and, consequently, invalid solely because they were executed after the appellants had been taken into custody. Chambers v. Ma-roney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Bradley v. Commonwealth, Ky., 439 S.W.2d 61 (1969). This is particularly true where, as here, the appellants received “Miranda” warnings prior to execution of the forms. Gorman v. U. S., 380 F.2d 158 (1st Cir. 1967).

III.

The failure of the trial court to hold an in chambers hearing to determine the voluntariness of the confessions as required by KRS 422.110(2) is not properly preserved for appellate review. The appellants raised no question before the trial court as to the voluntary nature of these statements. Their objections were limited to their inconsistency and the lack of knowledge on the part of counsel for the appellants of their existence. The appellants will not be permitted to feed one can of worms to the trial judge and another to the appellate court. Jenkins v. Commonwealth, Ky., 413 S.W.2d 624 (1966); Harris v. Commonwealth, 301 Ky. 818, 193 S.W.2d 466 (1946).

The judgment is affirmed.

All concur.

      . “515.020 Robbery in the first degree.—
      (1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he: (b) Is armed with a deadly weapon . . . ”


author: PALMORE, Justice.

text:
    Norman HAYCRAFT, Appellant, v. CORHART REFRACTORIES CO., etc., et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 1, 1976.
    Rehearing Denied Jan. 14, 1977.

      W. David Klingman, Frockt & Klingman, Louisville, for appellant.
    Robert C. Ewald, Wyatt, Grafton & Sloss, Louisville, for appellee Corhart Refractories Co.
    ■ Louis G. Mayer, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for ap-pellee Kentucky Dept, of Labor and Custodian of the Special Fund.
   PALMORE, Justice.

Norman Haycraft, an employe of the ap-pellee Corhart Refractories Company, appeals from a judgment affirming an order of the Workmen’s Compensation Board dismissing his claim for compensation based on an injury or injuries to his back.

The case is of unusual importance for the reason that it requires a determination of what was meant by the 1972 legislative definition of the word “injury,” KRS 342.-620(1).

Prior to the 1972 act KRS 342.005 limited compensation coverage to disabilities resulting from “traumatic personal injury sustained by the employe by accident” or from occupational diseases. The words “traumatic,” “injury,” and “accident,” not having been statutorily defined, provided a judicial battlefield for years on end until at last it was settled that whenever “the physical effort of a man’s work precipitates his internal breakdown resulting in disablement,” he has sustained a traumatic injury by accident within the meaning of the compensation statute. Whereas, however, Terry v. Associated Stone Co., Ky., 334 S.W.2d 926, 930 (1960), had spoken in terms of “a specifically identified effort,” Hudson v. Owens, Ky., 439 S.W.2d 565, 569 (1969), recognized that causation need not be localized in a single event. It is enough that the disability be fairly traceable, wholly or in part, to the work.

Against this background of case-law (assuming that legislators pay attention to such matters) the 1972 General Assembly at its regular session repealed KRS 342.005 and replaced it with superseding provisions including KRS 342.620(1), which defined the word “injury” as follows:

“ ‘Injury’ means any work related harmful change in the human organism but does not include any communicable disease unless the risk of contracting such disease is increased by the nature of the employment. ‘Injury’ when used generally . shall include an occupational disease.”

Though we are not in this case concerned with a communicable disease, we think that the statutory exclusion of such a disease unless the nature of the work has increased the risk of contracting it reflects a definite legislative policy to the effect that although a particular affliction is of common occurrence among the population in general, it may nevertheless be found work-connected, hence compensable, when the nature of the victim’s occupation has increased the victim’s susceptibility to it.

Prior to 1972 342.120, the apportionment statute, provided among other things that if a dormant nondisabling “disease condition” was aggravated or aroused into an active disability through the occurrence of a compensable injury, liability would be apportioned between the employer and the Special Fund. KRS 342.120(l)(b). Whether a pre-existing infirmity was a “disease” and whether it was “active” or “dormant” were important questions, because (1) if it was not a disease, and had not become disabling, the employer was liable for the entire disability triggered by the injury, and (2) if it had become disabling prior to the accident (that is, if it was an “active” disability), then regardless of whether it was or was not a “disease” condition the employer was liable only for the portion of the disability that would have resulted from the accidental injury in the absence of the pre-existing condition. Under this state of the law it was held that progressive physical infirmities such as emphysema, chronic bronchitis, and degenerative disc conditions were not “disease” conditions even though they might have been so classified in medical terminology. See, for example, Carol Coal Company v. Harris, Ky., 477 S.W.2d 783, 784 (1972); Young v. City Bus Company, Ky., 450 S.W.2d 510, 514 (1970); and Yocom v. Fayard, Ky., 515 S.W.2d 614, 615 (1974).

