author: STEPHENSON, Justice. KEITH, Justice,

text:
    SIGNAL OIL & GAS COMPANY et al., Appellants, v. UNIVERSAL OIL PRODUCTS et al., Appellees.
    No. 7818.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 13, 1977.
    Rehearing Denied Feb. 3, 1977.

      D. J. Holcombe, Houston, for appellant.
    Joseph D. Cheavens, Houston, for appel-lee, Universal Oil Products.
    David J. Beck and Arnold A. Vickery, Fullbright & Jaworski, Houston, for appel-lee, Procon, Inc.
    Les Cochran, Houston, for appellee, Al-corn, Inc.
   STEPHENSON, Justice.

Signal Oil & Gas Co. (Signal) as plaintiff, brought this action for damages against Universal Oil Products Company (UOP), Procon, Inc. (Procon) and Alcorn Combustion Company (Alcorn) as defendants. Trial was by jury and judgment was rendered on the verdict that plaintiff take nothing as to all three defendants.

Signal and UOP entered into a contract for the construction of a refinery unit known as an isomax unit at the Signal refinery. UOP employed Procon to assemble the isomax unit. Procon ordered a part of the unit called a reactor charge heater from Alcorn. Alcorn provided the heater as a component part of the total refinery unit. Procon assembled the heater at the refinery site. This isomax unit was started up about the middle of February, 1968. Then on April 26, 1968 one of the tubes in the heater ruptured causing the fire and resulting damages for which this suit was brought.

In the center of this heater were gas burners which were surrounded by steel tubes through which the oil flowed. The design of the heater called for guides or braces for the tubes at about their mid point. The specifications called for the guides to be anchored by stainless steel bolts called 25-12 bolts. About the first of March 1968, it was discovered that some of the middle guides had fallen to the floor of the heater, and the tubes began to bow inward. One of the bolts was fished out, and it was discovered that B-7 bolts had been used and they were not designed to withstand high temperatures.

Signal made two basic claims as to the cause of the rupture. First, that the inward bowing of the tubes, because the tube guides fell off, placed the tubes too close to the burner, causing them to rupture. The second claim was that scaling or coke accumulation had collected inside of the tubes. The jury went along with the first claim as to the cause of the rupture.

Signal’s pleadings alleged causes of action based upon negligence, strict liability and warranty. Evidence was heard and the case was submitted to the jury on all three theories.

Negligence

The jury found that Alcorn was negligent in failing to supply Procon with 25-12 bolts and that such negligence was a proximate cause. The jury also found Procon was negligent in using B-7 bolts in erecting the heater and that negligence was a proximate cause. Signal has conceded in its brief that the judgment as to UOP should be affirmed so the issues pertaining to UOP will not be discussed. Other findings by the jury are that Signal was negligent in not shutting down the heater before the fire which was a proximate cause. Also, that Signal was warned of the hazard before the fire and failed to heed that warning which was negligence and a proximate cause. It is agreed by all concerned that Signal cannot recover upon its negligence theory because of the jury findings as to contributory negligence. In its brief, Signal makes the statement that it does not question the sufficiency of the evidence to raise the contributory negligence findings.

Strict Liability

Texas adopted the principles embodied in section 402A of the American Law Institute Restatement (Second) of Torts (1965) in the companion cases, McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1967) and Shamrock Fuel & Oil Sales Co. v. Turks, 416 S.W.2d 779 (Tex.1967). This section provides in part that the seller of a product in a defective condition unreasonably dangerous to the user or his property is subject to liability under certain specified conditions. The general effect of adopting this section is to relieve a claimant of the burden of proving negligence and privity.

This jury found that the reactor charge heater as shipped by Alcorn was defective but failed to find that such defective condition was a producing cause of the tube rupture. The jury also found the reactor charge heater as erected by Procon was defective but failed to find that defective condition was a producing cause of the tube rupture.

Signal argues that it is entitled to judgment against Alcorn and Procon on the basis of jury findings as to strict liability. Even though the jury failed to find “producing cause” as to the “defective” issues, Signal relies upon the jury findings as to “proximate cause” to make out its cause of action. As stated above, the jury found that Alcorn was negligent in failing to supply Procon with 25-12 bolts and that such negligence was a proximate cause; also, that Procon was negligent in using B-7 bolts and that was a proximate cause. Then Signal’s claim is that taking these two “proximate cause” issues along with the two issues finding a defective condition make a case of strict liability. In this connection the argument is made that “proximate cause” includes all the elements of “producing cause” and more. That “cause in fact” is a part of both, and “proximate cause” also includes “forseeability.” Also, the argument is made that the sequence of the issues is not important.

Signal cites Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420, 421 (Tex.Civ.App.—Waco 1970, no writ), in support of this argument. The jury answered the first three issues as follows:

“1. The failure of defendant to design the machine with an extended chute was negligence.
“2. Such failure was a proximate cause of plaintiff’s injury.
“3. The failure of defendant to design the machine with an extended chute, rendered said machine not reasonably fit for the purpose for which it was intended.”

No “producing cause” issue was submitted.

We have not been cited, nor have we found, cases holding that the special issues must be in a certain sequence. We have come to the conclusion that the arrangement of the issues is not important as long as the sense and meaning of the results are clear.

First, as to Alcorn, the negligence and proximate cause issues refer to the failure to supply 25-12 bolts. However, the jury was not asked why the heater shipped by Alcorn was defective. Then, as to Pro-con, the negligence and proximate cause issues refer to the use of B-7 bolts, and again the jury was not asked why the heater as erected by Procon was defective. In fact, the only issue submitted to the jury as to why the heater was defective, inquired about the formation of the deposits in the heater which the jury answered in the affirmative. Signal maintained the heater was defective for two reasons: the use of the B — 7 bolts, and the accumulation of deposits in the tubes.

For these reasons we do not believe it is possible to definitely ascertain that the defect as found by the jury was the same condition as found to be negligence and proximate cause issues submitted as to either Alcorn or Procon. The case before us is not like Pizza. Inn, Inc. v. Tiffany, supra, in which both the negligence issue and the strict liabilities issue used the same wording (the failure of the defendant to design the machine with the extended chute . . ), and there could be no doubt as to the findings by the jury. These points of error are overruled.

Warranty

Tex.Bus. & Comm.Code Ann. § 2.314 (1968) provides for an implied warranty of fitness or suitability. As stated above, this was one of the theories of recovery sought by Signal. As to both Alcorn and Procon, the jury found the heater was not reasonably suited for its intended use or purpose. And, in both instances, the jury found such suitability was a proximate cause of the tube rupture. Signal contends it is entitled to judgment on these issues because contributory negligence is not a bar to its recovery.

In the recent case of Lanphier Const. Co. v. Fowco Const. Co., 523 S.W.2d 29, 41 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.), Justice Nye set out as follows the two basic facts which must be proved before an implied warranty of fitness arises:

“First, Servtex at the time of contracting with Fowco must have known or had reason to have known the particular purpose for which these goods were required. Parks v. Glidden Company, 433 S.W.2d 445 (Tex.Civ.App. — Texar-kana 1969, writ ref’d n. r. e.). The ‘particular purpose’ envisions a specific use by the buyer which is peculiar to the nature of his business.
“Secondly, Fowco must show that it relied on Servtex’s skill and/or judgment to select or furnish suitable goods. Brown v. Asgrow Seed Company of Texas, 379 S.W.2d 412 (Tex.Civ.App. — San Antonio 1964, writ ref’d n. r. e.); Craftsman Glass, Inc. v. Cathey, 351 S.W.2d 950 (Tex.Civ.App. — Amarillo 1961, no writ).”

The record conclusively shows that both Alcorn and Procon knew the particular purpose for which their products were required. Alcorn and Procon were likewise cognizant of Signal’s reliance on them to provide goods suitable for use as part of an isomax unit.

This being so, we are called upon to decide whether the jury’s findings of unsuitability and proximate cause in re the goods furnished by Alcorn and Procon rendered these defendants liable to Signal. Defendants contend that the jury’s findings of negligence as to Signal constitute a bar to its recovery. We agree.

Recoverable damages of the kind sought by plaintiff are provided for in Tex.Bus. & Comm.Code Ann. § 2.715(b)(1) and (2) (1968) as follows:

“(b) Consequential damages resulting from the seller’s breach include
(1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(2) injury to person or property proximately resulting from any breach of warranty.” (Emphasis added)

In a Committee Comment to § 2.715 (1968) of our code, however, we find:

“5. Subsection (2)(b) states the usual rule as to breach of warranty, allowing recovery for injuries ‘proximately’ resulting from the breach. Where the injury involved follows the use of goods without discovery of the defect causing the damage, the question of ‘proximate’ cause turns on whether it was reasonable for the buyer to use the goods without such inspection as would have revealed the defects. If it was not reasonable for him to do so, or if he did in fact discover the defect prior to his use, the injury would not proximately result from the breach of warranty.” (Emphasis added)

Here, plaintiff was warned by defendants of the risk of continuing to use the reactor heater, but failed to heed the warning and continued to use the product until the fire and resultant damage occurred. The jury found that plaintiff’s failure to heed the warning was both negligence and a proximate cause of the fire.

We agree with the general rule stated in L. Frumer and M. Friedman, 2 Products Liability § 16.01[4] at 3-39 (1976): “Contributory negligence in the sense of an unreasonable use of a product after discovery of the defect and the danger is a defense.” See also Texsun Feed Yards, Inc. v. Ralston Purina Company, 447 F.2d 660, 668-669 (5th Cir. 1971).

Signal has an alternate point of error asking that the case be remanded because of a conflict in the findings of the jury as to producing cause and proximate cause. This point is overruled.

The jury’s negative answer as to the producing cause issue upon which Signal had the burden of proof is nothing more than a “failure to find” and is not in conflict with the affirmative answer to the proximate cause issue. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966).

