author: ROBINSON, Justice.

text:
    S. M. DILL and Keaton McCrary Cotton Co., Inc., Appellants, v. Faneta GRAHAM, Individually and as Independent Executrix and Trustee of the Estate of Sawyer A. Graham, Appellee.
    No. 8534.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 10, 1975.
    Rehearing Denied Dec. 8, 1975.

      McGowan, McGowan & Hale, Jim Pete Hale, Brownfield, for S. M. Dill.
    Weaver & Ferguson, John T. Ferguson, Big Spring, for Keaton McCrary Cotton Co., Inc.
    Anderson & Rudd, Ray D. Anderson, Brownfield, for appellee.
   ROBINSON, Justice.

This is a suit for breach of contract and for conversion of the landlord’s share of a cotton crop by the tenant farmer and a cotton buyer. The trial court entered judgment upon jury findings in favor of the plaintiff landlord against the tenant farmer and the intervening cotton buyer, and denied recovery on the cotton buyer’s cross action against the tenant. The cotton buyer and tenant appeal from the judgment in favor of the landlord. The cotton buyer does not appeal from the portion of the judgment denying it recovery against the tenant. Affirmed.

The testimony is, in part, as follows: Plaintiff Faneta Graham, individually and as representative of her late husband’s estate, owned a farm in Terry County, Texas, which was farmed for her by defendant S. M. Dill pursuant to an oral agreement. Mrs. Graham was to receive one-fourth of the cotton crop as rent. Dill first farmed the land in 1972. Although Mrs. Graham had permitted him to sell her share of the 1972 cotton crop with his share on the open market after harvest, Dill had never contracted cotton from Mrs. Graham’s farm. On March 26, 1973, Dill, as seller, contracted through the Foster Gin, as agent for buyer, to sell all of seller’s 1973 cotton crop grown on Mrs. Graham’s farm to Keaton McCrary Cotton Co., Inc. The Foster Gin is owned by Keaton Acuff Company. The Mr. Keaton of Keaton Acuff is the same person as the Mr. Keaton of Keaton McCrary Cotton Co., Inc.

In October, 1973, Mrs. Graham first learned that Dill had contracted the 1973 cotton crop. In late December, after some of the cotton was ginned, she asked Dill to deliver to her the one-fourth of the “green cards,” representing her share of the crop. Dill refused and said that he could not deliver the green cards and told Mrs. Graham emphatically that he was not going to deliver any of the tickets to her at any time. In fact, 41 bales of cotton (10¼ of which represented Mrs. Graham’s share) had already been ginned and the green cards delivered to Keaton McCrary. At the time of Mrs. Graham’s demand, and when she filed this suit, most of the crop was still in the field. The landlord’s share of the cotton still in the field was 60 bales.

Keaton McCrary notified the gin that it was claiming the cotton. Adolph Hollman, Keaton McCrary’s buyer, testified that the gin manager, who was acting as Keaton McCrary’s agent, was instructed not to deliver the cotton. After the cotton in the field was ginned, and after suit was filed, the gin held the green cards on that cotton. Later, the gin delivered the green cards to Dill for tender into court. Before trial, the court released three-fourths of the cotton to Keaton McCrary, and one-fourth (60 bales) to Mrs. Graham, in lieu of which Mrs. Graham posted her bond.

The jury found that Mrs. Graham and Dill had not agreed that Dill could contract the cotton for future delivery; that he agreed to deliver one-fourth of the cotton to her at the gin; and that he failed to do so. We find that Mrs. Graham’s testimony supports these findings of the jury and, after considering all of the evidence, conclude that these findings are supported by sufficient evidence and are not against the great weight and preponderance of the evidence.

Appellants contend that, because a cotton crop belongs to the tenant until it is harvested, the tenant may contract to sell the entire crop even before it is in the ground, and that, as a matter of law, Keaton McCrary, having dealt with the tenant, could not have converted cotton belonging to Mrs. Graham. Appellee contends that the tenant may not contract to sell the landlord’s one-fourth.

Unless their agreement provides otherwise, the tenant owns the entire crop prior to harvest. Nevertheless, the landlord has the fixed right to become owner of his share when the time for segregation and delivery arrives. Millingar v. Foster, 17 S.W.2d 768, 769 (Tex.Comm’n App.1929, jdgmt. adopted). To secure this right, he holds a landlord’s lien. Tex.Rev.Civ.Stat. Ann. art. 5222 (1962) provides a preference lien on the crop regardless of actual notice or lack of notice to the purchaser. The statute is notice to all persons. See Mathews v. Burke, 32 Tex. 419 (1870). The landlord may enforce his lien either by following the cotton and foreclosing the lien, or by suing the purchaser for conversion. Jarvis v. Spangler, 251 S.W. 525 (Tex.Civ.App.—Texarkana 1923, no writ). The landlord waives his lien by authorizing the tenant to sell the crop. Gilliam v. Smither, 33 S.W.984 (Tex.Civ.App.1896, no writ); Woodson v. Westbrook, 272 S.W. 821 (Tex.Civ.App.—Austin 1925, writ dism’d). If a purchaser buys the crop or a part of it on which the landlord has a lien, without the landlord’s consent or authorization to sell, the purchaser is liable in conversion to the landlord to the extent of the lesser of the value of the crop converted or the amount of rent due. Zapp v. Johnson and Dick, 87 Tex. 641, 30 S.W. 861 (1895); Farmers’ Elevator Co. v. Advance Thresher Co., 189 S.W. 1018 (Tex.Civ.App.—Dallas 1916, writ ref’d). Since one may convert personal property by receiving it pursuant to a transfer made without authority, it is thus incumbent upon the purchaser to ascertain the seller’s authority to sell, if he would protect himself from potential liability. Kimbell Milling Co. v. Greene, 162 S.W.2d 991, 997 (Tex.Civ.App.—Fort Worth 1942), aff’d, 141 Tex. 84, 170 S.W.2d 191 (1943). The exercise of dominion or control over another’s property in denial of or inconsistent with his rights is a conversion. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971); Conlee Seed Company v. Brandvik, 526 S.W.2d 795, 798 (Tex.Civ.App.—Amarillo 1975, no writ).

Applying the foregoing principles to the facts before us, we find that there is evidence that Keaton McCrary converted cotton belonging to Mrs. Graham.

We next consider whether there is sufficient evidence to support the jury findings that Keaton McCrary converted the 10¼ and 60 bales, respectively, on or about December 20, 1973. Mrs. Graham did not know the exact date in December on which she demanded the green cards. At one point in her testimony, she estimated it at December 20, 1973, and at another point, she said that it was between Christmas and New Year’s Day. In evidence is an un-cashed Keaton McCrary check for $1,370.78 tendered to Mrs. Graham after the suit was filed. The check, which was tendered as payment of the contract price for the 10¼ bales, is dated December 28, 1973, and recites that it is in payment of cotton that day sold. The reasonable inference from the testimony, including that of Hollman and Dill, is that Keaton McCrary acted to exercise dominion and control over all of the landlord’s share in the latter part of December, 1973. We conclude that the jury findings that Keaton McCrary converted the 10¼ bales and the 60 bales on or about December 20, 1973, are supported by the evidence and are not against the great weight and preponderance of the evidence.

By issues conditioned on affirmative answers to the issues inquiring if Keaton McCrary converted cotton belonging to Mrs. Graham on or about December 20, 1973, the jury was asked to find the fair market value of the bales converted. The jury found that the fair market value of the 10¼ was $2,600.00 and that the fair market value of the 60 bales was $18,900.00. Holl-man, Keaton McCrary’s buyer, testified to all of the figures necessary to compute the value of the cotton at the time it would have been first available to Mrs. Graham. He testified that the $1,370.78 check (dated December 28, 1973) tendered to Mrs. Graham in payment for the 10¼ bales represented the contract price of the bales, computed by multiplying the contract price of 27.36$ per pound times the number of pounds and deducting from the product $4.40 per bale for the first month’s compress charges. The number of pounds in the 10¾4 bales may be computed from those figures. Hollman testified that 52$ was the lowest price per pound of the type of cotton involved from December 1,1973, to January 20, 1974. It is apparent that the jury used these figures and the low per pound cost of 52$ in arriving at the market value of $2,600.00 for the 10¼ bales converted.