By the same act in which the word “injury” was defined, the 1972 General Assembly re-worded KRS 342.120(1)(b) to read, “dormant disabling disease or condi tion in lieu of “dormant disabling disease condition ” (emphasis added), thus shifting liability from the employer to the Special Fund for that portion of the workman’s disability ascribable to a pre-existing non-disabling condition that was not a “disease.” See discussion in Yocom v. Gibbs, Ky., 525 S.W.2d 744 (1975).

Throughout this whole process of interpretation and revision the status of disabilities resulting from spinal disc conditions has been a nagging problem not only to the victims of the disorder but to this court and, presumably, to the Workmen’s Compensation Board. Unless the disability was precipitated or “aroused” by some identifiable or noticeable incident that occurred on the job, as, for example, in Rowe v. Semet-Solvay Division Allied Chemical & Dye Corp., Ky., 268 S.W.2d 416 (1954), it simply was not compensable, because it was held to have resulted from a normal degenerative process rather than the work. We think now, however, especially in view of the 1972 legislation noted above, that this view is unrealistic and unnecessarily restrictive.

It has been observed many times that arthritic changes in the spine are a part of the normal aging process, or “wear and tear,” which is common to the general public regardless of one’s individual occupation. Nonetheless, just as constant exposure to the dust and dampness of underground coal mining is certain to increase the risk of emphysema and chronic bronchitis, so are the rigors of strenuous manual labor bound to hasten toward its breaking point the debilitating process of a degenerative spinal disc. We are therefore of the opinion that if it be found, or should be found, that the nature and duration of the work probably aggravated a degenerative disc condition to the degree that it culminated in an active physical impairment sooner than would have been the ease had the work been less strenuous, to that extent the pre-existing condition is itself an injury as now defined in KRS 342.620(1), and that compensation for a disability to which it has contributed should be apportioned between the employer and the Special Fund as follows: (1) to the Special Fund, that portion of the disability that probably would exist regardless of the work; (2) to the employer, the remainder, being the percentage attributable to the work. With this criterion in mind we shall proceed to examine the facts of this particular case.

The claimant’s application for workmen’s compensation benefits, filed on June 5,1974, gives the date of injury as April 11, 1974. At that time he was almost 44 years old and had worked continuously for the defendant employer for 17 years. All of the jobs to which he had been assigned in the course of this employment entailed hard physical labor, such as using a sledgehammer and lifting and shifting heavy objects and materials. He had experienced no discomfort in his back until September 14, 1959, on which date he had a sudden severe pain in the back while swinging a sledgehammer. The incident was reported to the employer, and after examination by its physician, Dr. L. H. Segerberg, the claimant was admitted to the hospital with a diagnosis of low back sprain and possible disc injury. He was off work for about four weeks and under the care of a physician for three or four months. A back brace was prescribed, which he wore regularly for “a right smart while” and has worn intermittently ever since. He did not file a claim for or receive workmen’s compensation for this injury but received sick-pay from the employer.

Following the 1959 injury the claimant says he never got back to feeling “100% normal” and two or three times a year suffered “flare-ups that would get me down in the back.” He had pain in the back while he worked which, as he described it, “would draw me one-sided,” and wore his brace “on and off.” There have been two separate incidents not related to his work in which his back was injured or re-injured. On one of these occasions he slipped on some steps at home and was X-rayed by Drs. Fischer and Zoeller, but he does not recall whether he lost any work at that time. On the other such occasion, in September of 1964, his back was hurt when an automobile in which he was riding turned over, following which he was treated by Drs. Fischer, Leatherman and Zoeller and remained under their care for “a month or two,” was hospitalized for six days, and was off work for about one month. There was no surgery.

In March of 1972, while engaged in turning over heavy slabs of graphite, the claimant got into a truck or tractor to move some of the material, and as he dismounted “it caught me and I went down to my knees.” The employer sent him to the hospital and he was off work for two days, after which he was put on light duty for about three weeks, meanwhile remaining under the care of his regular physician, Dr. Nathan Zimmerman, a general practitioner. He then resumed his customary duties involving hard manual labor.