Signal also has points of error that the failure of the jury to find in the affirmative as to the producing cause issues is contrary to the great weight and preponderance of the evidence. In passing upon these points we consider the entire record. Even though there is evidence which would have supported affirmative findings as to those issues, we do not find the jury answers to be clearly wrong or manifestly unjust. These points are overruled.

AFFIRMED.

KEITH, Justice,

concurring.

While I concur in the affirmation of the judgment of the trial court, I do not join in the language used in discussing the holding in Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420 (Tex.Civ.App.—Waco 1970, no writ).


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    Helen Marie BEGLEY (Warren), Appellant, v. Jeffrey J. KILBURN, an infant, suing by and through his next friend, Warren Kilburn, et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 29, 1976.
    Rehearing Denied Feb. 25, 1977.
    W. R. Patterson, Jr., Landrum, Patterson & Dickey, Lexington, for appellant.
    John M. Coy, Coy & Coy, Richmond, Mart V. Mainous, Irvine, for appellees.
   STEPHENSON, Justice.

This appeal is from an order of the Estill Circuit Court declining to set aside a default judgment. We reverse.

The appellant and infant appellee were involved in a traffic accident. The complaint filed by appellee alleged appellant “is a non-resident of the Commonwealth of Kentucky, residing at 6777 Winkler Road, Apt A, 238, Fort Meyers, Florida 33901” and that by virtue of KRS 188.030, Kentucky’s nonresident motorist statute, service of summons should be had upon the secretary of state.

Summons was issued by the circuit court clerk, directed to the secretary of state. By registered mail, the secretary of state directed notice to the appellant at the Florida address given in the complaint. The letter was returned marked “unclaimed.” After the time for answering elapsed, appellees filed a motion for default judgment and mailed a copy of the motion to the same address. A default judgment was entered, taking the allegations of the complaint as true, and later the case was submitted to a jury for determination of damages. The jury returned a verdict of $15,768.50 against the appellant.

About twenty-two days later, appellant filed motion to set aside the default judgment and for leave to file answer.

The tendered answer and supporting affidavits state that the appellant has a mérito-rious defense. A copy of the state police officer’s report is filed showing the Florida address given in the complaint followed by “(R # 2 Bybee, Ky).” Appellant’s affidavit states she advised the officer that she resided at Route 2, Bybee, Kentucky, and further states that at the time of the accident, she was residing with her mother at this Kentucky address. The affidavit further states the appellant had at the time the secretary of state attempted to give notice moved from the Florida address, as shown on her driver’s license and noted in the state police officer’s report, to another address in the same city.

In all, appellant’s affidavit refers to five different addresses during the course of these proceedings.

We are of the opinion that the ap-pellees erroneously ignored the address “R # 2, Bybee, Ky.” which immediately followed the Florida address in the state police officer’s report. There is nothing in the record to indicate the appellees had any knowledge of the appellant’s address other than this officer’s report. Where two addresses are given, one out-of-state and one within the state, it is incumbent upon the plaintiff to direct summons to the local address as well as invoke the provisions of the nonresident motorist statute and direct summons to the secretary of state for notice to be given to the out-of-state address.

Appellees argue that they would be unable to locate appellant at any one of the out-of-state addresses set out in appellant’s affidavit. This argument misses the point. “R # 2, Bybee, Ky.” is a local and not a nonresident address. Appellees argue that the appellant’s address is the Florida address on the officer’s report and that “for some reason known only to the officer he noted on the accident report ‘R # 2, Bybee, Ky.’ ” We are of the opinion tliat the only inference to be drawn from the officer’s report is that this address was given to him by the appellant and that the appellees are charged with the duty of attempting to reach appellant at this address. Whether, in fact, appellant would have received a summons at the address is problematical in view of the frequent changes of address by appellant, but we are not disposed to say that it could not be accomplished. At least the appellees were required to make an effort to so do.

Service under the provisions of the nonresident motorist statute is a substitute for personal service upon which a personal judgment can be obtained. We consider this holding to be consistent with our opinions in Hirsch v. Warren, 253 Ky. 62, 68 S.W.2d 767 (1934), and Hertz’ You Drive It Yourself System v. Castle, Ky., 317 S.W.2d 177 (1958), requiring that the nonresident’s correct address be furnished to the secretary of state. Ordinarily a party who seeks to invoke the provisions of the nonresident motorist statute is entitled to rely on the accuracy of the address given to a police officer conducting an investigation of an accident. However, he may not, as here, select the nonresident address and ignore the local address. Cf. Annot., 138 A.L.R. 1464, 1476 (XII).

The judgment is reversed with directions to set aside the default judgment and grant a new trial.

All concur.


author: LUKOWSKY, Justice. REED, Chief Justice JONES, Justice STERNBERG, Justice

text:
    COMMONWEALTH of Kentucky ex rel. Robert F. STEPHENS, Attorney General, Movant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Respondent.
    Supreme Court of Kentucky.
    Dec. 3, 1976.

      Robert F. Stephens, Atty. Gen., James E. Rogers, Jr., Laura L. Murrell, Asst. Attys. Gen., Morris E. Burton, Frankfort, for mov-ant.
    Lively M. Wilson, James G. Apple, Stites, McElwain & Fowler, William S. Connolly, Gen. Atty., South Central Bell Tel. Co., Louisville, Norman C. Frost, Vice President and Gen. Counsel, South Central Bell Tel. Co., Birmingham, Ala., W. M. Booker, Jr., Gen. Sol., and John P. Fons, Sol., Birmingham, Ala., Martin R. Glenn, Louisville, for respondent.
   GRANTING RELIEF PURSUANT TO CR 65.07

LUKOWSKY, Justice.

This cause is before the court on motion of the Attorney General for relief from a temporary injunction granted by the Franklin Circuit Court which restrained enforcement of a rate order made by the Public Service Commission prescribing telephone rates for South Central Bell.

On March 14, 1975, South Central Bell filed with the Commission, pursuant to KRS 278.180, notice that it proposed to increase its rates and charges for various services rendered by it in Kentucky effective April 3, 1975, to produce an additional $33 million in revenues on an annual basis.

Pursuant to the authority granted to the Commission in KRS 278.190, an order was entered suspending the proposed rates for a period of five (5) months from April 3,1975, and thereafter the Commission undertook an investigation of the proposed rates. Hearings were begun on April 22,1975, and were not completed until September 17, 1975. The Commission not having entered an order within the five months suspension period, South Central Bell, on September 3, 1975, and pursuant to KRS 278.190, placed its proposed tariffs into effect, which tariffs are still being charged.

The Commission, by order entered December 31, 1975, denied the schedule of rates which had been placed in effect by South Central Bell and, instead, directed South Central Bell to make effective rates designed by the Commission to generate only an additional $15 million in revenues on an annual basis. Further, the Commission ordered South Central Bell to refund all rates and charges which had been collected since September 3, 1975, in excess of those authorized by the aforesaid order.

The Commission, in its rate order of December 31, 1975, found that, “a return of 8.95% on Net Investment of $394,945,000 will produce a return of 11% on Equity which will be sufficient to permit Applicant to maintain its financial integrity and raise the required capital to expand and provide adequate service in its service area.” (Emphasis supplied.) The Commission further found in that same order:

“(1) the rates set out in Appendix ‘B’ (those fixed by the Commission) attached hereto are the fair, just and reasonable rates and said rates will produce sufficient revenues to permit the Applicant to pay its operating expenses, service its debt, pay a reasonable dividend on its stock and have a reasonable amount for its surplus;
(2) that the return produced by the revenues authorized herein will permit the Applicant to obtain capital at reasonable cost so that it may continue to expand and improve its service to the public it is obligated to serve;
(3) that the proposed schedule of rates for intrastate telephone service proposed by the Applicant and now being charged would produce an excessive return

On January 9, 1976, South Central Bell filed an appeal in the Franklin Circuit Court against the Commission under KRS 278.410, contesting the validity of the order of the Commission dated December 31, 1975. The complaint alleged that the rates ordered by the Commission were unjust, unlawful and confiscatory, and would not produce the rate of return which the Company found to be the minimum required by the Company. The Commission filed an answer denying the allegations of the complaint. The Attorney General of Kentucky and the City of Louisville were permitted to intervene and have filed answers as intervening defendants.

South Central Bell kept the rates which had previously been instituted in effect pending a final determination of the validity of the Commission’s order by the Franklin Circuit Court.

The Franklin Circuit Court, on March 2, 1976, sustained motions of the Commission and intervening defendant, the Attorney General, to require South Central Bell to cease immediately collecting rates in excess of those rates allowed by the Commission. However, that order was set aside on March 22, 1976.

On March 4, 1976, South Central Bell filed a motion before the Franklin Circuit Court for a temporary injunction to stay the operation and enforcement of the Commission’s order of December 31, 1975, pending a final judgment on the merits of the appeal of the order. The grounds stated for such motion were (a) that the Commission’s order was arbitrary, unjust, unlawful, and unreasonable; confiscatory under the Fourteenth Amendment to the Constitution of the United States and Sections 2, 13 and 242 of the Kentucky Constitution; and a denial of equal protection of the laws under said Fourteenth Amendment; (b) the order would result in immediate and irreparable injury, damage and loss and (c) the rates being collected were subject to refund with interest if the Commission’s order were sustained and thus South Central Bell’s customers would sustain no injury by the issuance of a temporary injunction. Affidavits were filed in support of said motion.

A hearing on the motion for temporary injunction was held by the Franklin Circuit Court, on March 22, 1976. The only witnesses to testify at that hearing were Messrs. E. Q. Faust and W. J. Lester of South Central Bell in support of the motion for a temporary injunction. There was no refutation by any witnesses of the Commission or the Attorney General of the fact that the excess revenues would be irretrievably lost to the Company if the injunction did not issue.