The individual bales making up the 60 bales would have become available to Mrs. Graham as they were harvested and ginned, but not all on the same day. The price per pound of cotton fluctuated from day to day. Hollman had before him the warehouse receipts and the green cards on each of the 60 bales. Rather than have Hollman testify to the market price per pound of each bale, it was agreed that he might testify to the average price per pound of the bales at the time that they would have become available for sale. It was stipulated that his testimony in that respect would be correct. He testified that the average price as of the date the bales would have been available in the ordinary course of business was 59½$ per pound. He testified, and it was stipulated, that the 60 bales totaled 31,963 pounds.

The jury obviously used the stipulated 59½$ per pound average market price and the stipulated 31,963 pounds in finding that the fair market value of the 60 bales converted was $18,900. Since the damages did not accrue until the cotton would have been available, since the value at that time as testified to by Hollman was stipulated, and since the jury obviously interpreted the issue in the light of that testimony, we do not find that the trial court erred in failing to limit the conditionally submitted damage issues to a particular date nor do we find that the method of submission resulted in an improper verdict.

The jury found in answer to another issue that the amount of money which would reasonably compensate Mrs. Graham for Dill’s failure to deliver one-fourth of the cotton crop was $21,500. The sum of $21,-500 represents the $2,600 and $18,900 which the jury found to have been the market value of the lOVi bales and the 60 bales, respectively, and which the uncontroverted evidence and stipulations show to be the market value at the time when it normally would have been available for delivery to her by Dill.

The answer to each of the damage issues is supported by evidence and is not against the great weight and preponderance of the evidence.

Appellants contend that the trial court erred in failing to submit a series of issues on the theories of waiver and estop-pel. The trial court submitted the theory of express waiver by asking the jury if Dill was authorized by his agreement with Mrs. Graham to sell the 1973 cotton crop for future delivery. We do not consider the fact that Mrs. Graham had permitted Dill, one time in 1972, to sell her share of the crop after harvest to raise issues that Mrs. Graham had impliedly waived her landlord’s lien on the 1973 crop so as to permit Dill to sell it on contract, or to raise issues that she was estopped to deny that Dill was authorized to contract the unplanted and un-grown crop for future delivery. The trial court did not err in refusing to submit the issues requested by appellants.

We do not find that the issues as submitted were a comment on the weight of the evidence or that, in the light of the stipulations and uncontroverted evidence, the wording of the issues submitted was calculated to cause or did cause an improper verdict.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SHANNON, Justice.

license: Public Domain

text:
    RANGER INSURANCE COMPANY, Appellant, v. Sara ROGERS et al., Appellees.
    No. 12297.
    Court of Civil Appeals of Texas, Austin.
    Nov. 12, 1975.
    Rehearing Denied Dec. 3, 1975.

      L. W. Anderson, Dallas, for appellant.
    Tom H. Davis, Byrd, Davis, Eisenberg & Clark, Austin, for appellees.
   SHANNON, Justice.

Appellees, Sara Rogers, the administra-trix of the estate of John D. Rogers, deceased, and Billie L. Arnold, individually and as next friend for William Allen Arnold, a minor, sued appellant, Ranger Insurance Company in the district court of Travis County. After a trial to a jury and upon appellees’ motion, the district court entered judgment non obstante veredicto for Billie L. Arnold and the minor child for a total of $450,000.00.

The event made the basis for this appeal was the crash of a Piper aircraft in West Texas on April 13,1972. At the time of the crash John D. Rogers was the pilot of the aircraft and Billy J. Arnold was a passenger. Rogers was president of and a major stockholder in United Housing Corporation. Rogers had used the airplane for trips about the area in the furtherance of his business interests. On the occasion of the crash he and Arnold had flown to Lubbock in connection with the commencement of a new business venture for United Housing Corporation. Both Rogers and Arnold were killed in the crash.

Appellant had written a liability insurance policy pertaining to the involved airplane with $500,000.00 limits for each occurrence. Early in the course of events appellant took the position that its policy offered no coverage at the time of the crash for the reason that the pilot was flying the aircraft in violation of the terms of the policy. In an effort to resolve the coverage problem appellant filed a declaratory judgment proceeding in the United States district court for the Northern District of Texas seeking a judgment that it was not liable for the claims arising from the crash. The jurisdictional basis for filing suit in the United States district court was diversity. In order to preserve diversity the insurance company did not join certain of the interested parties who were residents of Texas. The United States district court dismissed the suit upon the basis that the estate of Billy J. Arnold was a necessary party and if the estate were joined, there would not be complete diversity of citizenship. Ranger Ins. Co. v. United Housing of New Mexico, Inc., 488 F.2d 682 (5th Cir. 1974).

Billie L. Arnold, wife of the deceased passenger, filed a death action in the United States district court for the Western District in El Paso against the administrator of the estate of the pilot and United Housing Corporation. Counsel for the administrator of the estate of Rogers tendered the defense of the suit in the United States district court to the insurance company. The insurance company took the position that there was no coverage of the crash by the terms of its policy and refused to defend the suit without a “reservation-of-rights” agreement. The administrator of the estate refused to permit the company to defend the suit with such an agreement.

In September, 1973, a consent judgment was entered by the United States district court approving the settlement made by the parties. The approval of the court was necessary inasmuch as a minor child was one of the beneficiaries of the death benefits. By the terms of that judgment Billie L. Arnold recovered $425,000.00 from the estate of John D. Rogers and the minor child recovered $25,000.00 from the said estate.

In March, 1974, appellees filed suit in the district court of Travis County on the judgment obtained in the United States district court. In their trial petition the appellees averred that at the time of the crash, the appellant insurance company had in force a liability insurance policy which protected John D. Rogers against liability for injury or death to passengers in the plane. Although requested to do so, the insurance company refused to defend the estate of John D. Rogers and, likewise, the insurance company refused to pay the judgment entered in the United States district court. Appellee pleaded further that by the terms of its liability policy the insurance company was responsible to them for the amount of the judgment entered in the United States district court in addition to reasonable attorneys’ fees for the defense of that suit.

In its trial pleading, appellant pleaded (1) that the judgment obtained in the United States district court “ . . . amounted to a fraud on the Court and was procured through collusion between the parties, and not in good faith, and accordingly does not constitute a proper judgment which can be sued upon”; (2) that the amount of the judgment obtained in the United States district court was unreasonable, and that the appellees had the burden to prove the reasonableness of that judgment; and (3) that at the time of the crash, the pilot was operating the airplane in an area where there was not proper visibility, all in violation of the terms of the insurance policy and, therefore, there was no coverage under that policy for claims arising from the crash.

The charge of the court contained five special issues. Special issue number one asked, “Do you find from a preponderance of the evidence that on the occasion of the crash, John Rogers was flying his aircraft in an area where the visibility was one mile or more?” The jury answered “He was.” Special issue number two queried, “Do you find from a preponderance of the evidence that on the occasion of the crash, John Rogers was flying his aircraft in an area where the visibility was less than one mile?” The jury answered “He was not.” Special issue number four inquired, “Were the terms and provisions of the judgment which was agreed to by United Housing and the Rogers Estate and entered by the United States District Court in El Paso entered into in good faith?” The jury was instructed that the term “good faith” as used in the charge meant not only honesty in fact in the conduct of the transaction concerned, but also meant conduct within the bounds of reason or with a reasonable basis when viewed under the facts and circumstances which existed at that time. The jury was further instructed that if an insurer refused “to defend its insured pursuant to the terms of the policy in question, the insured may in good faith enter agreements to limit his liability and expenses.” The jury answered “no” in response to special issue number four. The jury answered special issue number five that $250,000.00 for Billie L. Arnold and $35,000.00 for the minor child would have been a reasonable settlement for United Housing and the estate of John D. Rogers to have made with appellees.

The insurance company filed a motion for judgment to the effect that judgment be entered based upon the answers of the jury, awarding Billie L. Arnold $250,000.00 and the minor child $25,000.00.

Appellees filed a motion for judgment non obstante veredicto asking the jury to disregard the answer of the jury to special issue number four and to enter judgment for them for the full amount of the judgment obtained in the United States district court. Appellees’ motion for judgment non obstante veredicto stated no grounds, other than that appellees were entitled to such judgment “as a matter of law.”

As stated above, the district court granted appellees’ motion for judgment non ob-stante veredicto and entered judgment for Billie L. Arnold in the sum of $425,000.00 and for the minor child in the sum of $25,-000.00.