On April 11, 1974, the claimant’s mother was in Sts. Mary and Elizabeth Hospital in serious condition and he took time off in order to stay with her for the day. He spent most of the day sitting in a chair. When he was relieved by his wife that afternoon or evening he told her that he felt bad and would go on home. Upon reaching home he says that his back and left leg were giving him so much pain that he could hardly get out of the car. On the next morning his wife took him to St. Joseph’s Hospital and reported the circumstances to his supervisor at work. At this point Dr. Zimmerman called in Drs. Jelsma and Ross, neurological surgeons, who for the first time performed a lumbar myelo-gram in order to ascertain definitely the condition of the claimant’s spine.

The myelogram disclosed a disc-type defect on the left side of L5 and a smaller defect on the right side of LA. On April 23, 1974, Dr. Jelsma surgically removed an extruded disc with a sequestrated fragment at the left side of the L5 interspace and removed some spurring from the L5-S1 space. The claimant was eventually released for work on August 26, 1974, and at the time of his testimony in this proceeding was still on his regular job with the same employer, though he said that he has “a lot of pain in my hip and down my leg,” cannot stoop and bend as well as before, nor stay on his feet as long, and cannot lift as much.

The medical evidence in the record consists of a report by Dr. Armand K. Fischer, a specialist appointed pursuant to KRS 342.121 to examine the claimant after the Special Fund had been made a party, and the depositions of Dr. Nathan Zimmerman and Dr. Lawrence F. Jelsma. We summarize their conclusions with reference to the back condition as follows:

Dr. Fischer. Examination, including Xrays, made on August 2, 1974. Diagnosis: Chronic low back sprain with multiple degenerated discs. “It is my opinion this patient had a diseased condition of his spine prior to 4/11/74; namely, degenerated discs in the lower spine and arthritic changes in the lower spine. It would be my opinion that he had permanent disability in his back prior to 4/11/74, because he had intermittent flare-ups of his back pain and had to wear his brace and all of his back symptoms began in 1959. It would be my opinion that he sustained disability as a result of the accident directly on 4/11/74. It would be my opinion that he aggravated an already diseased condition of the lower lumbar spine; namely, degenerated discs at L3, 4 and 5 into further disability reality as a result of the accident of 4/11/74.”

Dr. Fischer concluded that the claimant now has a 35% partial permanent disability, consisting of 10% from injuries to his back prior to April 11, 1974, 5% from an old nonwork-connected arm fracture, 10% from the incident or “accident” of April 11,1974, and 10% from aggravation of the pre-exist-ing back condition by the April 11, 1974, occurrence.

Dr. Zimmerman. On April 12, 1974, the claimant reported that while visiting a member of his family in the hospital “he had an acute onset of back pain without at that time having done anything except just simply sitting there. He had not arisen, he had not changed or altered his attitude in terms of position, and it followed from there that the pain became severe,” etc. Subsequent evaluation and treatment revealed disc defects at L4 on the right and L5 on the left. The previous injuries in 1959 and 1972 had been referable only to the right side. Hence the L5 injury must have occurred more recently. Whether the claimant actually had a disc injury in 1959 cannot be definitely ascertained, because no myelography had been done until 1974. It was Dr. Zimmerman’s estimate that he was disabled to the extent of 10% from the 1972 or 1959 injuries and an additional 20% from the L5 or left-side injury manifested in 1974.

With respect to the causal relationship between the claimant’s condition and his work, Dr. Zimmerman stated that in his opinion the work did have something to do with the 1974 incident: “discs often protrude and occur after the injury occurs . he does do heavy work. Certainly sitting in a position in a hospital bed [sic] doing absolutely zilch or nothing should not have created the disc injury he recently acquired. On the basis of the fact that he has stated to me that he has done no other heavy work, had done no other injury to himself, the left side occurred for the first time on that occasion, and I am only assuming and I am agreeable to assuming that his heavy work did lead eventually to the rupture of the disc on his left side.”