On March 31, 1976, the Franklin Circuit Court sustained the motion of South Central Bell and issued a temporary injunction enjoining and restraining the Commission from enforcing the terms of the December 31, 1975 rate order. The circuit court also ordered that the rates being charged by South Central Bell “shall remain subject to refund as provided by the Commission’s order to the extent such rates are not allowed on final determination of this action.”

In the last analysis the action of the circuit court is based on its finding:

“6. The Company will suffer immediate loss unless enforcement of the Commission’s order is restrained pending a final determination of this matter, in that the Company will be permanently deprived of revenues from the rates finally allowed, to the extent such rates may exceed the rates prescribed by the Commission because such rates could not be retroactively collected prior to such final determination.”

and its conclusion:

“4. The Company has no adequate remedy of law, and the equities favor granting the injunctive relief requested, in that the Company otherwise will be without a remedy if it prevails on the merits, but if the Commission’s order is sustained, all rates collected in excess of those prescribed by the Commission will be subject to refund in accordance with the terms and conditions prescribed by such order.”

If we extend the rationale of the circuit court to its ultimate conclusion, we find that in every case in which a utility is either awarded a rate increase less than it sought or directed to make a rate reduction, it is entitled to charge the higher rate, subject to refund, until all appeals are exhausted. We are constrained to ask, “Do constitutions require or did the legislature intend such a result?”

The federal and state constitutions protect against the confiscation of property, not against a mere reduction of revenue. South Central Bell Telephone Co. v. Louisiana Public Service Commission, 256 La. 497, 236 So.2d 813 (1970). A confiscatory rate is one that is unjust and unreasonable. Rates are non-confiscatory, just and reasonable so long as they enable the utility to operate successfully, to maintain its financial integrity, to attract capital and to compensate its investors for the risks assumed even though they might produce only a meager return on the so-called “fair value” rate base. Federal Power Commission v. Hope Natural Gas Co. 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1943). By long standing usage in the field of rate regulation the “lowest reasonable rate” is one which is not confiscatory in the constitutional sense. Assuming that there is a zone of reasonableness within which the legislature or its designee is free to fix a rate varying in amount and higher than a confiscatory rate it is also free to decrease any rate which is not the “lowest reasonable rate”. Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942).

Ratemaking is a legislative function and the power vested in the legislature to make rates may be exercised by it either directly or through some appropriate agency. L. & N. Railroad Co. v. Garrett, 231 U.S. 298, 34 S.Ct. 48, 58 L.Ed. 229 (1913). In KRS Chapter 278 our legislature delegated the power to fix rates in cases such as this to the Public Service Commission and provided for judicial review. KRS 278.390 provides in part:

“Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in the order, or until revoked or modified by the commission, unless the order is suspended, or vacated in whole or in part, by order or decree of a court of competent jurisdiction.”

KRS 278.410 provides in part:

(1) “ . . . any utility affected by an order of the commission may . bring an action against the commission in the Franklin Circuit Court to vacate or set aside the order or determination on the ground that it is unlawful or unreasonable.
(3) “Injunctive relief may be granted by the circuit court in the manner and upon the terms provided by law."

KRS 278.430 provides:

“In all trials, actions or proceedings arising under the preceding provisions of this chapter or growing out of the exercise of the authority or powers granted to the commission, the party seeking to set aside any determination, requirement, direction or order of the commission shall have the burden of proof to show by clear and satisfactory evidence that the determination, requirement, direction or order is unreasonable or unlawful.’’

It is as obvious as the acropolis of Athens that an order of the commission continues in force until revoked or modified by the commission or unless suspended or vacated in whole or in part by the Franklin Circuit Court. The circuit court may vacate or set aside the order only if it is unlawful (confiscatory) or unreasonable. It may grant injunctive relief only in the manner and upon the terms, “provided by law.”

It is significant that the legislature used the phrase “provided by law”. It did not write “according to the principles of equity jurisprudence”. The Chapter presents a unified and symmetrical scheme for the exercise of the legislative power of ratemak-ing. We do not believe that the legislature, by the use of such restrictive language, intended to open up the area for discretionary relief granted upon comparatively nebulous and generous equitable principles. We read the legislative mandate as directing us to keep our judicial fingers out of the ratemaking pie except to the degree that the constitutions require our intervention.

A utility company is entitled to temporary injunctive relief only if it establishes that there is a reasonable probability that it will succeed on final hearing in proving that the rate set by the Commission in its order is confiscatory in the previously defined constitutional sense.

The rule applicable to stay orders or temporary injunctions in rate cases is stated in 73 C.J.S. Public Utilities § 67, at page 1204 as follows:

“In order to warrant an injunction pen-dente lite it must appear that there is a reasonable probability that complainant will prevail on final hearing; and, where the matter is doubtful or where it is probable that a practical test will be required to ascertain the reasonableness of the order or regulation in question, such relief should be refused. So, where there is any doubt as to the proper exercise of the commission’s discretion in making its order, as where the record presents a bona fide controverted issue of fact, a temporary injunction should not be granted. Injunctive relief in such case should not be granted except after a plenary trial of the issues on the merits”.

It is enough to say that the evidence before the circuit court would not support a finding and the circuit court did not find that there was insufficient revenue produced by the Commission’s order to cover either operating expenses or capital costs, including service on the debt and dividends on the stocks at a rate of return to the equity owner commensurate with returns on investments in other enterprises having corresponding risks, or that the rate of return was insufficient to insure confidence in the financial integrity of the enterprise, so as to maintain its credit and attract capital. In other words there is no evidence that the rate fixed by the Commission is less than the “lowest reasonable rate”. The evidence adduced by South Central Bell, viewed in the light most favorable to it, establishes no more than that the rate of return allowed by the Commission is slightly less than the current interest rate on high grade corporate bonds. The constitutions and statutes, like the Salvation Army, aid the needy not the greedy.

KRS 278.190(4) makes it manifestly clear that a utility need not make refund of excess rates collected until after the final termination of litigation.

The temporary injunction was erroneously granted and it must be vacated. The order of the Franklin Circuit Court entered March 2, 1976 will be reinstated.

It is so ordered.

Full court sitting; all concur except JONES, STEPHENSON and STERN-BERG, JJ., who dissent.

REED, C. J., files separate concurring opinion in which PALMORE, J., joins.

REED, Chief Justice

(concurring).

I concur in the majority opinion granting relief pursuant to CR 65.07.

The only operative finding of fact made by the trial court was that the movant would suffer loss by reason of being “permanently deprived of revenues from the rates finally allowed, to the extent such rates may exceed the rates prescribed by the Commission because such rates could not be retroactively collected prior to such final determination”.

The dissenting opinion, in order to reach its result, asserts the trial court’s findings are determinations that without this increase the respondent will not collect sufficient income to meet its operating expenses, service its debt, and earn a justifiable profit. Thus, the respondent will not be able to provide proper, competent, and efficient service. The dissent states: “Not only does this constitute an emergency condition, but it demonstrates that the credit of the company and its operations will be materially impaired by a failure to permit the rate to become effective.” Hence, the dissent undertakes to make findings of facts that the trial judge did not make, so far as the arguments in the briefs or oral argument indicate. The Commission granted some of the increase applied for. Its administrative determination should not be preliminarily enjoined without a clear showing of the need to do so.

PALMORE, J., joins in this opinion.

JONES, Justice

(dissenting).

In my view, the action of the trial court enjoining the Public Service Commission from enforcing the rate order of December 31,1975 was proper. The trial court directed that rates charged by South Central Bell, “shall remain subject to refund to the extent such rates are not allowed on final determination of this action.” South Central Bell has executed sufficient bond to manifest its good faith in that respect.

The trial court’s order comports with the provision of the statute quoted in the majority opinion. KRS 278.390. The commission’s order shall continue unless the order is suspended in whole or in part by order of a court of competent jurisdiction.

I am not willing to substitute my judgment for that of the trial court, who heard and determined the matter. In my opinion the findings are not clearly erroneous. CR 52.01. Therefore, I would sustain the trial court’s temporary injunction of March 31, 1976.

For the reasons enumerated, I respectfully register my dissent.

STEPHENSON, J., joins in this dissenting opinion.

STERNBERG, Justice

(dissenting).

The application of South Central Bell Telephone Company for an increase in intrastate telephone rates sufficient to increase its income by $33 million per year was denied by the Public Service Commission. It did, however, approve a rate increase sufficient to generate $15 million per year, which is less than one-half of the amount sought. The respondent, in a proceeding in the Franklin Circuit Court, secured a temporary injunction against putting the order of the Public Service Commission into effect. Interlocutory relief in the form of an injunction is authorized by KRS 278.410(3). As a result South Central Bell is able to collect intrastate telephone rates sufficient to generate the full increase which it seeks. The Commonwealth is here, under CR 65.07, seeking to have the temporary injunction dissolved.