Points of error one and two constitute appellant’s primary attack upon the judgment non obstante veredicto. Point one is that the court erred in failing to grant appellant’s motion for judgment since the jury found that the “ . . . terms and provisions of the settlement agreed upon by United Housing and the Rogers Estate, and the judgment entered pursuant thereto by the United [sic] District Court of El Paso, were not reasonable and made in good faith. . . . ” (Emphasis added) Point of error two is that the court erred in entering judgment non obstante veredicto for the reason that the evidence “ . in connection with the reasonableness and good faith of the settlement involving the entrance into the agreed judgment . ” was contested, that counsel for appellees did not object to the submission of special issue number four, and as a matter of law “ . . . reasonableness and good faith are necessary elements for the appel-lees to prove to recover on any judgment where there was no evidence offered and no trial of any issues made to the court.” (Emphasis added)

Appellees defend the judgment non ob-stante veredicto upon three grounds: (1) that the consent judgment is not subject to collateral attack by appellant, (2) that the burden was upon the insurance company to prove that the amount of the settlement was unreasonable, and (3) that appellees established the reasonableness of the settlement as a matter of law.

In the beginning, it should be stated that although appellant’s points of error refer to the settlement between the parties, it is the consent judgment of the United States district court which is the subject here under consideration.

The consent judgment provides in part: “ . . . Plaintiff and defendant announced in open Court that a settlement of all claims asserted herein had been agreed upon by and between the parties subject to the approval of the Court, requested the Court to consider the terms and provisions of the proposed settlement agreement and enter judgment accordingly. The Court, having considered the facts and circumstances of this case, and the proposed settlement agreement, approves the terms and provisions thereof and finds that the amount of the settlements to the plaintiff is in all things reasonable.”

A consent judgment has the same degree of finality and binding force as does one entered by the court at the conclusion of an adversary proceeding. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 239 (1961), Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956), Farr v. McKinzie, 477 S.W.2d 672 (Tex.Civ.App.1972, writ ref’d n.r.e.), Akin v. Akin, 417 S.W.2d 882 (Tex.Civ.App.1967, no writ), 3 Freeman, Judgments, § 1350 (1925).

Though not articulated, appellant’s thesis seems to be that it was a stranger to the consent judgment and that, as a result, the judgment has no binding effect on it. See State Mortgage Corp. v. Traylor, 120 Tex. 148, 36 S.W.2d 440 (1931), Scales v. Wren, 103 Tex. 304, 127 S.W. 164 (1910). University of Texas: Hodges, Collateral Attacks on Judgments, 41 Texas L.Rev. 163, 164 (1962).

With respect to appellant’s relationship to the consent judgment, it should be observed that appellant had contracted to pay on behalf of the insured all sums which the insured “ . . . shall be legally obligated to pay as damages because of . death . . . sustained by any person . caused by an occurrence and arising out of the ownership, maintenance or use of the aircraft.” Appellant had notice of the suit filed in the United States district court in El Paso. In fact, counsel for the Rogers’ estate had tendered the defense of that suit to appellant. Had appellant accepted the defense, it would have had, of course, the opportunity to conduct the defense in the manner most likely to have defeated the plaintiffs’ claim or at least to have reduced the amount of the damages. Appellant would accept the defense of the case only with a “reservation-of-rights" agreement. The administrator of the Rogers’ estate and United Housing Corporation were not obligated to accept appellant’s effort to limit its responsibility under the contract of insurance, and they ultimately settled the case and obtained the consent judgment. Under these circumstances appellant will not be regarded as a stranger to the consent judgment. American Fidelity & Casualty Co. v. Williams, 34 S.W.2d 396, 402 (Tex.Civ.App.1930, writ ref’d).

Having determined that appellant was not a stranger to the consent judgment, we are of the opinion that the rules with respect to collateral attacks are applicable to appellant. A collateral attack is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (Tex.1895). To the contrary, a direct attack on a judgment is an attempt to change that judgment in a proceeding brought for that specific purpose, such as an appeal or a bill of review. Crawford v. McDonald, supra. The grounds upon which a collateral attack may be successful are that the court rendering judgment has: (1) no jurisdiction of the person of a party, or his property, (2) no jurisdiction of the subject matter of the suit, (3) no jurisdiction to enter the particular judgment entered, or (4) no capacity to act as a court. Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.1973). 41 Texas L.Rev. 163, 164, supra.

The grounds of appellant’s attack on the consent judgment were none of the above, but instead were that the consent judgment was obtained by fraud and the amount of the judgment was unreasonable. Appellant did not request the submission of issues inquiring into fraud in the procurement of the consent judgment. Even had appellant obtained the submission of those issues, and even had it obtained favorable answers to those issues, judgment non ob-stante veredicto nevertheless would have been proper since under those circumstances the judgment of the United States district court would not have been subject to collateral attack. Mikeska v. Leon & H. Blum, 63 Tex. 44 (1885), Murchison v. White, 54 Tex. 78 (1880), 41 Texas L.Rev. 499, 519 (1963). Had appellant assumed the burden of requesting an issue similar to special issue number four, inquiring of the reasonableness of the consent judgment, and had appellant obtained an affirmative finding to such issue, judgment non obstan-te veredicto would have been proper for the same reason.

As we are of the opinion that appellant’s defenses of fraud and unreasonableness of amount represent an attempted collateral attack upon the consent judgment obtained in the United States district court, points of error one and two will be overruled.

Appellant’s basis for denying coverage was that at the time of the crash, the pilot allegedly was flying the aircraft in violation of paragraph seven of the insurance policy. Paragraph seven provides:

“PILOT CLAUSE. Only the following pilot or pilots holding valid and effective pilot and medical certificates with ratings as required by the Federal Aviation Administration for the flight involved will operate the aircraft in flight . John Rogers.”

John D. Rogers did not have an instrument rating. The Visual Flight Rules require that a pilot have one mile of visibility. Appellant contended that at the time of the crash the pilot did not have a one-mile visibility and since he did not have an instrument rating, he did not have an appropriate rating for the flight, all in violation of paragraph seven of the policy.

Coverage, then, depended upon whether or not the pilot was flying the aircraft in an area where the visibility was one mile or more or less than a mile. As indicated earlier, the jury answered by special issue number one that the pilot was flying the aircraft in an area where the visibility was one mile or more. In response to special issue number two the jury answered that the pilot was not flying the aircraft in an area where the visibility was less than one mile.

By several points of error appellant attacks the jury’s answers to those special issues as being supported by no evidence and so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

The crash occurred near the intersection of the Hobbs-Seminole Highway on April 13, 1972. The aircraft had flown out of Lubbock about 7:30 in the evening into a dust storm. At about 7:44 the aircraft returned to the Lubbock area, and its pilot advised the Lubbock tower that he had “no horizon.” The tower gave the pilot directions for a landing. By that time, however, the pilot had changed his mind, and he told the tower “ . . . my visibility has improved so much over here, I think maybe ... I might try VFR going south down towards Seminole.” The pilot continued to the tower, “ . . I’m VFR, I’m going to stay right over the highway, thank you.”

When the plane was about twenty miles east of the airport at Hobbs, New Mexico, the pilot received a weather report from the tower. In response to that report the pilot queried, “ . . . We’re still VFR then?” The tower replied, “Well, sir, it’s quite marginal in VFR, visibility is fluctuating between probably two and a half to three and a quarter or three and a half miles.”

Appellees called as an expert witness, James C. Fidler, a meteorologist and a pilot. He testified that between 7 and 9 P.M. on the evening in question the weather stations in Lubbock and in Hobbs reported a mile or more visibility. Hobbs was the weather station closest to the crash.

Appellees placed into evidence the deposition testimony of the deputy sheriff of Gaines County, Hamilton Bell. Bell was on patrol on April 13 about a mile away from the scene of the crash. At that time, he “. . . just saw an orange flash just lit the sky up in front of me.” “. . . And that’s all I saw was just an orange flash.”

Bell testified that at about the time of the crash one could see an unlighted object at a quarter to a half mile distance, but that one could see a flash or light at a greater distance than an unlighted object.

Appellant read into evidence portions of Bell’s deposition to the effect that at the time of the crash there was a “pretty bad sandstorm blowing.” The sandstorm was “pretty bad, about the worst one we had that year, I guess.” Bell stated that “. just driving down the highway, I imagine the visibility was probably a quarter to a half mile at times.” In answer to a question inquiring as to whether the weather conditions made it hard to see, Bell responded, “Well yes. The sand was blowing real hard.”

Pidler was recalled and was permitted to testify, based upon the deposition testimony of Bell, that the minimum visibility at the time of the crash must have been about one and one-half miles.

Appellant called Harold Taft, a meteorologist, as an expert witness. He had made an investigation concerning the weather conditions at or near the scene of the crash at the time concerned. Taft testified that based upon his study of the weather reports the site of the crash was near the core of the storm, and that the forward visibility at that time was a quarter of a mile to a half mile.