Dr. Jelsma. First saw claimant on April 15,1974. Case history heretofore recited in this opinion. Estimate of permanent partial disability: 15% total, 10% being attributable to “the disc rupture and extruded fragment with its subsequent surgical removal at L5 on the left” and 5% attributable to the pre-existing condition. It was Dr. Jelsma’s opinion that the claimant’s heavy work over the years was an aggravating factor in causing the 1974 incident: “I think he had an underlying disc disease, and I think that he had a degenerated disc, and I think this is the sort of thing that is aggravated by heavy work and that at the particular time he stood up or whatever he was doing was when the disc happened to rupture or actually extruded from this diseased disc space that had been chronically injured over a period of time” Question: “I guess what I am really driving at is that you really can’t attribute his problems to one specific instance, but rather it is a condition that occurred over a long period of time of heavy work, of a chronic back problem that finally brought forth into the final problem he had on April 15th [sic], but it was the result of many years of problems, a wear and tear on his back?” Answer: “Yes . . . . Probably weeks to months.”

Dr. Jelsma was of the opinion that the 5% disability pre-existing the April 11, 1974, incident was “active” in that “he had a problem in his back that permitted a small disability and was a source or reason for his complaints that he would have had of intermittent back pain.” In short, he explained that before April 11, 1974, the L4 condition was slightly disabling but the L5 condition was not disabling.

On the basis of the evidence it seems obvious to us that this claimant has undergone a “harmful change in the human organism” that is to some degree work-related. The board’s conclusion, however, was as follows:

“The Board is aware of the definition of ‘injury as is defined in KRS 342.620(1), and agrees that the term is broader than it formerly was, however, we do not opine that all degenerative diseases or conditions are compensable. The plaintiff in this case has an extensive history of back problems and it is difficult for us . . .to connect his problems with his work. For these reasons we are compelled to dismiss the claim.”

We agree that not all degenerative diseases or conditions are compensable. We agree also that it is difficult to assess the degree of relationship between this claimant’s work and his disability. But difficult or not, that such a relationship does exist can hardly be avoided. Not only is it beyond question that the nature of the work was such that it probably aggravated and accelerated the degenerative disc condition, but also there have been two incidents of actual injury to the man’s back arising out of and in the course of his employment.

To the extent that the claimant was actively disabled prior to April 11,1974, under KRS 342.120 he cannot be compensated. For the remainder of his disability attributable to the present condition of his back he is entitled to compensation to be divided between the employer and the Special Fund, the employer’s portion to be assigned not on the basis of how much of it would have occurred in the absence of the degenerative disc condition, but on the basis of how much the work has contributed to it;

We find no merit in the contention that the employer did not receive timely notice of the injury.

The judgment is reversed with directions to remand the proceeding to the Workmen’s Compensation Board for reconsideration in accordance with this opinion.

All concur excepting STEPHENSON, J., who dissents.

      . Ch. 78, § 2, Acts of 1972, eff. Jan. 1, 1973.

      . See, for example, discussions in Terry v. Associated Stone Co., Ky., 334 S.W.2d 926 (1960); Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961); and Hudson v. Owens, Ky., 439 S.W.2d 565 (1969).

      . Hudson v. Owens, Ky., 439 S.W.2d 565, 568 (1969).

      . This same policy is reflected in the statutory provisions covering pneumoconiosis. See, in particular, the presumption created by KRS 342.316(7).

      . Similarly, the term “disease” does not include congenital conditions such as spondylosisthe-sis. Cf. Appalachian Regional Hospitals, Inc., v. Brown, Ky., 463 S.W.2d 323, 325-326 (1971).

      . Ch. 78, § 17, Acts of 1972, eff. Jan. 1, 1973.

      . This, of course, was a work-connected “injury” under any state of the law heretofore prevailing. Cf. Rowe v. Semet-Solvay Division Allied Chemical & Dye Corp., Ky., 268 S.W.2d 416 (1954); Wood-Mosaic Co. v. Shumate, 305 Ky. 368, 204 S.W.2d 331 (1947).

      . The case history recited in Dr. Fischer’s report says that after recovering from the 1972 injury the patient “continued in his regular job until 4/11/74 when he had another onset of back pain .’’It does not mention any event that would be characterized as an “accident” in the ordinary lay sense of the word.

      . Though he did not record it in his notes, Dr. Jelsma’s version of the case history differed somewhat from the testimony of Drs. Fischer and Zimmerman and the claimant in that his recollection was that on April 11, 1974, the claimant “was sitting in a hospital chair at his mother’s bedside when he had noted an onset of left leg pain or had just gotten up from spending the night in a chair . . . As I mentioned, I don’t have that written down . he spent the night with her, and he happened to stand up or did something after this prolonged time in a chair at her bedside, I believe, and he noted left leg pain.”