Upon a final disposition of an appeal from an order of the Public Service Commission, the circuit court may not set aside or vacate it except upon a showing that the order is unlawful or unreasonable. KRS 278.410. We are not at this time confront-ad with the final disposition but'only with the propriety of the issuance of a temporary injunction. A temporary injunction is designed merely to hold a status quo until the case can be decided on its merits. Curry v. Farmers Livestock Market, Ky., 343 S.W.2d 134 (1961). The right to a temporary injunction is addressed to the sound discretion of the trial court, and this court should not set aside a temporary injunction unless it is clear that the trial court abused its discretion. Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760 (1958). The trial judge filed findings of fact and conclusions of law in which he found, among other things, the following:

“5. The Company, pursuant to KRS 278.410, filed this action for review of the Commission’s order claiming that the said order was arbitrary, unjust, unlawful and unreasonable for a number of reasons. It is asserted that the order fails to permit the Company to charge rates which will produce revenues necessary to meet its operating expense, service its debt and earn a rate of return that will attract capital and otherwise maintain its financial integrity; it does not produce the overall rate of return of 8.95% and the rate of return on equity of 11% which the Commission finds necessary to attract capital and maintain the financial integrity of the Company.
6. The Company will suffer immediate loss unless enforcement of the Commission’s order is restrained pending a final determination of this matter, in that the Company will be permanently deprived of revenues from the rates finally allowed, to the extent such rates may exceed the rates prescribed by the Commission because such rates could not be retroactively collected prior to such final determination.
7. Restraining enforcement of the Commission’s order will maintain the status quo. The rates placed into effect by the Company on September 3, 1975, pursuant to KRS 278.190(2), are presently being charged, are subject to refund as provided by the Commission’s order, and the relief requested will not require any other party hereto to change its course of action.
8. The equities justify granting the relief requested. Restraining enforcement of the Commission’s order will secure the benefits of the Company’s appeal if it is ultimately successful, but will not prejudice the Commission or the other parties hereto. The Company’s ratepayers are adequately protected because, if the Commission’s order is finally upheld, they will be entitled to refunds of the amounts collected in excess of the rates prescribed by the Commission together with interest thereon, as provided by its order, and the Company is maintaining its records in such manner as will enable it to make such refunds.”

If the findings of fact and conclusions of law are not supported by clear and convincing evidence of substance, then and in that event the trial judge has abused his discretion and the temporary injunction should not be permitted to stand. On the other hand, the temporary injunction which was issued by the Franklin Circuit Court is wholly justified if it is shown by the evidence that:

1. The rights of South Central Bell Telephone Company will be violated by the order of the Public Service Commission, and
2. It will suffer immediate and irreparable injury, loss, or damage pending a final judgment on the action, or
3. The acts of the Public Service Commission will tend to render a final judgment ineffective. (CR 65.04).

The respondent is entitled to a rate that will yield a fair and reasonable return. The rate which yields less than this is unjust, unreasonable, and confiscatory. 64 Am. Jur.2d Public Utilities, § 135. In Citizens Telephone Co. v. Public Service Commission, Ky., 247 S.W.2d 510 (1952), this court, in the course of its opinion, wrote:

“As said by the Supreme Court in the Hope case (Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333), rates which enable the utility to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed, cannot be condemned as invalid, even though they might produce only a meagre return on the so-called ‘fair value’ rate base. Obviously, in times of inflated values, such as the present, a low rate of return based on reproduction cost new will adequately supply the financial needs of the utility.”

I construe the court’s findings as being an affirmative finding from the evidence and from the record that the rates which the Public Service Commission had authorized are not sufficient to produce an overall rate of return and a return on equity sufficient to attract capital and maintain the financial integrity of the company. I further construe the court’s findings to be that the company will be unable to collect from many of its customers the difference between the amount it is authorized to collect pursuant to the order of the Commission and the amount which it should have been permitted to collect. The rationale, as I construe the court’s findings, is a determination that without this increase the respondent will not collect sufficient income to meet its operating expenses, service its debt, and earn a justifiable profit. As a result thereof, the respondent may not be able to provide proper, competent, and efficient service. Not only does this constitute an emergency condition, but it demonstrates that the credit of the company and its operations will be materially impaired by a failure to permit the rate to become effective.

It does not follow and it is not this writer’s purpose to leave the impression that in every case where the Public Service Commission approves a rate less than that requested, the applicant should be permitted to charge the requested rate until the case has been finally decided and the permanent rate established. For example, the rate increase may be less than the amount sought, yet engender sufficient income so that the company may satisfactorily carry out its operations without jeopardy to its ability to compete. Each case would have to stand on its own bottom. We must bear in mind that a sound financial structure of a public utility is necessary for its safe and satisfactory operation. The testimony of the witnesses for the respondent demonstrates that its financial condition, if the order of the Public Service Commission is put into effect at this time, may injuriously affect its financial structure.

The findings of the court portray the immediate irreparable and serious injury. True it is that the trial judge did not find that in the event the respondent is not permitted to charge the full rate of increase, it will be bankruptcy bound. Such a condition is not essential to justify the temporary injunction.

In the landmark case of Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760 (1958), there is set out the guidelines to be considered in granting or denying a temporary injunction. In considering the propriety of the issuance of a temporary injunction, we should bear in mind, among other things, that it does not justify a determination of the issues that are being litigated and there is no appeal from an order granting a temporary injunction. The prime consideration is threefold:

1. Are the applicants for the temporary injunction suffering immediate irreparable and serious injury at the present time, or will they suffer such injury pending a final decision?
2. Are the applicants seeking to maintain the status quo, or are they requesting mandatory relief which would require the defendant to change his course of action?
3. Do the equities of the situation justify the granting of such extraordinary relief at this time?

We need not be solely guided by the irreparable injury requirement. If, upon consideration of the whole case, the equities of the parties justify the temporary injunction, the court is fully justified in its issuance. The respondent, prior to the issuance of the temporary injunction, posted a bond with the trial court in the sum of $250,000. In the event the full increase sought by respondent is not finally allowed, each customer will be refunded any excess that he has been required to pay with interest. In those cases where a customer who is entitled to a refund cannot be located, the refund will escheat to the Commonwealth of Kentucky; it will not inure to the benefit of the respondent.

In Mountain View Rural Telephone Co. v. Interstate Utilities Co., 55 Idaho 86, 38 P.2d 40, the Supreme Court of Idaho had before it a contest of telephone rates. Appellant, in its petition for a stay, alleged as follows:

“That if a stay of said order is not made by the Supreme Court of the State of Idaho, said Interstate Telephone Company, appellant, will suffer immediate and irreparable damage, for which it cannot be compensated because it will be necessary to change its system of accounts and billing to users of telephone service of the class involved and defined by said Order, in that the users of telephone service will be billed at reduced rate; that such users are located at distant and isolated points over a wide territory in Northern Idaho, and should said order thereafter be reversed or modified it would be necessary to collect an increased rate and in numerous cases it would be difficult for said Company to contact said user, and if legal proceedings became necessary there would be a multiplicity of suits over a small sum, with expense and costs to the Company entirely disproportionate to the amount involved. In a great many cases, also there is grave doubt whether or not collection might be made by legal process.”

In considering the charge, the court said:

“There is, however, merit in the contention of the company that it would suffer irreparable damage for the reason that the telephone users are located at distant and widely separated points in Northern Idaho and in the event of a reversal or modification of the order it would be necessary to collect an increased rate; that in numerous cases it would be difficult to contact such users; and if legal proceedings became necessary, there would be a multiplicity of suits over small sums, with expense and cost to the company entirely disproportionate to the amount involved, and in many cases grave doubt as to collection.”

In disposing of the attack on the temporary injunction, the Supreme Court of Idaho stayed the restriction of the Commission, which, in the case at bar, would be the same as continuing the temporary injunction in full force and effect until further orders of this court.

In the subject action, the trial court made findings of fact which this court will not set aside unless clearly erroneous, and we are charged with the responsibility of giving due regard for the opportunity of the trial court to judge the credibility of the witnesses (CR 52.01). We must bear in mind that a finding by this court in favor of the respondent would not be an adjudication of its entitlement to its full rate increase. This is only an interlocutory matter and the full and final determination of the rights of the parties is yet to be made by the trial court.

I would deny the motion of the Commonwealth to dissolve the temporary injunction.


author: PALMORE, Justice.

text:
    Lloyd COULIETTE, Appellant, v. INTERNATIONAL HARVESTER CO. et al., Appellees.
    Supreme Court of Kentucky.
    Dec. 3, 1976.
    Rehearing Denied Feb. 25, 1977.

      Robert M. Lindsay, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellant.
    Carl Arthur Henlein, John W. Bilby, Middleton, Reutlinger & Baird, Louisville, Kenneth E. Hollis, Director, Dept, of Labor, Frankfort, for appellees.
    William F. Gadd, Frankfort, for Special Fund Dept, of Labor.
   PALMORE, Justice.

This is a workmen’s compensation case in which the claimant appeals from a judgment sustaining a final order of the Workmen’s Compensation Board awarding temporary but denying permanent benefits.

The claimant injured his knee while at work on December 1, 1973. Surgery was required, and it is undisputed that the injury has left him with a permanent functional impairment (insofar as it is attributable to the accident alone) of some 5% to the body as a whole. However, following the period of temporary disability the claimant returned to his regular employment with no decrease in wages, and the question before us is whether KRS 342.620(9), which became effective January 1, 1973, modifies the principle theretofore announced in Osborne v. Johnson, Ky., 432 S.W.2d 800, 804 (1968), with respect to permanent injuries that do not precipitate loss of immediate earning power.

The rule stated in Osborne (432 S.W.2d at p. 804) was “that in those instances in which the workman has sustained no loss of immediate earning capacity but has incurred a permanent injury of appreciable proportions, the Workmen’s Compensation Board, under KRS 342.110, can and should make an allowance for some degree of permanent partial disability on the basis of the probability of future impairment of earning capacity as indicated by the nature of the injury, the age of the workman, and other relevant factors.”

KRS 342.110(1), which was repealed by the same act (ch. 78, § 36, Acts of 1972) that created KRS 342.620, provided that in all cases of unscheduled permanent partial disability “compensation shall be determined according to the percentage of disability, taking into account, among other things, any previous disability, the nature of the physical injury or disfigurement, the occupation of the injured employe and age at the time of injury,” etc.

The Osborne opinion centers on the proposition that “disability” means occupational as distinguished from purely functional impairment. 432 S.W.2d at p. 802. Its principal significance lies in its departure from the so-called “Leep” rule, originating in E. & L. Transport Company v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102 (1960), under which it had been held that if a workman was totally disabled from working at his usual occupation, and his capacity to do other kinds of work was to any extent impaired, he was entitled to compensation for total disability. Under that rule disability was assessed mainly in terms of the workman’s customary occupation. Under Osborne it is assessed in terms of his overall capacity to earn a living. In keeping with this approach, that the injured workman is able to continue in his usual work does not necessarily mean that his earning capacity has not been impaired, because his injury may reduce his ability to do some kind of gainful work in the future. Hence Osborne held that although a permanent injury has not affected the workman’s capacity to continue in his current employment, if it is “a permanent bodily injury of appreciable proportions” it simply must be presumed to affect his over-all earning capacity as viewed in terms of future prospects.