Appellant also called Edward Dale Cooper who was returning by automobile from Hobbs to Seminole on the evening of the crash. He saw the lights of the airplane and he later saw the light from the explosion caused by the crash. Cooper testified that at the time of the crash the visibility could not have been “over half a mile.”

As may be seen, the appellant’s expert testimony was pitted against the expert testimony tendered by appellees. Appellant’s lay testimony concerning visibility was contrary to the figures of the records of the nearest weather station. The weight and probative force of evidence is entirely for the jury. Likewise, the jury is the exclusive judge of the credibility of witnesses and the weight to be attached to their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). The law does not attempt to direct the jurors as to the amount or kind of evidence which ought to produce a belief in their minds. The jury may believe a witness although he has been contradicted, and, likewise, the jury may believe the testimony of one witness and reject the testimony of other witnesses. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957), 1 McCormick and Ray, Texas Law of Evidence, § 3 (2nd ed. 1956).

We are satisfied from a review of the statement of facts, some of which has been summarized above, that the answers of the jury concerning visibility were supported by probative evidence and that those answers were not contrary to the great weight and preponderance of the evidence.

Point of error number ten complains that the trial court misplaced the burden of proof in special issue number two. Point of error number nine claims error by the court in refusing to submit appellant’s requested special issue. The requested special issue provided, “Do you find from a preponderance of the evidence, that on the occasion of the crash, John Douglas Rogers was not flying his aircraft into an area where there was not proper visibility under Visual Flight Rules?” Appellant says that the requested special issue properly placed the burden of proof in connection with the coverage question. We will overrule the points of error for the following reasons.

Wherein the lawsuit is on an insurance contract which insures against certain general hazards, but the contract of insurance contains other provisions limiting such general liability, the insurance company must plead that the loss was due to a risk or cause coming within a particular exception to the general liability. Tex.R. Civ.P. 94. At trial, the burden of proof is upon the insured to negative the exclusions and limitations contained in the policy and pleaded as a defense by the insurance company. Sherman v. Provident American Insurance Company, 421 S.W.2d 652 (Tex.1967), Hardware Dealers Mut. Ins. Co. v. Berglund, 393 S.W.2d 309 (Tex.1965). In the case at bar, then, it was appellees’ burden to obtain a submission and favorable finding negating appellant’s coverage defense.

Appellant did not object to the submission of special issue number one. As it will be recalled, special issue number one inquired whether John Rogers was flying his aircraft in an area “where the visibility was one mile or more.” The jury responded affirmatively. Appellant waived any complaint of any improper placement of the burden of proof in special issue number one by its failure to object. Tex.R.Civ.P. 274. Assuming, but not deciding, that appellant’s requested special issue is correct, its tender will not be given effect as an objection to special issue number one. If an issue is submitted in defective form, an objection is necessary, and a request for submission in correct form will not preserve the complaint. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (Tex.1951), Hodges, Special Issue Submission in Texas, Section 69 (1959 with 1969 Supp.).

In view of appellant’s failure to object to the submission of special issue number one and the jury’s response to that issue, the submission of special issue number two, if error, was not such error as to amount to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex. R.Civ.P. 434.

In connection with its requested special issue appellant requested the court to define “VFR Conditions” as the term was used in the tendered special issue to mean “. . . that flight visibility is less than one (1) mile.” The refusal of the court to give the instruction forms the basis for appellant’s point of error eight. Appellant does not offer argument or authority in support of this point. It is settled that the points of error are required to be supported by argument and authority, Tex.R.Civ.P. 418(c), and if not supported, the points are waived. Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.1944, writ ref’d), Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.1974, writ ref’d n. r. e.).

By its point of error number twelve appellant claims error by the district court in permitting counsel for appellees to make an opening statement to the jury wherein he outlined in detail the names and the substance of the testimony of many witnesses he intended to call. Appellant’s counsel objected repeatedly during the appellees’ opening statement and moved for a mistrial. After the district court had overruled appellant’s objections and motion for mistrial, appellant’s counsel, in turn, gave his opening statement in terms almost as detailed as that of appellees.

Texas R.Civ.P. 265(a) provides in part: “The party upon whom rests the burden of proof on the whole case shall be permitted at his option to read his pleading or to state to the jury briefly the nature of his claim or defense.” (Emphasis added)

Rule 265(a) does not afford counsel the right to detail to the jury the evidence which he intends to offer, nor to read or describe in detail the documents he proposes to offer. The practice of detailing the expected testimony in the opening statement places matters before the jury without the trial court having had an opportunity to determine the admissibility of such matters. See Abbots Civil Jury Trials, §§ 96 and 97 (5th ed. 1935). We are of the further opinion that such a practice sometimes has the effect of misleading or confusing the jurors as between the expectations of counsel and evidence actually admitted. The proper limitation of the opening statement is a matter necessarily resting in the discretion of the trial court subject to review for abuse of discretion. 1 Thompson on Trials, § 266 (2nd ed. 1912).

The opening statements of counsel for appellees and appellant were in violation of Rule 265(a). The district court should not have tolerated counsel for either party to have detailed the evidence which he expected to introduce, and the court’s failure to limit counsel was erroneous. Under the circumstances of this case, however, particularly in view of the fact that counsel for both parties violated Rule 265(a), we are not convinced that the court’s failure to sustain the objections and the failure to grant the motion for mistrial was such error as was calculated to cause the rendition of an improper judgment.

Appellees read into evidence the deposition testimony of Glen Hillman. Hill-man was a farmer who was inside his trailer house watching television on the evening of the crash. He was unaware of the crash until someone came to his door and “. wanted to know what all the lights were doing out in the pasture next to my farm.” Over counsel’s objection, appellees’ counsel read into evidence the testimony of Hillman that since the time of the crash the area had experienced a dust storm of the same approximate magnitude as the one of the night of the crash. In the more recent dust storm he was able to see the light at an elevator and gin yard about one mile from his trailer house. We will sustain appellant’s fourteenth point of error complaining of the admission of Hillman’s testimony. Hillman was inside his trailer house watching television when the crash occurred. It was not until some time later that he knew that there had been an accident. He knew, in general, that there was a sandstorm in progress, but he was in no position to compare the density of the sandstorm at the time of the crash with the density of a later sandstorm. As a result, we are of the opinion that Hillman’s opinion as to visibility amounted to no more than surmise and speculation and should not have been received. 2 McCormick and Ray, Texas Law of Evidence, § 1399 (2nd ed. 1956). As previously noticed, appellees introduced other evidence from which the jury could have concluded that the visibility at the time of the crash was a mile or more. Therefore, we are of the opinion that the district court’s error did not amount to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434.

Appellant’s point of error number fifteen complains of the admission of evidence that Billy J. Arnold expected to make fifty thousand dollars each year wherein the business had not commenced, the location of the business had not been secured, and no salary or earnings had been paid to Arnold at the time of his death. Appellant says that such evidence was speculative and amounted to more than conjecture. In view of our holding with respect to appellant’s points of error one and two, it is not necessary to pass on point of error fifteen.

Appellant has many other points of error claiming error of the court mainly in the admission of evidence and claiming improper jury argument on the part of appellees’ counsel. We have considered those points of error and have concluded that some of those points do present error, but that such error was not such that probably caused the rendition of an improper judgment.

The judgment is affirmed.


author: WALTER, Justice.

text:
    Maurine ECK, Appellant, v. J. P. McNATT, Individually and as the Independent Executor of the Estate of A. S. McNatt, Deceased, et al., Appellees.
    No. 4820.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 14, 1975.
    Rehearing Denied Dec. 5, 1975.

      Ronald W. Kessler, Feather & Kessler, Dallas, for appellant.
    Kenneth E. Labowitz, Charles L. Caper-ton, Dallas, Tom D. Jester, Jr., Minor, Jester & Davidge, Denton, for appellees.
   WALTER, Justice.

Maurine Eck, daughter of A. S. McNatt, deceased, sued her brothers, J. P. McNatt, individually and as independent executor of the Estate of A. S. McNatt, and Leon McNatt. She alleged J. P. McNatt failed to include in the inventory notes which he and his brother owed to the estate. She alleged Leon McNatt conspired with J. P. and aided and abetted him in such malfeasance, and breach of fiduciary duty.

The McNatt brothers’ pleadings assert the notes were barred by the four year statute of limitations. Their motions for summary judgment were granted and Mrs. Eck has appealed.