      . Though KRS 342.120(3) provides that when a previously-existing condition that is nondis-abling becomes disabling through the agency of a work-related injury the employer shall be liable only for such portion (if any) of the disability as would have resulted from the injury in the absence of the pre-existing condition, we construe that provision as applicable only to a pre-existing condition that is not attributable in any degree to the work. What we hold here is that a dormant pre-existing condition, or pre-disposition to injury, which itself is work-related, falls in a different category.


author: PER CURIAM.

text:
    Richard Earl PILON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 15, 1976.
    Rehearing Denied Jan. 14, 1977.

      Terrence R. Fitzgerald, Deputy Public Defender, Thomas R. Thomas, Asst. Dist. Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Richard Earl Pilón appeals from a judgment entered on a jury verdict finding him guilty of manslaughter in the first degree and fixing his punishment at ten years’ imprisonment.

Marvin Cole Marcum, the seventeen-month-old son of Nola Marcum (Pilón), died at Norton-Children’s Hospital at 6:50 p. m. on May 8, 1975. He had been brutally and severely beaten. Dr. Stuart Wolf son, a pathologist, stated that Marvin’s death was caused by a loss of blood due to a laceration of the spleen. The doctor testified that a person sustaining an injury of this type could not live for more than seven or eight hours after the time of injury. The doctor observed multiple bruises over the body of Marvin.

A composite of the evidence of Richard Earl Pilón and Nola Marcum (Pilón) is as follows: Richard, Nola, Marvin, and his three-year-old sister, Stacy, lived together in a mobile home in Jefferson County. On May 7, 1975, at about 10 a. m., Pilón, Nola, and the children went fishing after which they all went to a drive-in movie. The children went to sleep in the back of the car during the movie, around 10 p. m. The entire party returned to the trailer at 4 a. m. on May 8 and immediately went to bed. Pilón and Nola got up around noon. The children were already up and playing in their room. Pilón made breakfast while Nola fixed her uniform so she could go to work. They were all together until Pilón, accompanied by Marvin and Stacy, took Nola to work at 2:30 p. m. From there Pilón, accompanied by the children, went to the office of Dr. Kincaid who had performed surgery on Pilon’s hand. They were at the doctor’s office from around 3:45 p. m. to 5 p. m.

Marvin had been slightly ill most of the day with flu or a cold, but his ailment appeared to become more pronounced with the passage of time. Dr. Kincaid obsérved that the child was acutely ill and recommended that Pilón take him to a hospital. Pilón proceeded from the doctor’s office to the house of a friend, Richard Childers, and asked him to look at the ehild. Childers testified that the child was as “pale as a ghost.” Pilón and the children then returned to the trailer, and Marvin was put to bed. By 6 p. m. Marvin’s condition had become critical. Pilón called Nola who met him at 6:30 p. m., and they proceeded to the hospital only to discover that Marvin had died before they could get medical assistance.

Pilón and Nola, in their testimony, attempted to explain the presence of the bruises on Marvin’s body by showing that the child was overly clumsy for his age and prone to falling down and bruising easily. The witness Childers who had seen the child at approximately 5 p. m. on the day of his death testified that he observed no bruises on the body other than those on the head. Nola testified that on the way to the hospital she had raised the top of Marvin’s pajamas and placed her hand on his stomach and that at the time she observed no bruises on his stomach or chest. Pilón, fortuitously, observed this same condition by looking through the rear-view mirror as he rushed toward the hospital.

Nola testified that she had not struck Marvin or at any time abused him. She was with him until approximately 2:30 p. m. of that day. Pilón testified that he had never touched the child. His evidence discloses, however, one conclusive fact: he was with the child either with the mother or alone during the entire day of May 8, 1975. Pilón asserts upon appeal that the court should have granted him a directed verdict, as the evidence against him was totally insufficient to support his conviction. This court is well aware of the rule as set out in Marcum v. Commonwealth, Ky., 496 S.W.2d 346 (1973), but has concluded that Marcum would not be controlling in this case because the evidence here clearly demonstrates that Pilón, during all of the time within which Marvin could have sustained his fatal injury, had complete, exclusive, and absolute control over Marvin, and the opportunity to harm the child was Pilon’s alone. The medical testimony unrefutably establishes that Marvin could have lived a maximum of seven to eight hours after having been injured which would place the time of his injury at not earlier than 11 a. m. to 12 noon and possibly much later in the afternoon. The times are máximums and not mínimums. Although Nola was at home until 2:30 she observed no outward manifestation of the child’s injury. It was only after the child was within the exclusive custody of Pilón that there was a noticeable deterioration in his physical condition. This so concerned Dr. Kincaid that he suggested that the ehild be taken to a hospital.