Now the question is whether a different policy is suggested by KRS 342.-620(9), the theme and hallmark of which may be found in the following, its first sentence:

“ ‘Disability’ means ... a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employe is customarily able to do, in the area where he lives, taking into consideration his age, occupation, education, effect upon employe’s general health of continuing in the kind of work he is customarily able to do, and impairment or disfigurement.”

Thus far, it seems to us that the statute is quite substantially in keeping with Osborne. However, it is the last sentence of KRS 342.620 that prompts the claimant’s argument. It reads as follows:

“An individual entitled to benefits under permanent partial disability shall be entitled to either his lost wages due to his injury, or bodily functional disability benefits, whichever is greater.” (Emphasis added.)

According to the claimant, KRS 342.-620(9) thus defines “disability” as functional disability or occupational disability, whichever is the greater. We cannot agree. The answer, we think, lies in the word “benefits.” Bodily functional disability is not one and the same as bodily functional disability benefits. The latter term, used in the statute, can mean nothing other than “benefits allowable by reason of bodily functional disability” vis-a-vis lost wages. We conclude that there is nothing in this particular subsection of the statutes that modifies the principle stated in Osborne.

' With this conclusión established, the case is governed by Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972), in which the workman suffered a permanent functional impairment of 10% to the body as a whole but was able to continue in his regular employment. As in the case here under consideration, there was no other evidence to support a finding that a future impairment of earning power was probable. Cf. 478 S.W.2d at p. 733. For that reason a judgment sustaining an award for permanent partial disability was reversed. According to the same rationale, the action of the board in declining to make an award for permanent partial disability in this case was proper.

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    Rudy C. BRYANT, Appellant, v. Patricia C. BRYANT, Appellee.
    Supreme Court of Kentucky.
    Jan. 28, 1977.

      William M. Deep, King, Deep & Brana-man, Henderson, Rudy C. Bryant, Henderson, for appellant.
    William G. Craig, Sandidge, Holbrook & Craig, Owensboro, for appellee.
   JONES, Justice.

Rudy C. Bryant appeals from a judgment of the Henderson Circuit Court which sentenced him to six months in jail and fined him the sum of five hundred ($500.00) for contempt. The fine and jail sentence were imposed because Rudy failed to comply with the trial court’s order to deliver the custody of the parties’ infant son Kevin to his mother, Patricia.

Rudy attacks the judgment on the theory that this court had no authority to direct the trial court to cause the immediate return of Kevin to Patricia. He bases this theory on the premise that:

(1) Patricia did not, prior to the filing of a request for a writ of prohibition with this court, ask the Henderson Circuit Court to cause Kevin to be returned to her, (2) Patricia at no time sought an order from this court directing the trial court to cause Kevin to be returned to her, and (3) that he had no notice that the issue of an order directing the return of Kevin to Patricia was before this court. Rudy contends that the trial court’s order adjudging him in contempt is void. For that reason, he asserts that he may not be punished for contempt of a void order. Each contention that the trial court, as well as this court, erred is refuted by the record.

This appeal hopefully will culminate a long and bitter controversy between Rudy and Patricia for Kevin’s custody.

In order to place the issues in proper perspective, it is necessary to detail other proceedings that led to the present conviction of Rudy for contempt.

On September 17, 1971, Patricia and Rudy were divorced by judgment of the Henderson Circuit Court. The trial court awarded the custody of Kevin to Patricia. On November 26,1971, Rudy filed a motion in the Henderson Circuit Court seeking custody of Kevin and to prohibit Patricia from taking Kevin to Tennessee. On March 23, 1972, the trial court overruled the motion and in his order specifically provided: “That the taking of the child (Kevin) by the defendant, his mother, to Nashville, Tennessee .. . for the purposes of establishing his residence there would not necessarily be detrimental to the best interest of the child.” In the March 23, 1972 order the trial court found: “That . . Patricia C. Bryant, does have sufficient, plausible and justifying reasons ... to remove the residence of herself and the child to Nashville, Tennessee, and that defendant’s purpose in moving ... is not motivated by a desire to deprive Rudy C. Bryant of his visitation privileges.”

Patricia and Kevin moved to Nashville in 1972. There was no problem concerning either custody or visitation rights. Rudy had liberal visitation rights with Kevin.

Kevin visited Rudy during August 1975. Kevin was to be returned to Nashville on September 1, 1975, so that he could be enrolled in the school he had attended for the past three years. Instead of returning Kevin, Rudy filed a petition for modification of the decree and that he be granted custody of Kevin.

Patricia responded to the petition for modification of the custody decree seeking its dismissal on the ground that the trial court lacked jurisdiction to determine custody under the provisions of KRS 403.260. The trial court overruled Patricia’s motion. He asserted he did have jurisdiction.

On September 23, 1975, Patricia filed in this court a petition for temporary writ of prohibition. That relief was granted. Thereafter, this court considered the petition for a permanent writ, the response and the exhibits. On October 16, 1975, the court granted permanent prohibition. The court was of the opinion that Turley v. Griffin, Ky., 508 S.W.2d 764 (1974), and KRS 403.260 are dispositive of the issue presented in the petition for writ of prohibition. The court held that the Henderson Circuit Court lacked jurisdiction. This court directed the trial court to enforce the immediate return of the custody and possession of the child to the petitioner, Patricia C. Bryant. Thereafter, the trial court filed a rather unique pleading styled Petition for Directions from the Court. In that lengthy petition the trial court requested this court to tell him how to effect the transfer of the custody of Kevin to his mother, Patricia. Subsequently, he entered the following order:

“Pursuant to the orders of the Court of Appeals of Kentucky entered on October 16, 1975, and November 13, 1975, the Henderson Circuit Court hereby orders and directs the respondent, Rudy C. Bryant, to personally deliver and return unto the petitioner, Patricia C. Bryant, at her residence and place of abode located on Fredericksburg Road in the area of Forest Hills, Nashville, Tennessee, the parties’ child, Kevin C. Bryant, on Saturday, November 22, 1975, between the hours of 1 o-clock and 2 p. m. of said date . further said respondent is ordered and directed to comply with the foregoing order under-pain of contempt of court.”

Rudy failed to comply with the order. Patricia filed a motion for Rudy to show cause why he should not be held in contempt. On November 28, 1975, after a hearing, the trial court held Rudy Bryant in contempt of court. The issues presented by Rudy Bryant in his brief are weighed in the balance and found wanting. Neither of the issues raised has any merit. Each of them is refuted by the record.

This is a case where a ten-year-old boy was permitted to dictate his desires to the trial court. Of course Kevin was impressed with hunting and fishing and having pets. These made indelible impressions on his desire not to return to Nashville with his mother. It is tragic indeed that this matter could not have been settled amicably. Rudy C. Bryant is a lawyer and an officer of the court. He should have effected the return of Kevin to his mother. He contends that his refusal to do so in face of the order was that Kevin needed psychiatric treatment. The trial court permitted him by avowal to introduce the incompetent evidence of two psychiatrists. He contends that to return Kevin would not only endanger the child, but perhaps endanger Patricia. The court can appreciate Rudy’s concern for his child. Likewise, the court recognizes the anxiety of the mother. The following excerpts from evidence heard by the trial court show the bitterness that existed between these parents:

“MR. CRAIG: Take him by the hand and let’s go. You take him by the hand and lead him.
KEVIN BRYANT: (Pulling away from Mrs. Bryant) No. (All parties, all attorneys of record, the court and the court reporter as well as the sheriff and the child, Kevin, then proceeded to the courtroom and the following proceedings were had.)
KEVIN BRYANT: I’m not going.
MRS. BRYANT: May I get my help?
THE COURT: No ma’m, you have to take him along.
MR. CRAIG: No, just lead him with you. Just take him by the hand. (Mrs. Bryant then took Kevin by the hand.)
KEVIN BRYANT: (Pulling his hand away from Mrs. Bryant) No, Mama.
MRS. BRYANT: Come on Kevin.
KEVIN BRYANT: No, Mama.
MRS. BRYANT: Please come with me.
KEVIN BRYANT: No.
MRS. BRYANT: Come on, Kevin.
KEVIN BRYANT: No, Mama.
MR. CRAIG: Just take him by the hand.
MRS. BRYANT: Please come with me. (Kevin walking away from Mrs. Bryant)
MRS. BRYANT: (Screaming) My God, I can’t believe all of you doing this to me. This is my child.”

Perhaps the constant fight for custody, and the long delay has been a traumatic experience for all the parties. Yet, no one is above the law. It appears that Rudy seeks revenge, regardless of the consequences. Many years ago a wise man wrote:

“Revenge is a kind of wild justice which the more man’s nature runs to, the more law ought to weed it out.”

Rudy Bryant has flagrantly defied the trial court’s order. Under statutory and case law, the proper forum for the relief he sought was the courts of Nashville, Tennessee. That was and is the residence of both Patricia and Kevin. See KRS 403.260; Turley v. Griffin, supra and Honigsberg v. Goad, Judge, Ky. (decided December 17, 1976).

This court is of the opinion that the judgment should be and it is affirmed.

All concur except PALMORE, J., who did not sit nor participate in this decision.

      . Bacon, Francis — of Revenge.


text:
    Clarence Larry GASTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 28, 1977.