A. S. McNatt died May 4, 1970. J. P. McNatt executed a note for $50,000 payable to A. S. McNatt on January 1,1960 and due on January 1, 1961. He executed another note to his father on June 8, 1964, for $20,000 payable on June 8, 1965. He executed another note to Leon Schiff for $25,-000 on January 6, 1960, payable in five equal installments of $5,000 each, the first installment being due on January 6, 1961. This note was assigned to A. S. McNatt during his lifetime. Leon McNatt executed four chattel mortgage notes to his father on October 19, 1960, which were due on October 19, 1961. The notes were all barred by limitation long before Mr. A. S. McNatt died in 1970.

Mrs. Eck contends summary judgment was improper because there was a fact issue on the question of whether or not a fiduciary relationship existed between J. P. and her father which would toll the statute of limitations.

“ . . . It is generally held that mere fiduciary or confidential relations between parties to a suit, with respect to the matters in controversy, will not per se prevent the running of the statute.” 54 C.J.S. Limitations of Actions p. 152.

In Crawford v. Davis, 148 S.W.2d 905 (Tex.Civ.App.—Eastland 1941, no writ), plaintiff sued his attorney for negligence. The attorney plead limitations. The court said:

“We are unable to see that the question is in any way affected by the fact that plaintiff and defendant Tom Davis sustained to each other the confidential relationship of attorney and client.”

Assuming without deciding that a fiduciary relationship existed between J. P. and his father, this fact would not prohibit the brothers from pleading limitations. Summary judgment evidence established as a matter of law the notes were barred by the four year statute of limitations.

We have considered appellant’s point of error and find no merit in it. It is overruled.

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Terry HARMON et al., Appellants, v. Xenia MILLER et al., Appellees.
    No. 860.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 20, 1975.
    Rehearing Denied Dec. 11, 1975.
    James R. Pierce, Tyler, for appellants.
    Melvin G. Bateman, Moore, Bateman & George, Athens, for appellees.
   DUNAGAN, Chief Justice.

This is an appeal from a denial of a bill of review sought by appellants to set aside a default judgment vesting title to realty in appellees. An examination of the record before us raises the question of our jurisdiction because it shows appellants failed to timely deposit cash in lieu of bond.

The judgment was signed on the 13th day of January, 1975. No motion for a new trial was filed nor was one required as this was a non-jury case. The deposit of cash in lieu of bond was on February 26, 1975, which was more than 30 days after the judgment was signed.

Rule 356, Texas Rules of Civil Procedure, requires cost bonds or the cash deposit in lieu thereof to be filed within 30 days after the date of judgment or order overruling the motion for new trial. Appellants’ cash deposit in lieu of the cost bond was not timely filed and consequently was not in compliance with this rule. The filing of an appeal bond or cash deposit in lieu thereof is mandatory and jurisdictional and compliance cannot be waived. Heldt Brothers Trucks v. Alvarez, 477 S.W.2d 691 (Tex.Civ.App.—San Antonio, 1972, writ ref’d); Roth v. Maryland American General Insurance Co., 454 S.W.2d 779 (Tex.Civ.App.—San Antonio 1970, writ ref'd); Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ.App.—San Antonio 1968, writ ref’d).

It is well settled that when our jurisdiction is invoked the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. Hilliard v. Hines, 403 S.W.2d 442 (Tex.Civ.App.—Tyler 1966, n. w. h.) and Miller v. Esunas, 401 S.W.2d 150 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.).

Appellants’ appeal bond having not been timely filed the transcript fails to disclose that we have jurisdiction and the appeal must be dismissed. Hubbard v. Faulks, 159 S.W.2d 919 (Tex.Civ.App.—Fort Worth 1942, n. w. h.).

Appeal dismissed.


author: PER CURIAM.

text:
    Rene DeLEON, Relator, v. Honorable Carl PERIMAN, Judge of the Court of Domestic Relations of Potter County, Texas, Respondent.
    No. 8650.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 24, 1975.

      Carson Smith, Amarillo, for relator.
   PER CURIAM.

The ultimate issue in this original mandamus proceeding is whether the court having continuing jurisdiction of a suit affecting the parent-child relationship is required to act on a proper motion to modify its managing conservatorship order entered less than one year previously. We hold that the court is required to entertain the motion and to seasonably either deny the motion or schedule a hearing on its merits. Writ granted.

Relator Rene DeLeon moved for and was granted leave to file a petition by which he seeks a writ of mandamus commanding the Honorable Carl Periman, Judge of the Court of Domestic Relations of Potter County, Texas, as respondent, to entertain his motion and affidavit which had been filed for the purpose of seeking the designation of a managing conservator different from the one appointed by the court’s order entered seven months previously. The relator further petitions for the writ to also compel respondent to order the managing conservator to appear and show cause why a temporary managing conservator should not be appointed.

Summarized, relator’s sworn averments are: Helen DeLeon, the former wife of relator, was appointed managing conservator of their three-year-old son by the 9 April 1975 order of the Court of Domestic Relations of Potter County, Texas, entered in Cause No. 18,845 decreeing the termination of the marriage relationship between the parties. Approximately seven months later on 5 November 1975, relator filed in the cause his verified motion, to which was attached his affidavit, alleging why the pri- or order should be, and praying that on a hearing it be, modified by the appointment of a different managing conservator. The affidavit contains the allegation that “I have reason to believe and do believe that the present environment of the child endangers the child’s physical health and significantly impairs the child’s emotional development,” and a recitation of matters which relator submits as facts supporting the allegation. On the day of the filing, an in-chambers presentment of the motion and affidavit, together with a proposed order for a show cause hearing on the appointment of a temporary managing conservator, was made to the respondent judge, who, upon being requested to make a determination, refused to consider the instruments and take any action thereon either then or on the re-presentment in open court on the following day. In refusing to act, respondent stated that he would not consider the motion or affidavit, even if an emergency existed, and that he would only entertain an agreed order from the parties.

The unchallenged averments are accepted as true. Hidalgo County Water Improvement District No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 596 (1957).

Relator’s motion to modify comes within the purview of, and his affidavit encompasses the elements enumerated in, the provisions of V.T.C.A., Family Code § 14.08(d) which, as amended effective 1 September 1975 by the 64th Legislature, reads:

(d) If the motion is filed for the purpose of changing the designation of the managing conservator and is filed within one year after the date of issuance of the order or decree to be modified, there shall be attached to the motion an affidavit executed by the person making the motion. The affidavit must contain at least one of the following allegations along with the supportive facts:
(1) that the child’s present environment may endanger his physical health or significantly impair his emotional development; or

Further amending § 14.08(d), the legislature provided by a new subsection that:

(e) On the filing of a motion to which the provisions of Subsection (d) of this section apply, the court shall deny the motion and refuse to schedule a hearing unless the court determines, on the basis of the affidavit, that adequate facts to support an allegation listed in Subdivision (1)or (2) of Subsection (d) of this section are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, a time and place for the hearing shall be set. (Emphasis supplied.)

It is to be noticed that, after declaring in § 14.08(a) of the Code that an order of appointment of a conservator “may be modified only by the filing of a motion in the court having jurisdiction of the suit affecting the parent-child relationship,” the legislature specified that the court shall deny a § 14.08(d) motion unless the court determines that the attached affidavit expresses adequate facts to support its allegation, in which event the court shall schedule a hearing. When it appears in a statute, the word “shall” is used in the mandatory sense, particularly in providing for the essence of the thing to be done, unless it can be said, after a consideration of the entire act, that the legislature intended the word to be merely directory. Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956).

Considering the nature and object of the parent-child relationship legislation and the effect thereon of contrasting consequences that flow from the mandatory or directory construction given the word “shall” as used in § 14.08(e), it is evident that the legislature intended to use the word in the mandatory sense. The legislature prescribed an exclusive method by which the court is informed of an attack on the managing conservatorship; it surely intended to provide that the court must decide and announce without undue delay whether the information supplied warrants further inquiry for the protection of the child. Otherwise, if the court were free to ignore the matter, the inaction would defeat the object of the legislation, because there would be no compellable examination of the factual allegations to ascertain if they indicated the need for a hearing. Obviously, then, the legislature intended, and we hold, that upon presentation of a § 14.-08(d) motion filed in the court of continuing jurisdiction, the judge is required to entertain the motion and to seasonably either deny the motion and refuse to schedule a hearing or, if the affidavit be deemed adequate, schedule a hearing on its merits.