Although Pilón argues that he cannot be convicted on evidence that is as consistent with innocence as with guilt, Fugate v. Commonwealth, Ky., 445 S.W.2d 675 (1969), this court does not so construe the evidence. The totality of the evidence definitely tips the balance of the scales against Pilón. It is true that the evidence is circumstantial. Pilón and the mother denied that he abused the child in any way. However, the fact remains that the child was beaten to death. In view of the evidence and the inferences that may justifiably be drawn therefrom, a reasonable mind might fairly find Pilón guilty beyond a reasonable doubt. This court is of the opinion that although the evidence was largely circumstantial it was sufficient to take the case to the jury and sustain the jury verdict. Cf. United States v. May, Court of Appeals, 6th Circuit, 430 F.2d 715 (1970).

Pilón asserts that the introduction of photographs of the dead child prejudiced his right to a fair trial. The cause of the death of Marvin Cole Marcum was a pivotal issue at the trial. The condition of his body and the evidence of trauma were essential to sustain the pathologist’s opinion that Marvin’s death was caused by a loss of blood due to a laceration of the spleen. The pictures were neither inflammatory or gory in detail but simply depicted bruises and marks on a young child consistent with the testimony given. Perry v. Commonwealth, Ky., 514 S.W.2d 202 (1974).

Pilón next asserts that he was entitled to an instruction on reckless homicide. Instructions in a criminal prosecution must have a source within the framework of the evidence introduced at the trial. There is no evidence in this record which would justify the giving of a reckless-homicide instruction. After all, Pilón and the mother both testified that he had not touched Marvin at any time prior to his death. Thus, there is an absolute void in the record upon which the trial court might have justified the requested instruction. Cf. Edwards v. Commonwealth, Ky., 489 S.W.2d 23 (1973).

Finally, Pilón claims that Dr. Kin-caid should not have been permitted to testify on behalf of the Commonwealth as a rebuttal witness. The trial court is afforded a great degree of discretion in determining when rebuttal evidence will be received. RCr 9.42. Where there is no clear showing of arbitrariness or an abuse of discretion, the ruling of the trial court will not be disturbed.

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    Mary Rose WILSON, Administratrix of the Estate of Billy Joe Wilson, Appellant, v. John D. WIZOR d/b/a Star Dust Cocktail Lounge, and Kentucky Workmen's Comp., etc., et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 29, 1976.
    Rehearing Denied Jan. 14, 1977.

      F. Thomas Conway, Louisville, for appellant.
    Roger P. Elliott, Asst. Atty. Gen., Frankfort, William L. Hoge, III, Joseph J. Golden, Louisville, for appellees.
   JONES, Justice.

The issue on this appeal is whether Billy Joe Wilson was acting within the scope of his employment as a bartender for John D. Wizor, d/b/a Star Dust Cocktail Lounge, at the time of his death on Christmas Eve, 1974.

The Workmen’s Compensation Board dismissed a claim for death benefits filed against Wizor and the custodian of the Uninsured Employers’ Fund by Mary Rose Wilson, the surviving widow of Billy Joe Wilson, for and on her behalf and the behalf of her dependent child. Mary Rose filed a petition for review in the Jefferson Circuit Court. The trial court upheld the board’s action. Mary Rose prosecutes this appeal.

Billy Joe Wilson was employed by John Helm, Wizor’s chief bartender. Helm’s employment of Billy Joe was with the knowledge and consent of Wizor. There is no conflict in the evidence that Wilson was behind the bar on December 24, 1974. All the patrons assembled in the Star Dust Cocktail Lounge on December 24, 1974 at 8 p. m., testified that Billy Joe was serving drinks. At approximately 8 p. m. on December 24, Billy Kessler came into the bar to get his brother, Danny. Kessler testified that he saw a movement and in reaction he knocked Pearl Allen, a patron of the bar, across the room. Winston Euless, the night bartender, who was either on the phone or sitting at one of the booths, went over to the bar and grabbed a billy club and attempted to strike Billy Kessler. Billy took the club away from Winston and proceeded to hit him with it. At this point, the evidence reflects that Billy Joe Wilson took a can of mace and fired it into the eyes of Billy Kessler. Billy then pulled a gun, and as he was being dragged away from the bar by his brother, fired the gun and killed Billy Joe Wilson. A blood examination of Billy Joe’s body showed 0.10% by weight (ethyl alcohol).