      Nicholas W. Carlin, Rose Levada Shipp, Louisville, for appellant.
    Richard Cooper, Asst. Commonwealth Atty., Louisville, Ed W. Hancock, Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

In Gaston v. Commonwealth, Ky., 533 S.W.2d 533 (1976), the judgment of the trial court in this case was vacated and the cause was remanded for determination of whether the contents of an “evidence letter” prepared by a police officer following his arrest of the appellant was such that the denial of his RCr 7.26 right to inspect and use it was prejudicial. The trial court thereupon conducted a hearing, concluded that the denial was not prejudicial, and reinstated the judgment. The appellant now brings the matter to this court in the form of a “Memorandum on Hearing on Remand from Supreme Court of Kentucky.”

It is evident that some confusion exists with respect to the procedural manner in which an order reinstating the judgment following a remand should be brought under appellate review.

Our opinion in 533 S.W.2d 533 cited “the procedure directed in Roach v. Commonwealth, Ky., 507 S.W.2d 154, 155 (1974)," and concluded with this sentence:

“If it is found not to have been prejudicial, the judgment may be reinstated subject to further review by this court.”

By “further review” we had in mind an appeal from the order reinstating the judgment, the remedy of appeal being the usual method of obtaining an appellate review. However, the Roach opinion refers back to “the plan we fashioned in Maynard v. Commonwealth,” Ky., 497 S.W.2d 567 (1973), in which it was directed that a record of the supplemental proceedings in the trial court be forwarded to this court for further proceedings disposing of the appeal on its merits. Neither Maynard nor Roach undertook to pass on the claims of error asserted by the respective appellants other than denial of the RCr 7.26 right to inspect pretrial statements made by a witness. Thus it was necessary for the pending appeal to proceed to a conclusion in the event the trial court, upon remand, held the denial to be nonprejudicial. This created a hybrid situation in which the appeal was still hanging in this court while the trial court had the RCr 7.26 question under consideration. In this ease, however, our first opinion (533 S.W. at p. 534) expressly stated that all other claims of error had been resolved against the appellant. Hence there was nothing left but the RCr 7.26 question, and upon reinstatement of the judgment the proper remedy for the appellant was to appeal from the order of reinstatement. Nonetheless, acknowledging the procedural uncertainty induced by the combination of Maynard, Roach and our first opinion in this case, we shall treat as proper the manner in which the appellant has proceeded.

In future cases, unless the appellate opinion clearly specifies otherwise, the final order of a trial court following a remand should be brought up for appellate review by an appeal from that order. If the appellate opinion has not resolved other questions raised on the original appeal, they need not be rebriefed and will not be considered as waived. Moreover, in perfecting the second appeal the appellant in a criminal case shall not be required to comply with RAP 1.070(a)(3).

In the supplemental proceeding before the trial court it developed that the original “evidence letter” handwritten by the police officer had been copied on a typewriter by a secretary in the narcotics unit, and it was this typewritten copy, rather than the handwritten original, that was contained in the envelope on which the officer had placed his signature. According to the officer, he delivered the handwritten report to his supervisor, who then turned it over to the secretary for typing. The officer did not know exactly when the typewritten copy was made, but he said that his standard procedure was to read the typewritten copy and make sure that it conformed to what he had written. He testified that it was this typewritten copy that he had in hand when he appeared as a witness in the appellant’s trial. Apparently the handwritten original had been destroyed, though we cannot be entirely sure, since counsel did not pursue the inquiry to the point of determining exactly what actually or probably did happen to the original. In any event, there is no probative evidence in the record from which it could be found that the original exists now or existed at the time of the trial, nor is there any evidence that the contents of the typewritten copy do not substantially conform to the original.

In his testimony at the trial the officer made no mention of the typing and checking process, and his superior officer testified that it was his custom to place the evidence envelopes in a safe right after they were turned in by the officer. At the supplemental hearing the officer testified that it was the typewritten copy rather than the original that was placed in the envelope and handed to his superior.

For some strange reason the typewritten copy or copies, though received as exhibits in the supplemental hearing, have not been included with the supplemental record filed with this court. Be that as it may, there is no contention that the contents of the typewritten material suggest any prejudice resulting from its nondisclosure at the trial.

Appellant argues that the Commonwealth has failed to comply with this court’s directive that the original report be produced for inspection, and that since the original evidently is no longer available the judgment should be reversed with directions that the prosecution be dismissed. This would indeed be a masterpiece of prestidigitation, proving the hand quicker than the eye.

We agree with counsel for appellant that some aura of suspicion arises from the imprecise way in which the evidence letter is described as having been handled. It should be recognized, however, that there is no principle of law telling a police department what it must or must not do with records of this kind. In fact, it is not compelled to keep them at all. Not until a motion is made under RCr 7.26 does a defendant become entitled to see the witness’s statement, and he can be so entitled only if the statement is still in existence. At that point, and only at that point, the right of the police department to do with it as it will ceases.

Here we have no substantial showing that the handwritten original of the evidence letter actually existed at the time the officer testified. Hence it cannot be said that the appellant was entitled to see it. That ends the case.

The judgment is affirmed.

All concur.


author: NEARN, Judge.

text:
    Anna Mae TUTOR, Appellant, v. Nancy BINGHAM, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Oct. 7. 1976.
    Certiorari Denied by Supreme Court Jan. 17, 1977.
    J. Frank Hall, Memphis, for appellant.
    Fred P. Wilson and Gary K. Smith, Memphis, for appellee.
   NEARN, Judge.

On August 12, 1973, John C. Tutor II, at age seventeen, was killed while operating a motorcycle. His motorcycle was in a collision with a Volkswagen automobile driven by Nancy Bingham. Suit was filed by the deceased’s mother, Anna Mae Tutor, for her son’s wrongful death. The case went to the jury which body returned a verdict for the defendant and plaintiff has appealed from that verdict with three Assignments of Error.

The first Assignment of Error is directed to the Trial Court’s refusal to sustain counsel for plaintiff’s objection to testimony regarding plaintiff’s sexual conduct. On cross-examination over the objection of counsel for plaintiff, defense counsel was permitted to question Mrs. Tutor regarding her divorce from her husband and the fact that after the divorce and without legal sanction, she returned to the conjugal bed and bore him two children (neither being the deceased). Such testimony has absolutely nothing to do with this cause of action as this cause of action is actually the cause of action of John C. Tutor, II, for his wrongful death and is only incidentally brought by Mrs. Tutor in his stead. It is not the cause of action of Mrs. Tutor. Jones v. Black (1976 Tenn.) 539 S.W.2d 123; Phelps v. Magnavox (1972 Tenn.App., W.S.) 497 S.W.2d 898. The “worthiness” or “unworthiness” of the nominal plaintiff and ultimate beneficiary is totally unrelated to this type of action as it is “the right of action which the deceased would have had, had he survived.” Jones v. Black, supra.

Counsel for appellee argues that such cross-examination was admissible on the “credibility” theory or on the theory that he had the right to bring out the “atmosphere” the deceased was raised in as it would have bearing on the deceased’s capacity for work and personal habits as to sobriety and industry. The argument is totally without merit. Mrs. Tutor was not a witness to the accident and did not testify about it. She testified to the basic facts that her boy was alive, is now dead, had a job and was a dutiful son. None of these points were in any manner contested. The credibility of Mrs. Tutor was a non-issue. We fail to see how the conduct of Mrs. Tutor has anything to do with the deceased’s capacity for work and personal habits.

The only reason we can see for the admission of such testimony was to prejudice the minds of the jurors. See Phelps v. Magnavox, supra. The intentional injection of testimony regarding the sexual conduct of the party in whose name the suit is brought, which testimony bears no semblance of a legitimate basis for admission in a case, will not be tolerated. We hold that in this case the error should be considered as reversible. The Assignment of Error is sustained.

The fatal injury took place on Get-well Road in Memphis. The street has two lanes for southbound traffic and a center or third lane for left turning traffic and two lanes for northbound traffic. On the morning in question a portion of the curb lane for southbound traffic was blocked by construction work barricades. Plaintiff’s witness testified that the witness was in the southbound lane which lies between the curb lane and the left turn lane, that the deceased was headed south on his motorcycle in the curb lane slightly ahead of the witness. That the defendant, driving a Volkswagen, passed the witness by using the left turn lane, cut in front of the witness and attempted a right turn in a private drive immediately to the south of one of the barricades and directly in front of the deceased. The proof shows that the deceased’s motorcycle struck the Volkswagen when both were in the curb lane. The defendant testified that she did not pass the plaintiff’s witness as testified to but was proceeding southwardly in the lane next to the curb lane because of the barricades and that she turned on her right turn signals, and began to move over into that portion, of the curb lane not blocked. That she proceeded in this manner and when she started to turn into the private drive was struck by the motorcycle driven by the deceased which she had never before seen. It was the defendant’s theory that automobile traffic could not proceed in the approximately five feet lying between the barricade and the lane line for the other southbound lane and that deceased was attempting to pass her on the right from a position where he had no business being, all while defendant’s turn indicators were flashing.

The Trial Judge refused to charge the following special request No. 6:

“The Court charges you that if a right-hand turn is made, without observing traffic to the rear of the turning vehicle, such a turn violates T.C.A. 59-842 and is negligence per se, or in and of itself.”

This special request to charge is contained in the Court’s general charge where the Trial Judge advised the jury that plaintiff contended that defendant had violated T.C.A. 59-842 and in a later portion of the charge he instructed the jury that a violation of a statute or ordinance was negligence per se. The plaintiff was not entitled to have it repeated and the Assignment of Error is without merit.

Plaintiff’s special request No. 7 was as follows:

“The Court charges you that a motorcycle in and of itself, absent of other factors is not a dangerous instrumentality, and negligence is not to be inferred from the mere use of a motorcycle as a means of transportation.”

We believe plaintiff was entitled to have this charge submitted to the jury as it is certainly the law. Duncan v. Ferrell (1968 W.S.) 58 Tenn.App. 133, 427 S.W.2d 36. In addition, because of the fact that an automobile could not be driven in the right lane because of the barricades, the jury was entitled to an instruction that negligence is not implied from the mere use of a motorcycle.