This court is authorized by Vernon’s Ann.Civ.St. art. 1824 to compel a judge, by writ of mandamus, to proceed to trial and judgment in a case. The authorization does not sanction the use of the writ to dictate the character of any order or judgment that is discretionary with the trial judge, Stephenson v. Boyer, 479 S.W.2d 355 (Tex.Civ.App.—Amarillo 1972, no writ); but it does include the granting and issuance of the writ when the judge improperly refuses to act on a matter within his jurisdiction, Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1073 (1926), such as failing to act on a motion within a reasonable time, Smith v. Monroe, 2 S.W.2d 929, 930 (Tex.Civ.App.—El Paso 1928, no writ), or refusing, after he has been requested, to hold a hearing on a motion, Crouch v. Shields, 385 S.W.2d 580, 583 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.), cert. denied, 382 U.S. 907, 86 S.Ct. 232, 15 L.Ed.2d 159 (1965), or refusing, upon request, to perform an act required by statute. Hursey v. Bond, 141 Tex. 337, 172 S.W.2d 305, 306 (1943). See, also, Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961).

The averments, which we have accepted as true, reflect there is no legal excuse for Judge Periman’s refusal to act as required by the statute to entertain the motion and to either deny it or schedule a hearing on its merits. It follows that to this extent relator’s petition for writ of mandamus, and the writ, must be granted; but insofar as the petition seeks to control respondent’s discretion regarding a temporary managing conservatorship, it is denied.

In view of the foregoing, we assume that Judge Periman will entertain the motion to modify forthwith and either (1) deny it, or (2) schedule a hearing on its merits if he finds that the affidavit warrants a hearing; accordingly, the writ will issue only in the event he does not do so.


author: GARDNER, Commissioner.

text:
    KENTUCKY MUNICIPAL LEAGUE et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF LABOR, and Associated Professional Firefighters of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Nov. 14, 1975.

      W. Carl Fust, Louisville, George F. Rabe, Law Department, Lexington, Wayne Priest, Bowling Green, John S. Moremen, III, Anchorage, Carl L. Wedekind, Jr., T. Kennedy Helm, III, Stites, McElwain & Fowler, Louisville, L. P. Lawton, Henderson, John Arnett, Elizabethtown, Donald C. Winter-sheimer, Covington, for appellants.
    E. H. Tingle, Asst. Counsel, Earl M. Cor-nett, Gen. Counsel, Dept, of Labor, Frankfort, for appellee, Department of Labor.
    Herbert L. Segal, John Frith Stewart, Linda J. Wallbaum, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellee, Associated Professional Firefighters of Kentucky.
   GARDNER, Commissioner.

This action for a declaration of rights was brought by Kentucky Municipal League, Lexington-Fayette Urban County Government, and a city of each of the six classes against Commonwealth of Kentucky, Department of Labor, and Associated Professional Firefighters of Kentucky. Plaintiffs, now appellants, attacked the constitutionality of House Bill 477 (KRS Chapter 337), passed by the 1974 General Assembly, focusing particularly on section 2 which provides:

“(1) Except as may otherwise be provided pursuant to this Act, every employer shall pay to each of his employes wages at a rate of not less than $1.30 an hour, beginning July 1,1974 increasing to $1.60 an hour, beginning January 1, 1975.”

and section 3 which provides:

“No employer shall employ any of his employes for a work week longer than forty hours, unless such employe receives compensation for his employment in excess of forty hours in a work week at a rate of not less than one and one-half times the hourly wage rate at which he is employed. This provision does not apply to employes of retail stores engaged in work connected with selling, purchasing and distributing merchandise, wares, goods, articles or commodities or to employes of restaurant, hotel and motel operations or to employes as defined and exempted from the overtime provision of the Fair Labor Standards Act in section 213(6) of Title 29, U.S.C.”

The main bone of contention surrounds overtime payments for firefighters. Appellants emphasize the fact that the act places the municipalities in a financial bind, especially since their budgets did not anticipate the increase in pay to the employees. Prior to the enactment of House Bill 477 municipalities were not subject to overtime payments to their employees. KRS 337.010.

Appellants argue first that House Bill 477 violates section 181 of the Kentucky Constitution which provides:

“The General Assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes. * ⅜

In Board of Trustees of P. & F. R. F. v. City of Paducah, Ky., 333 S.W.2d 515 (1960), this court rejected “ * ⅜ ⅜ positively and unequivocally, the theory that a right of local self-government inheres in Kentucky municipalities.” And in the opinion it was made crystal clear that a legislative act which requires a city to make contributions to a pension system for police and fire departments is a matter of general public concern, extending beyond strictly local purposes and therefore not controlled by section 181 which prevents the general assembly from imposing “taxes for the purposes of any county, city, town or other municipal corporation * * ⅜.” (Emphasis added)

If House Bill 477 applied only to firefighters we would have no difficulty in accepting Board of Trustees of P. & F. R. F. v. City of Paducah, supra, as authority for upholding the act. The provisions for minimum wages and overtime payments, however, apply to all employees (with enumerated exemptions) regardless of whether they are engaged in work of state-wide concern or of purely local concern.

It is a well-established rule that portions of a statute which are constitutional may be upheld while other portions are eliminated as unconstitutional. See Stovall v. Gartrell, Ky., 332 S.W.2d 256 (1960); Sanitation Dist. No. 1 of Jefferson County v. Campbell, Ky., 249 S.W.2d 767 (1952); Reynolds Metal Co. v. Martin, 269 Ky. 378, 107 S.W.2d 251 (1937); Berea College v. Commonwealth, 123 Ky. 209, 94 S.W. 623 (1906). KRS 446.090 provides:

“It shall be considered that it is the intent of the general assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the general assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the general assembly.”

Although the statute speaks of “any part” and “remaining parts," we construe the statute as not confining the severability aspect to different literary sentences or paragraphs but as applying it to various subjects in the act. See Stovall v. Gartrell, supra, wherein we upheld an act levying a tax on all retail sales but said that insofar as the act related to taxes on motor fuels it was unconstitutional as violating section 230 of the Kentucky Constitution, and Reynolds Metal Co. v. Martin, supra, wherein we upheld an act placing an income tax on residents of Kentucky although the act was invalid as it applied to federal office holders.

That the legislature intended to have the act apply to municipal workers engaged in work of state-wide concern, even if other municipal employees were excluded, is clear where the act itself, section 12, provides: “If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of the Act and the application thereof, to persons or circumstances shall not be affected thereby.”

The issue then is whether there is any valid reason why the intention of the legislature should not be carried out. We know of none. As stated above, it has been determined previously by this court that firefighters are engaged in work of statewide concern and section 181 of the Kentucky Constitution is not applicable as to them. Since it was the expressed intent of the legislature that if the act was invalid as to some employees it nevertheless would apply to others, we believe the act is applicable to firefighters as well as other municipal employees, not exempt from the act, who are engaged in work of state-wide concern. The only employees who are made parties to the action or who have been singled out in the proceedings are firefighters, thus we are not called on to decide what other municipal employees are covered by the act.

Appellants argue that House Bill 477 violates section 2 of the Kentucky Constitution which provides: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Appellants point out that KRS 95.275 and KRS 95.500 require that city fire departments be divided into three platoons and that “Each platoon shall be on duty for twenty-four (24) consecutive hours, after which the platoon serving twenty-four (24) hours shall be allowed to remain off duty for forty-eight (48) consecutive hours, except in cases of dire emergency.” The result is that the firefighters are on duty from 48 to 72 hours per week, and appellants contend that these statutes, coupled with House Bill 477, place an unconscionable financial burden on the cities. The fact that the statutes when read together might require the municipalities to increase the pay of their employees — indeed that is a natural result contemplated by the act — or the fact that the budgets for the ensuing fiscal year did not include the increase in pay, does not per se constitute the exercise of absolute or arbitrary power over the municipalities. The term “absolute and arbitrary power” can become meaningful only as it is considered in the light of the facts of a particular case. While the evidence in the instant case points to the fact that some of the municipalities might have to “dig deep” to meet the wage increases, it is our opinion that the obligation does not result in absolute and arbitrary power being exercised over them.

Another argument advanced by appellants is that House Bill 477 relates to multiple subjects which are not expressed in the title of the act in violation of section 51 of the Kentucky Constitution. The bill is entitled “AN ACT relating to minimum wage.” They point to the fact that there is nothing in the title about overtime pay. We believe that at the present stage in the development of wage and hour laws, overtime pay is so generally considered a probable adjunct of “minimum wage” that a person would be on reasonable notice that overtime pay might be included in the act. We see no merit in appellants’ further argument that since the prior law exempted municipalities, the title to the present act was insufficient to apprise the municipalities that they were included. We know of no authority in support of the argument.