The facts surrounding Billy Joe Wilson’s death were found by the Workmen’s Compensation Board to be as follows:

“The decedent had worked on the day shift at the bar for John Thomas Helm who had employed the decedent to work for him. The day shift ended at 5:00 p. m. when another bartender’s shift started. The board finds that at the time of his death the decedent was not an employee of the defendant, Star Dust Cocktail Lounge, his shift having ended at about 5:00 p. m., and that he had remained at the bar that night to drink and for personal reasons and that his death was not work-related. The board further finds the decedent was intoxicated on the night in question and at the time of his death and his death was caused by his intoxication and his willful intention to injure the man who killed him when he sprayed mace in his face.” T.R. 364.

The thrust of the arguments by Wizor and by the custodian of the Uninsured Employers’ Fund was that Billy Joe’s employment ended at 5 p. m. Winston Euless testified that he arrived at work at 5 p. m. on the evening of the shooting. He also testified that Billy Joe Wilson asked him if it was alright if he stayed around to observe how Euless mixed drinks. However, the evidence reveals that if anyone was intoxicated on Christmas Eve 1974 at the time of the shooting of Billy Joe Wilson, it was Winston Euless.

Larsen’s Workmen’s Compensation Law Volume 1, Sec. 28.11, pg. 452.71 states:

“Under familiar doctrines in the law relating to emergencies generally, the scope of an employee’s employment is impliedly extended in an emergency to include the performance of any act designed to save life or property in which the employee has an interest.”

It is obvious that Billy Joe Wilson was acting in the interest of his employer, Wizor, in protecting the life of Winston Euless from the assault by Billy Kessler. Moreover, the evidence reveals that Wizor had knowledge that Billy Joe Wilson worked after 5:00 p. m. on the day he was killed by Kessler.

“The precise job at hand or the precise hours of work are not controlling on the question. The ultimate test is whether the service was incidental to the employment.
“Where it can be found that the injury was sustained while the employee was engaged in an activity in the interest of his employer, or for the protection of the life or safety of a fellow employee which ultimately amounts to the same thing, it is within the power of the Board to find the accident arose out of and in the course of employment and as an incident to it.” See Bell v. Lindsey Wilson College, Ky., 490 S.W.2d 145 (1972).

Since there is not a whit of evidence by any of the patrons of the bar that Billy Joe Wilson was not working at the time of his death, this court concludes that the death of Billy Joe Wilson arose out of and in the course of his employment.

This court is of the opinion that the board’s finding that Billy Joe Wilson was intoxicated and that his death resulted from this intoxication is not substantiated by any of the testimony. There is no evidence that Billy Joe Wilson was intoxicated at the time that he was killed. To the contrary, patrons of the bar testified that Billy Joe appeared to be all right. The mere submission of 0.10% by weight (ethyl alcohol) will not suffice to strip the decedent Billy Joe Wilson of the presumptions granted him and his dependents by the provisions of KRS 342.680. KRS 189.520(4) applies only to criminal prosecutions for operating a motor vehicle while under the influence of intoxicants. To overcome the presumption set forth in KRS 342.680, Wi-zor and the Uninsured Employers’ Fund must prove the intoxication of Billy Joe Wilson by substantial evidence, and that his intoxication was the primary cause of his death. This they failed to do. In a similar situation, this court said:

“We quickly dispose of the claim of drunkenness. There was proof of drinking on the part of Lawrence but no proof of intoxication.” Turner Elkhorn Mining Company v. Goble, Ky., 506 S.W.2d 521 (1974).

Applying the rules set out herein to the facts in this case, this court concludes that the death of Billy Joe Wilson arose out of and in the course of his employment. The court is of the opinion also that the board’s finding that Billy Joe Wilson was intoxicated is not supported by the evidence.

The judgment of the Jefferson Circuit Court is reversed with directions to enter a new judgment remanding this case to the Workmen’s Compensation Board for further proceedings consistent with this opinion.