The first and third Assignments of Error are sustained and the cause is remanded for a new trial.

Costs of the appeal will be adjudged against the appellee.

Done at Jackson in the two hundred and first year of our Independence and in the one hundred-eighty-first year of our Statehood.

CARNEY, P. J., and MATHERNE, J., concur.


text:
    Jessie YOUNG et al., Appellants, v. WESTERN WORLD INSURANCE COMPANY, INC., KEENE, NEW HAMPSHIRE, Appellee.
    Court of Appeals of Tennessee, Western Section.
    June 24, 1976.
    Certiorari Denied by Supreme Court Oct. 18,1976.

      H. Morris Denton, Bolivar, for appellants.
    Jerry D. Kizer, Jr., Jackson, for appellee.
   NEARN, Judge.

Plaintiffs who are the owners and mortgagees of certain real property sued to recover under the terms of a fire insurance policy. At the close of plaintiffs’ proof the Trial Judge withdrew the matter from the jury and directed a verdict for the defendant insuror.

The policy issued by the defendant and paid for by the plaintiff-owner insured against loss by fire a “frame building occupied as nightclub situated Highway 125, 1 mile North of Middleton, Tennessee.” The premises burned to the ground on October 31, 1973. The insuror refused to pay any amount of the policy — either to the owner or the mortgagees named in the policy, and this suit resulted.

The insuror, in its pleadings, raised as a defense the policy provision that there was no coverage “while a described building . is vacant or unoccupied beyond a period of sixty consecutive days.”

The Assignment of Error is that the Trial Judge erred in directing a verdict for the defendant at the close of plaintiffs’ proof.

The Assignment of Error is well made and will be sustained.

The plaintiff-owner testified that when he purchased the premises the intended use of the building was as a nightclub and that beer would be sold on the premises. Upon purchase, he immediately applied for a beer license but learned that the previous occupant of the building had lost his permit to sell beer because of a violation of the rules and regulations of the beer board. He further learned that there was a required waiting period before a new owner could obtain a beer permit. The premises were purchased by the plaintiff-owner on March 19, 1973, and the beer board required waiting period expired in January of 1974. The plaintiff-owner decided to wait out the suspension or waiting period. During the interim plaintiff-owner turned over the key to the premises to the chief of police with permission to use the premises as a teenage dance hall and amusement center. The premises were then principally so used on weekends. The premises contained soft drink machines, dancing facilities and coin-operated machines of amusement. The premises ceased to be so used about a month and one half prior to the fire.

Viewing the proof in the light most favorable to the plaintiff as we are required to do in matters such as this, Goings v. Aetna Casualty and Surety Company (1972 Tenn.App., W.S.) 491 S.W.2d 847, we believe the plaintiff had made out a prima facie case.

Counsel for appellee however argues that mere casual or infrequent visiting of the premises does not constitute occupancy as to defeat the meaning of the term “unoccupied” as used in the policy. The case of Cashen v. Camden Fire Ins. Ass’n (1961 E.S.) 48 Tenn.App. 470, 348 S.W.2d 883, is strongly relied upon as supportive of this argument and the action of the Trial Court in directing a verdict at the close of plaintiffs’ proof.

In the Cashen case, supra, the Court of Appeals held that “whether the use actually made of a building constitutes ‘occupancy’ depends upon the nature and character of the building, the purposes for which it is designed, and the use contemplated by the parties as expressed in the insurance contract.” In that case, the insured building had been padlocked by Court order and had not been “occupied as a restaurant” as provided in the policy for 113 consecutive days. The uncontradicted proof in that ease was that the premises had not been used for anything remotely resembling restaurant usage for those 113 days. The only use put to the building was to store tools used by Cashen in working land in the vicinity.

We believe the facts of Gashen, supra, are a far cry from the facts now before us — and facts are what determine the propriety of granting a directed verdict. In Cashen, supra, the Court found that the undisputed facts showed the premises were used as a tool shed for 113 days instead of a restaurant, and the exclusionary clause of that policy as a matter of law must therefore apply.

From the proof presented in this case we are unable to say as a matter of law that within the meaning of the policy the building was (a) not used as a nightclub and (b) was unoccupied for sixty consecutive days.

Since the defendant was not required to put on any evidence before the verdict was directed, we feel constrained to note that the burden of proving the averred defense is upon the defendant.

The judgment below is reversed and the cause remanded for a new trial. Costs of the appeal are adjudged against the appel-lee.

CARNEY, P. J., and MATHERNE, J., concur.


author: PARROTT, Presiding Judge (E.S.).

text:
    Geneva DIXON, Appellee, v. Allen MANIER and Artiste School of Cosmetology, Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    July 21, 1976.

      Charles T. Herndon IV of Herndon, Coleman, Brading & McKee, Johnson City, for appellants.
    James T. Milliken, Thomas E. Mitchell, Johnson City, for appellee.
   OPINION

PARROTT, Presiding Judge (E.S.).

Geneva Dixon filed in the circuit court a suit for damages against Allen Manier and Artiste School of Cosmetology alleging defendants negligently applied to her hair a straightener so as to cause plaintiff to lose her hair. In the circuit court action defendants pleaded as a bar to recovery a release agreement plaintiff signed prior to application of the hair straightening chemical.

Prior to any determination in the circuit court action, plaintiff filed this complaint in the chancery court seeking to set aside the release agreement on the grounds the instrument was against public policy in that it attempted to release the defendants of future negligence. The complaint also alleges the release was void because of a lack of consideration.

After a hearing of the cause, the chancellor made a finding of fact that plaintiff had been “overreached” and “misled” into signing the release. Upon these grounds the chancellor set aside the release agreement and held same to be null and void. From the chancellor’s degree defendants have appealed.

We reverse and dismiss the complaint.

It is neither pleaded nor proven the defendant obtained the release agreement by any fraudulent or overreaching means. Thus, there is no basis of fact pleaded or proven to sustain the chancellor’s finding or the decree as entered.

Only two witnesses testified — Geneva Dixon and defendant's employee, Zella Manier. We find no discrepancies in these witnesses’ testimony to any material point.

On January 8, 1974, plaintiff went to the defendants for the purpose of having her hair straightened. At this time she had been going to the defendants every other week for about three months. On one prior occasion she had had her hair straightened by the defendant. The record is not clear whether the same procedure was used on that occasion as on January 8. Plaintiff says she does not remember signing a release or paper on the first occasion, but on January 8, shortly after defendants had begun to wash her hair, she was presented with a release which she signed. She did not read the instrument because she did not have her glasses. She testified they did not make her sign it but told her to, and that she had confidence and trusted them.

Defendants’ witness, Zella Manier, was present on January 8, but did not have any personal contact with plaintiff. However, she testified that some three months prior, when plaintiff had her hair straightened, she personally explained to her the dangers and risks involved and obtained from her a release. The substance used is a chemical which should not be applied to hair if it is dry, brittle, or fragile. The substance goes into the cortex of the hair and causes the fibers to soften. The reaction is the reverse of the ordinary usual permanent wave.

Under these facts, we find no evidence to support a finding the release agreement was obtained by overreaching means.

Standing alone, the fact plaintiff did not read the agreement is not a valid ground to declare it void. In the absence of fraud or duress, the failure of a person to read or learn the contents of a written agreement in no way relieves the binding obligations of the agreement. We said in Hardin v. Combined Insurance Company of America, 528 S.W.2d 31 (Tenn.App.1975), that a person is under a duty to learn the contents of a written contract before signing it. To permit a party to deny the obligations imposed by a signed written contract on the sole ground he had not read the contract would destroy the value of all contracts.

Written instruments may be reformed or voided on the ground of fraud or mistake only where such is shown by clear, cogent, convincing evidence. Napier v. Stone, 21 Tenn.App. 626, 114 S.W.2d 57 (1938); Jones v. Jones, 150 Tenn. 554, 266 S.W. 110 (1925). In Exum v. Washington Fire & Marine Ins. Co., 41 Tenn.App. 610, 297 S.W.2d 805 (1957), the Court applied the rule to releases and found the release invalid on ground of duress.

The proof here simply does not meet the requirements of clear and convincing evidence necessary to void a written instrument.

In the chancellor’s memorandum rendered from the bench, but not included in the decree, the release agreement was held void and unenforceable because there was no consideration and that the instrument was against public policy. These conclusions are incorrect.

In Johnson v. Central National Insurance Co., 210 Tenn. 24, 356 S.W.2d 277 (1962), the classical and accepted definition of consideration is stated: “A valuable consideration is either a benefit to the party promising or a prejudice or trouble to the party to whom the promise is made.” Certainly the services rendered by defendants to plaintiff fulfills the requirements of consideration.

Contrary to the chancellor’s holding, public policy of Tennessee favors freedom to contract against liability for negligence. Trailmobile, Inc. v. Chazen, 51 Tenn.App. 576, 370 S.W.2d 840 (1963). In Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1961), our Supreme Court held that parties may contract that one shall not be liable for his negligence to another but such other shall assume the risk incident to such negligence. In that case the Court pointed out there were exceptions such as a common carrier or those who have a specific duty imposed on them for the benefit of the general public. It is clear this cause does not fall within any of the exceptions.

In the recent case of Empress Health & Beauty Spa v. Turner, 503 S.W.2d 188 (Tenn.1973), which is much like this case, the plaintiff sued defendant for personal injuries allegedly received while using defendant’s weight-reducing machine. In that case the parties had entered into an agreement similar to the release in this case. With Justice Fones speaking for the Court, Moss v. Fortune, supra, and Trailmobile, Inc. v. Chazen, supra, were expressly approved. The Court sustained defendant’s motion for summary judgment upon a finding the release agreement was valid and was a complete bar to plaintiff’s recovery as a matter of law.