The argument that House Bill 477 usurps legislative authority of municipalities is untenable. In the absence of a constitutional provision safeguarding it to them, municipalities have no right of self-government which is beyond the legislative control of the state. Callis v. Brown, 283 Ky. 759, 142 S.W.2d 675 (1940). See also Board of Trustees of P. & F. R. F. v. City of Paducah, supra, and Allen v. Hollingsworth, 246 Ky. 812, 56 S.W.2d 530 (1933).

Appellants’ final contention is that the act constituted an invalid delegation of legislative authority under Const, sections 27 and 28. It is insisted that the legislation does not prescribe sufficient standards. Section 4 of House Bill 477 provides:

“Regulations issued by the Commissioner under this Act may include, but are not limited to, regulations defining and governing bona fide executive, administrative or professional employes; regulations governing learners, apprentices, handicapped workers, sheltered workshop employes, and students, regulations governing outside salesmen; bonuses; part-time rates; special pay for special or extra work; allowances as part of the wage rates applicable under this Act for board, lodging and gratuities; other facilities or services furnished by employers and used by employes; and other special items usual in a particular employer-employe relationship.”

Of necessity in legislation of this nature the administrative agency must be given wide discretion. Cf. Butler v. United Cerebral Palsy of Northern Ky., Inc., Ky., 352 S.W.2d 203 (1961). We do not believe the standards in the present instance were inadequate or overly permissive. Regulations promulgated by the commissioner as well as other acts of the commissioner, of course, are subject to judicial review. Section 5 of House Bill 477.

The judgment is affirmed insofar as it upholds the constitutionality of House Bill 477 as it relates to firefighters and other municipal employees engaged in work of state-wide concern.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, STEPHENSON and STERN-BERG, JJ., concur.

      . This court has construed “freemen” to include municipalities. See Sanitation Dist. No. 1 v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995 (1948).


author: STERNBERG, Justice.

text:
    THREE RIVERS ROCK COMPANY, Appellant, v. REED CRUSHED STONE COMPANY, INC., Appellee.
    Court of Appeals of Kentucky.
    Nov. 14, 1975.

      Henry O. Whitlow, Waller, Threlkeld & Whitlow, Paducah, Balch, Bingham, Baker, Hawthorne & Williams, Birmingham, Ala., for appellant.
    Raymond B. Dycus, Richard H. Peek, Smithland, John C. Lovett, Benton, for ap-pellee.
   STERNBERG, Justice.

This is an action for a specific performance of a written option for the sale and purchase of an easement. Appellee’s resistance to the action was made on five principal grounds, to-wit:

1. Violation of the rule against perpetu-ities (KRS 381.216);
2. Violation of the common-law rule against unreasonable restraint on alienation;
3. Lack of consideration;
4. Prior abandonment of the rights of grantees; and
5. The provisions of the instrument in question are so vague, indefinite and uncertain as to void the instrument.

The circuit judge determined that the option was void as being in violation of the common-law rule which prevails in this state against direct and unreasonable restraint on alienation. Of the other four defenses, one was discussed by the trial court but none was decided.

Appellant and appellee are both engaged in competitive limestone quarry operations. On and prior to December 19, 1961, Charles R. Jones owned a large tract of land on the north side of the Cumberland River, which was at the time, and had been for several years prior thereto, used as a limestone rock quarry. To the west of the Jones tract and also on the north side of the Cumberland River is a tract of land which was owned by James Norman Tramble and his wife. The Jones and Tramble tracts are separated by a farm owned by third party. There is a narrow haul road that runs parallel with and adjacent to the river. A 30-foot blacktop county road adjoins both tracts on their north. Access to both of these tracts can be had from the county road and by using the haul road along the river. Stone quarried from the Jones tract was loaded on barges from a facility to which access is had by crossing the haul road.

On December 19, 1961, the Trambles executed and delivered to Jones an option to purchase an easement and right of way over their lands to the Cumberland River. The option was lodged for record in the office of the county court clerk of Livingston County, Kentucky, on December 21, 1961. In 1962 Jones leased his quarry site to appellant, who continued to operate the quarry and made plans to expand the operations. On March 15, 1968, the option was assigned to appellant and on the same date the assignment was recorded in the office of the Livingston County Court Clerk. On March 20, 1968, the Trambles sold and conveyed their tract of land to appellee Reed Crushed Stone Company, Inc. This deed too was duly recorded in the office of the Livingston County Court Clerk.

On November 5, 1968, appellant gave written notice to appellee of its election to exercise the option, tendered payment of the consideration, and thereafter received written notice of appellee that the option was not being recognized. Thereupon, suit was filed for a specific performance.

The option provides, inter alia, that:

“ * * * James Normie Tramble and his wife, Fannie Tramble, of Livingston County, Kentucky, hereby grant to Charles R. Jones, his Executors, Administrators and Assigns the perpetual option to purchase an easement and right of way for a passway over and across the lands of the grantors located on the Cumberland River in Livingston County, Kentucky, * * *.
“The approximate location of said easement, passway and right of way shall extend from the property line of the grantors to a point on the bank of the Cumberland River to be selected by the grantee.
“ * * * The grantee is further granted the right to use the river bank and frontage along the property of grantors for wharfage purposes for barges and river craft, for the purpose of transporting limestone, quarry products, supplies, materials, equipment and other items of freight, to and from the Cumberland River, and over and across said right of way; and the grantee is further granted the right to use not exceeding two acres of land to be laid off along the river bank extending back therefrom not more than two hundred (200) feet for wharfs, docks, buildings, structures, machinery and equipment to be used in the loading and unloading of limestone, quarry products, supplies, materials, equipment and other items of freight.
“Grantee may exercise this option at anytime by giving the undersigned- written notice through the U. S. Registered mails to the grantors * * *. In the event the grantee actually enters upon the premises of grantors, after the exercise of said option, with the intention of using the passway or right of way for the purposes permitted he shall pay to the grantee the sum of Fifty and No/100 ($50.00) Dollars per month, in advance, for each month or part of a month during which said easement and the loading facilities covered thereby are actually used.”

On this appeal appellant contends that the option is not a direct unreasonable restraint on alienation; that, at most, it may be in conflict with the law against perpetuities. On the other hand, appellee sees the case as one involving an unreasonable restraint on alienation, which the trial court found to exist and upon which appellant was denied relief. The practical difference between voiding the option because (1) it is in violation of the law of perpetuities and (2) it is a direct unreasonable restraint on alienation, is that by the former, it is enforceable for the first 21 years (KRS 381.216). Since appellant has exercised its right to purchase within this 21 years, it would be entitled to specific performance of the option. On the other hand, if the action of the lower court is upheld, then and in that event the option is void and appellant is not entitled to specific performance.

The common-law rule against restraint on alienation was designed to prevent the taking from the owner of the power to alienate property. The common-law rule against perpetuities was designed to prevent interests from being created in the too distant future.

This court recognizes the existence of these separate and distinct rules of law. Caudle v. Smither, Ky., 427 S.W.2d 227 (1968); Gilbert v. Union College, Ky., 343 S.W.2d 829 (1961); Robertson v. Simmons, Ky., 322 S.W.2d 476 (1959). We further recognize the confusion which has existed in an effort to distinguish and apply the rules to options. Robertson v. Simmons, supra. The time has come, as a matter of fact it is overdue insofar as options are concerned, when this court should clarify the situation.

We have stated that restraints against alienation are not favored in law. Cahill v. Pelzer, 204 Ky. 644, 265 S.W. 32 (1924). In Newsom v. Barnes, 282 Ky. 264, 138 S.W.2d 475 (1940), we held that it is the policy of this state to make all interests in or claims to real estate the subject of sale or devise by will. As a further exemplification of the right of a person to be free and uninhibited in the disposition of his property, in Goodloe’s Trustee v. Goodloe, 292 Ky. 494, 166 S.W.2d 836 (1943), we held that where one of two permissible constructions of an ambiguous will renders it violative of the rule against perpetuities and the other does not, the former will be rejected and the latter adopted.

The common-law rule against per-petuities found its way into the statutes as KRS 381.220. Robertson v. Simmons, supra; Fidelity & Columbia Trust Co. v. Tiffany, 202 Ky. 618, 260 S.W. 357 (1924). At the regular session of the 1960 Kentucky General Assembly, KRS 381.220 was repealed and KRS 381.215 and KRS 381.216 were enacted. (Ch. 167, Acts 1960). These latter two statutes have been argued both in support of and in opposition to the judgment of the circuit court. These statutes relieve the harshness of the prior law against perpetuities and substitute the more relaxed rule of “wait and see”. The “wait and see” doctrine is a rule which permits consideration of events occurring after inception of the instrument which are relevant to the vesting of a future interest, so that if the contingency upon which the interest is limited actually occurs within the period of the rule, the interest is valid. 61 Am.Jur.2d, Perpetuities, § 26.