All concur.


author: CLAYTON, Justice.

text:
    James R. YOCUM, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund, Successor to George R. Wagoner, Acting Commissioner, Appellant, v. Isaac LESTER et al., Appellees.
    Supreme Court of Kentucky.
    Nov. 12, 1976.
    Kenneth E. Hollis, Asst. Counsel, Dept, of Labor, Louisville, Earl M. Cornett, Gen. Counsel, Dept, of Labor, Frankfort, for appellant.
    Kelsey E. Friend, Baird & Baird, Pike-ville, for appellees.
   CLAYTON, Justice.

This appeal results from a workmen’s compensation claim for total disability benefits for pneumoconiosis. Lay and medical evidence presented below indicated appellee Isaac Lester to have labored some thirty years as a coal miner, the first twenty-five' for the Buchanan County Coal Corporation, in Big Rock, Virginia, and the remaining five years with the Kentucky Carbon Corporation of Phelps, Kentucky, and that his disease was the accumulative result of this experience. The Board found Lester totally disabled due to pneumoconiosis and awarded him disability benefits for 425 weeks at $65 per week. Since it could not find the disease conclusively proven to be the result of his last exposure to the hazards of occupational disease while working for the Kentucky Carbon Corporation, liability for such benefits was apportioned at 75% against the Special Fund and 25% against the employer, pursuant to KRS 342.316(13)(a). The Pike Circuit Court affirmed the Board, concluding as a matter of law that where an employee works for more than one coal company, only the last of which being located within the state of Kentucky, and the last exposure is subsequent to January 1, 1973, there is “multiple exposure” within the meaning of KRS Chapter 342, so that the apportionment of liability for compensation benefits as done by the Board was proper. The Special Fund appeals to this court, arguing the award should have apportioned at 40% for it and 60% for the employer under KRS 342.316(13)(a) and seeking that we recognize a distinction between the situation in this case and the normal circumstance where the claimant will have worked for different employers, all within the same state. After a careful review of the record of this case, however, we are not persuaded such action is merited by the facts presented herein.

Of appellant’s three arguments, two are drawn in terms of legislative intent. It first argues that since the Special Fund was intended to spread liability for occupational diseases in multiple-exposure cases among all carriers and self-insurers operating within this state, and derives no funding from wages paid workmen while employed outside Kentucky, it should incur no greater liability here, where it is not conclusively proven that disability is the result of claimant’s last injurious exposure to the respiratory hazards attendant to coal mining which occurred in Kentucky, than it would incur when only a single employer is involved, which single employer is a Kentucky resident. It secondly argues, by way of analogy, that since the General Assembly in drafting KRS 342.730 and .740, concerning calculation of amounts of benefits due based on average weekly wages of the claimant and average weekly wages statewide, did not intend for the Board to consider wages earned outside Kentucky, neither did it intend for the Board to concern itself with employment outside Kentucky when apportioning liability for the amount awarded under KRS 342.316. However, we feel that to accept these arguments, we would be required to insert in KRS 342.-316(13)(a) a condition that for there to be multiple exposure, the claimant must have been exposed to the occupational respiratory dangers as a result of working for at least two coal companies, both of which were located within Kentucky. The present statute lacks such requirement, and although it is not absolutely clear whether its absence is due to legislative intentional choice or legislative oversight, the former is more likely due to the repeal of former KRS 342.316(4), effective January 1, 1973, which required two years’ exposure in Kentucky prior to disability; it appearing that such a requirement could have been inserted in § 342.316(13)(a) if it were intended that only in-state exposures should be considered when apportioning an award. Due to the failure of the statute to address itself to this question, then, we are hesitant to accept appellant’s arguments, feeling that by doing so we would be stepping into an area reserved for the General Assembly, since “ . . . it is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there.” Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247, 249 (1962).

Appellant’s final argument is based on the idea that the purpose of the above-mentioned statute, KRS 342.316(4), that of protecting the Special Fund from liability for claims of migrant silicosis victims, is still valid even though the statue has been repealed, and that this purpose should be applicable in this case. To accept this argument, we must consider the claimant herein to have entered Kentucky only so as to qualify for workmen’s compensation benefits under Kentucky Law. The circumstances herein indicate, and the Board effectively found, this not to be the case since Lester worked in Kentucky continuously for over five years. Moreover, since KRS 342.316(4) was satisfied by two years’ employment within Kentucky prior to disability, any effect it would have as authority of any kind is muted by claimant’s five years within the state.

The judgment of the circuit court is affirmed.

All concur.