For the foregoing reasons the chancellor’s decree is reversed, the motion to dismiss the complaint is sustained.

Let all costs in this Court and the court below be taxed to the appellee, Geneva Dixon.

SANDERS, J., and JAMES H. JARVIS, Special Judge, concur.

APPENDIX

PERMANENT WAVE GUARANTEE and

CUSTOMER’S AGREEMENT

IN CONSIDERATION of the purchase by the undersigned of services, including a permanent wave of the hair, by students of the Artiste School of Cosmetology, the owner hereby agrees that if the hair of the undersigned customer does not take a permanent wave, her hair or the portion of her hair which does not take the wave, will be rewaved free of charge within thirty (30) days from the date hereof. Owner does not guarantee that the wave will not be affected by the natural growth of the hair.

IN CONSIDERATION of the foregoing services to be performed by the students of Artiste School of Cosmetology, and the foregoing undertaking, the undersigned customer agrees to and does hereby assume all risk of damage and loss to all persons or property as a result of any or all injury to same arising from any and all services rendered by the students of Artiste School of Cosmetology whether such injury is caused by accident or the negligence of the school, its owners, students, servants or agents, or otherwise and agrees to indemnify and hold harm free the school, its owners, students, servants and agents with respect to same; and the undersigned customer does hereby release and forever discharge the school, its owners, students, servants and agents from any and all claims for loss or damage resulting therefrom.

Dated this 8 day of Janaurv. 1974.

Names/ Geneva Dixon_

Address 109 Depot St.. Jonesoro

Phone 753-2308._

      . See appendix.


author: WALKER, Presiding Judge.

text:
    David Lee ANDERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 8, 1976.
    Charles D. Susano, Jr., and Barry G. Zepke, Knoxville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert B. Littleton, Asst. Atty. Gen., Nashville, John B. Hagler, Asst. Dist. Atty. Gen., Cleveland, for appellee.
   OPINION

WALKER, Presiding Judge.

In two cases tried together without the intervention of the jury, the trial judge found the appellant, David Lee Anderson, guilty of disturbing the peace and of carrying a pistol. He fixed the fine at $50 in each case.

The appellant is a Knoxville police officer whose brother was arrested on or about November 3, 1974, and was held in the Polk County jail at Benton. The appellant, in civilian clothes, went there to see about him. On arriving at the jail, he went in the radio dispatch room and asked the jailer, W. T. Biggs, to see his brother.

By the state’s evidence the appellant, who did not identify himself as a Knoxville officer, became excited and upset when he learned that his brother (not a juvenile) was incarcerated in a juvenile cell. He argued with Biggs and when Biggs, age 67 and a cripple, got up and approached him, the appellant shoved him and then pushed Fred Gaston, the radio dispatcher. Lloyd Blackwell, a policeman of the City of Benton, placed the appellant under arrest for disturbing the peace. A search of him at that time disclosed that he had a loaded pistol in a shoulder holster.

The appellant testified that he and Biggs argued about his brother being confined in a juvenile cell but that he did not touch Biggs at all. He said that Biggs arrested him and that he then asked to go out and lock up his car. When he started out, Ga-ston pushed him. By his testimony he created no disturbance and violated no law. The evidence is undisputed that the Chief of Police of Knoxville had issued a directive in accordance with TCA 39—4902 authorizing officers to wear their weapons off duty.

By TCA 39-1213 it is declared unlawful for any person to disturb the peace of others by conduct calculated to provoke violence or a violation of the law.

By the state’s witnesses, the appellant shoved and pushed the jailer and radio dispatcher at the Polk County jail after an argument between the jailer and the appellant over the incarceration of the appellant’s brother. This conduct by the appellant in the Polk County jail was calculated to provoke violence or a violation of the law and the trial judge’s finding of guilt of disturbing the peace must be sustained. Although the first clause of TCA 39-1213 was declared unconstitutional due to over-breadth by Baxter v. Ellington, D. C., 318 F.Supp. 1079 (1970), the second clause which we here consider is in effect.

The judgment of guilt of disturbing the peace is affirmed.

We reverse the conviction of carrying a pistol.

TCA 39-4902 authorizes the appellant to carry a pistol. The state argues that this statute which exempts, inter alia, policemen from the provisions of TCA 39-4901 (Carrying dangerous weapons) is applicable only where those policemen are within their territorial jurisdictions.

No language of limitation appears from the face of the statute. Penal statutes are strictly construed in favor of an accused. Chadwick v. State, 201 Tenn. 57, 296 S.W.2d 857.

TCA 39-4902 permits the carrying of weapons by a policeman “ . . . (A)t all times . . . regardless of his regular duty hours or assignments; . . . .’’The plain meaning of this language means that the officer’s regular duties and assignments are not to be considered in determining whether or not an officer is entitled to the benefit of this statute. TCA 39-4902 contemplates that off-duty policemen may carry their weapons at all times pursuant to a written directive by the executive director of the organization to which he is attached or employed. This is regardless of his regular duty hours or assignments and is not limited by his territorial jurisdiction or by geography. The Legislature in enacting this statute recognized that a police officer, in our modern mobile society, frequently moves across county lines and may live in one county and work for a law enforcement agency in another. Nothing in the statute suggests that the protection afforded policemen is limited by geography. The statute must be construed in favor of the appellant.

The conviction for carrying a pistol is therefore reversed and dismissed.

The conviction for disturbing the peace is affirmed.

DWYER and DUNCAN, JJ., concur.


author: POPE, Justice.

text:
    S. AND G. CONSTRUCTION COMPANY, INC., et al., Relators, v. Bob BULLOCK et al., Respondents.
    No. B-6203.
    Supreme Court of Texas.
    Jan. 12, 1977.
    Rehearing Denied Feb. 16, 1977.
    Stayton, Maloney, Hearne & Babb, Douglass D. Hearne and William M. Knolle, Austin, for relators.
    John Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Austin, for respondent.
   POPE, Justice.

S and G Construction Company and their -assignees seek a mandamus commanding the Honorable Bob Bullock, Texas Comptroller of Public Accounts, to pay a judgment which relators obtained against the University of Texas. We order the issuance of the mandamus addressed to the comptroller only.

The members of the Board of Regents of the University of Texas are included'' as respondents, but this court does not have jurisdiction over the Board in this kind of proceeding. Superior Oil Company v. Sadler, 458 S.W.2d 55 (Tex.1970). The comptroller, however, is subject to this court’s original mandamus powers, and a mandamus may issue if there is a clear legal duty on the part of the comptroller to issue the warrant. Bullock v. Calvert, 480 S.W.2d 367 (Tex.1972); Texas Nat. Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939).

All of the relevant facts are admitted by the parties. The relator construction company has a final judgment in the principal amount of 849,674.90 dollars against the University of Texas for additional work that it performed under a contract for the construction of university married students’ apartments. The Board of Regents of the University of Texas v. S & G Construction Company, 529 S.W.2d 90 (Tex.Civ.App.1975, writ ref’d n. r. e.). The Board of Regents and respondent comptroller acknowledge the debt, the judgment, and that at all relevant times there have been funds on hand from the Available University Fund sufficient to pay the claim.

The comptroller has not paid the claim, because he has not been furnished a voucher approved by the Board of Regents. Article 4357 of Texas Revised Civil Statutes prohibits the preparation of a warrant in the absence of an audited claim, verified by affidavit to its correctness. The final judgment and the stipulation of the parties made in court, satisfy all of the statute’s salutary protective purposes.

The Board of Regents has not approved a voucher for the amount of the claim because of its belief that no legislative appropriation was made for payment of a judgment for consequential damages. The Board of Regents understandably did not wish to bear the risk for its approval for payment of an unappropriated sum of money. Nichols v. State, 11 Tex.Civ.App. 327, 32 S.W. 452 (1895, writ ref’d).

The nature of the controversy which was finally resolved by the judgment in favor of S and G Construction Company is explained in the opinion of the court of civil appeals. The construction company claimed damages arising from the breach of contract by the Board of Regents in failing to supply accurate and reliable plans, drawings and specifications. By reason of the breach, the construction company had to make many changes in the construction on a day-to-day basis, often without any plans at all.

It is our opinion that the damages evidenced by the judgment, whether they be called consequential damages or damages under the contract, were payable under the broad terms of the appropriation acts.

Interest which accrues on the Permanent University Fund is known as the Available University Fund, and that fund may be spent by the Board of Regents only if the legislature has made an appropriation of the funds. Tex.Const. art. VII §§ 11, 11a; Tex.Educ.Code Ann. § 66.03 (1969). In our opinion, the identical provisions in each of the General Appropriation Acts for 1971, 1973 and 1975 have authorized payment of a judgment from funds appropriated to the University of Texas system. Tex.Laws 1971, ch. 1047, art. 4, at 3694-96; Tex.Laws 1973, ch. 659, art. 4, at 2089-2090; Tex. Laws 1975, ch. 743, art. 4, at 2729-2731. These are the words of the appropriation acts:

3. The residue of the Available Fund allocable to The University of Texas System is hereby appropriated for the purpose of retiring obligations incurred under the authority of Article VII, Section 18 of the Texas Constitution, and pursuant to the authorization of Article VII, Section 11a of the Constitution for permanent improvements, new construction, equipment, repairs and rehabilitation, physical plant operation and maintenance and educational and general activities of The University of Texas at Austin, and for new construction authorized by the Legislature, equipment, major repairs and rehabilitation at The University of Texas Medical Branch at Galveston . . . . [Emphasis added.]

Payment is authorized broadly for permanent improvements, new construction, equipment, repairs and rehabilitation, physical plant operation, and maintenance and education and general activities of the University of Texas at Austin. We conclude that there are no disputed questions of fact in this matter and that there is a clear duty upon the comptroller to pay the final judgment from the Available Fund. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1976).

The petition for writ of mandamus is accordingly granted, and the clerk of the supreme court is ordered to issue the writ.