The free alienation of the fee simple title to real property is the right that is sought to be protected by both statutes against perpetuities and the restriction against unreasonable restraint on alienation. The trial court was of the opinion that Robertson v. Simmons, supra, was the controlling law of the case; accordingly, it found the option to be a direct unreasonable restraint on alienation rather than subjecting it to the rule against perpetuities.

In an effort to bring clarity and consistency out of utter confusion, we need to examine prior enunciations and understand the principles for which they stand and the reasoning that brought forth the result.

An option has long been recognized as not a sale but a right to exercise a privilege. Cawthon v. McAlister, 217 Ky. 551, 290 S.W. 316 (1927); Carter v. Frakes, 303 Ky. 244, 197 S.W.2d 436 (1946); Miller v. Hodges, 308 Ky. 655, 215 S.W.2d 99 (1948).

In Coley v. Hord, 250 Ky. 250, 62 S.W.2d 792 (1933), this court held that a written option in favor of a grantor and his heirs to purchase land from the grantee and his heirs at any time either grantee or his heirs desired to sell and grantor or his heirs desired to buy was not a violation of the rule against perpetuities. We reasoned that the option was “susceptible of execution according to its own terms at any time Coley or his heirs desired to sell the land and Hord and his heirs desired to purchase it. This may have happened at any time and it did not constitute a limitation or condition forbidding the selling and conveying of the land for a longer period than the continuance of a life or lives in being at the time of its execution, and 21 years and 10 months thereafter.”

In Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568 (1944), we held that a provision in a deed which provided that the conveyance was on the condition that should the party of the second part desire to sell or convey away the tract of land, then Hoskins was to have the option of becoming its purchaser, was void as against perpetuities, as expressed in KRS 381.220. We said:

“The rule against perpetuities is not to be tested by actualities, but by possibilities. Thus, if it is at all possible for a person, not in existence twenty-one years and ten months after the expiration of a life or lives in being at the time of the creation of the estate, to fall heir to the equitable interest in the property limiting the absolute power of alienation, such limitation is void. * * * ”

Caudle v. Smither, supra.

In Maddox the case of Coley v. Hord, supra, was analyzed and specifically overruled. We assumed, without deciding, that the option was not personal and was susceptible of inheritance.

Professor Dukeminier, in his work “Kentucky Perpetuities Law Restated and Reprinted”, 49 K.L.J. 1 (1960), p. 119, in analyzing the Maddox case, says:

“ * * * The arguments of the Court, reduced to a syllogistic form, may be briefly stated as follows: first, interests in land susceptible of inheritance, since they go on from generation to generation, may cause remoteness in vesting; second, assuming this option to be an interest in land susceptible of inheritance, there is a possibility of remoteness in vesting; third, since there is a possibility of remoteness in vesting, the option violates the rule against perpetuities and it is unnecessary to determine whether or not it is an interest in land susceptible of inheritance. This is faulty logic on its face. The way the propositions are set up, the possibility of remoteness depends on the provision being construed as an interest in land susceptible of inheritance; hence, the last part of conclusion, that it is unnecessary to decide whether or not the option is the required type of interest in land, contradicts the second premise. It may well be said that the Court means that any interest, personal or real, which might create a possibility of remoteness may be held void as a violation of the rule against perpetuities, but this is certainly not made clear by the opinion.”

In Robertson v. Simmons, supra, we were faced with a written contract between two named persons which granted either one of them the option to purchase certain designated land from the other. J. P. Stilley, in whose name the title was recorded, died. Thereafter, the other person (Robertson) sought to exercise his option and force specific performance of the contract by Stil-ley’s heir. The trial court was of the opinion that,

“ ‘The general rule is that an option given for a valuable consideration does not lapse upon the death of the optioner or optionee, and is binding upon his successor in title, 91 C.J.S. 867. This being true, the right to exercise this option could pass from generation to generation until finally it might vest in some one coming into being after the expiration of 21 years and 10 months after the lives in being at the time of the execution of the contract. Thus, it violates the rule against perpetuities,’ ⅜ ⅞ * ”

and entered judgment holding the option void. After a lengthy discussion of the troublesome question of whether the statute against perpetuities applied to vested estates, this court said:

“In the case at bar, the option was also unlimited as to time and thus the suspension of the power of Stilley or his heirs could have been extended, if we take the literal terms of the option, during the entire life of Robertson or perhaps even the lives of his descendents. We have reached the conclusion that such a suspension of the power to alienate a vested estate is unreasonable, not because it might be an inheritable right which would pass to Robertson’s descendants during several generations, but because even in his lifetime it would be possible for the restraint to endure for too long a period.”

Gilbert v. Union College, supra, involved the application of the 1960 perpetuities act to options retained in deeds or contracts for the sale of residential building lots. The trial court found, and we affirmed, that the options did not violate the rule against unreasonable restraint or the rule against per-petuities. Writing for the court, Justice Milliken said:

“ * * * The ‘unfortunate confusion’ in this field, as commented upon by Judge Moremen in Robertson v. Simmons, Ky.1959, 322 S.W.2d 476, arising under former Section 381.220 governing restraints on alienation (now repealed), we believe will be avoided by new Section KRS 381.216, which substitutes actual events as the test for determining the validity of an interest rather than the metaphysical possibilities doctrine which dreamed up the ‘fertile octogenarian’, the ‘unborn widow’ and other possibilities as just reasons for invalidating interests in property. * * * ”

We have analyzed the legal principles involved and now turn our attention to the reasoning that was used in their application.

In Coley v. Hord, supra, we recognized a restraint on alienation and the possibility of future vesting by the use of the word “heirs” in the option. We held that irrespective of the use of the word “heirs” the option was susceptible of execution at any time and was not, therefore, a violation of the rule against perpetuities.

In Maddox v. Keeler, supra, we recognized a restraint on alienation, even though the word “heirs”, or words of like import, were not used in the option, by accepting the doctrine of possibility of remoteness in vesting, which voided the instrument as a violation of the rule against perpetuities.

In Robertson v. Simmons, supra, we reasoned that a personal option was a vested estate which is subject to the possibility of remoteness in vesting. We there held that the remoteness in vesting did not make the option subject to the rule against perpetu-ities but did make it subject to the rule against unreasonable restraint on alienation.

In Gilbert v. Union College, supra, which was decided after the repeal of KRS 381.220 and the enactment of KRS 381.215, we reasoned that options to purchase property did not violate the rule against unreasonable restraint on alienation or the rule against perpetuities.

We will attempt to give more than lip service to Justices Milliken’s and Moremen’s concern for the confusion that has arisen in this area of the law. The 1960 perpetuities act was meant as a turning point in construing not only restraints on alienation of estates but the possibility of future vesting of estates.

In speaking to the purpose, we said in Gilbert v. Union College, supra:

“ * * * In any event, the new standard should relieve somewhat the hesitation which has haunted both the bench and bar in dealing with the complex problems in this area of the law. * * * ”

In our effort to bring clarity out of confusion, we hold that an option, whether it be an ordinary option or a preemptive option, creates an interest which is subject to vesting at a future time. We are of the opinion that options, whether they be ordinary, as in this case, or preemptive, created after the effective date of the 1960 perpetu-ities act are not subject to the rule against direct restraint on alienation but are subject to the rule against perpetuities.

The option in the instant case was executed subsequent to the effective date of the 1960 perpetuities act and, therefore, would not be governed by the rule against direct unreasonable restraint on alienation, but would be governed by the rule against perpetuities. We are further of the opinion that the appellant is entitled to the benefit of the “wait and see” doctrine (KRS 381.-216), since it sought to enforce the option within twenty-one years after its execution.

All cases heretofore decided by this court which are in conflict herewith are overruled.

Having so determined, we must next look at the other issues. The trial court did not overlook these other issues, but purposely did not decide them. Since the trial court did not pass on their efficacy, they are not before us for consideration. Therefore, we make no determination of their propriety. Maynard v. Maynard, 178 Ky. 478, 199 S.W. 26 (1917).

The judgment is reversed.

All concur, except CLAYTON, J., who did not sit.

      . For a brief and concise statement of the historical development of the law against perpetuities, see 61 Am.Jur.2d. Perpetuities, § 6.