author: SPURLOCK, Justice.

text:
    Chester Paul POTTER et al., Appellants, v. Dr. W. E. CRUMP et al., Appellees.
    No. 17855.
    Court of Civil Appeals of Texas, Fort Worth.
    Aug. 18, 1977.
    Rehearing Denied Sept. 15, 1977.

      Bader, Wilson, Menaker, Cox & Branson, Bertrán T. Bader, III, Frank L. Branson, Dallas, for appellant Chester Paul Potter.
    Gardere, Porter & DeHay, Gordon H. Rowe, Jr., Dallas, for appellant/intervenor Industrial Indemnity Co.
    Fillmore & Camp, and George R. Carlton, Jr., Fort Worth, for appellee Dr. W. E. Crump.
    Fillmore, Lambert, Farabee, Purtle & Lee, Larry L. Lambert, Wichita Falls, for appellee Dr. Elsie A. Smith.
    Anderson, Henley, Shields, Bradford, Pritchard & Miller, and C. A. Searcy Miller, Dallas, for appellee Bethania Hospital.
   OPINION

SPURLOCK, Justice.

This medical malpractice case was brought by an injured worker against two doctors and the hospital responsible for his treatment following an injury sustained while in the course and scope of his employment. The workmen’s compensation carrier intervened, asserting its subrogation rights. Each defendant moved for a summary judgment on the sole ground that the cause of action was barred by the two-year statute of limitations. The motions were granted. Among the issues presented by this appeal is whether this is a third party suit within the meaning of art. 8307, § 6a , and whether the amendment to this article started the running of the statute of limitations on its effective date.

We reverse and remand.

Both plaintiff and intervenor have appealed, on essentially the same grounds: the cause of action is not barred by the two-year statute of limitations, art. 5526; the statute of limitations was tolled during the pendency of the workmen’s compensation claim, and the amendment of art. 8307, § 6a did not cause the statute of limitations to begin to run. Instead, it began running when the compromise settlement agreement approved by the Industrial Accident Board was paid by the carrier.

Plaintiff, Chester Paul Potter, suffered a right inguinal hernia on January 18, 1972, while in the course and scope of his employment. On April 24, 1972, surgery was performed to repair the injury at Bethania Hospital, by Dr. W. E. Crump, with Dr. Elsie A. Smith administering a spinal anesthetic. The first day after surgery Potter realized some injury had occurred that affected his right leg. There is summary judgment evidence that a spinal nerve was injured during the surgery, the administering of the anesthetic, or the post surgery treatment. The surgeon treated Potter for the disability to his right leg for a period of time following surgery. Deposition testimony is to the effect that Potter’s disability has continued and will probably continue permanently. The following undisputed dates and the applicable law are determinative of whether the cause of action is barred by the two-year statute of limitations:

January 18, 1972: An industrial accident covered by workmen’s compensation insurance occurred, as a result of which Potter sustained a hernia, a specific injury with limited benefits available under § 12b of art. 8306 in the event surgery therefor was successful.
April 24, 1972: Surgery for this injury was performed. The alleged medical malpractice arose out of this surgery and medical treatment. As a result of the alleged negligence plaintiff sustained a general injury to his body, for which increased benefits for total disability are payable under § 10 of art. 8306.
September 1, 1973: This is the effective date of an amendment to the Workmen’s Compensation Act, art. 8307, § 6a. Because of this amendment, an injured party no longer is required to elect to proceed against his employer’s compensation carrier or the third party tort-feasor.
January 30, 1974: The Industrial Accident Board approved a compromise settlement agreement settling plaintiff’s claim against intervenor, the compensation carrier, for a total of $14,648.22.
January 6, 1976: Potter filed the instant suit for medical malpractice, alleging that intervenor should be reimbursed from any recovery. Industrial Indemnity Company later intervened.

Each of the defendants filed a general denial and pled the affirmative defense that plaintiff’s right to proceed with his third party action accrued as soon as he discovered the injury, which was more than two years before the suit was filed, and therefore art. 5526, the two-year statute of limitations, barred his cause of action. The defendants also claimed that art. 8307, § 6a, which became effective September 1, 1973, gave plaintiff the right to pursue both his workmen’s compensation claim and his third party action simultaneously. Before the effective date of the above described Act, plaintiff could pursue his claim for workmen’s compensation insurance, and during this period of time the statute of limitations concerning his third party action was tolled. Defendants argue that this tolling effect ceased on September 1, 1973, and suit was not filed for more than two years after that date.

Defendants further argue that a medical malpractice action is not a third party action within the meaning of the applicable statute, since whatever injury was caused by defendants, if any, occurred after the date of the industrial accident and was not a part of the industrial accident causing the hernia. If they are correct, then the malpractice action must be filed within two years of the discovery or it is barred by the effect of art. 5526.

Not all jurisdictions are in accord as to whether a medical malpractice action qualified as a third party action in workmen’s compensation cases. 28 A.L.R.3d 1066, 1079.

In 2A of A. Larson, Workmen’s Compensation Law, § 72.61 (1976), the law is stated as follows:

§ 72.61 General liability of physicians as third parties
When a physician has no special status under the act conferring immunity, every jurisdiction dealing with the question has recognized in some form that a suit will lie against a physician who has aggravated a compensable injury by malpractice.

In texas, the law is well settled that an action for medical malpractice qualifies as a third party action in workmen’s compensation cases. McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964); Hoffman v. Houston Clinic, 41 S.W.2d 134, 138 (Tex.Civ. App.—Galveston 1931, writ dism’d); Pedigo & Pedigo v. Croom, 37 S.W.2d 1074, 1076 (Tex.Civ.App.—Eastland 1931, writ ref’d).

Appellee Dr. W. E. Crump draws an analogy in his brief concerning a hypothetical claimant who is injured on the job by a lathe, and several weeks later he is struck by a car which has run a red light. It is true, as appellee Crump contends, that his hypothetical injured worker is not precluded by the workmen’s compensation law. from suing the negligent automobile driver for the damage done by that driver. That situation, however, is not analogous to the case before us. In Dr. Crump’s analogy the driver of the automobile is an intervening cause; however, the alleged negligence of the doctors and the hospital is not an intervening cause.

The law in Texas provides that where one has received a personal injury as a result of the negligence of another, he can recover all his damages from the original tort-feasor for all damages proximately traceable to the primary negligence, including all subsequent aggravations the probability of which the law regards as a sequence and natural result likely to flow from the original injury. City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480, 483 (1943). This rule applies equally in a case where the initial injury was covered by workmen’s compensation insurance, such as Hoffman v. Houston Clinic, supra, as well as in a personal injury case where no workmen’s compensation insurance is involved, such as Cannon v. Pearson, 383 S.W.2d 565, 567 (Tex.1964). The Texas Supreme Court in Cannon stated that one who wrongfully injures another is liable in damages for the consequences of negligent treatment rendered by a doctor selected by the injured person in good faith and with ordinary care. Because of this rule of law, the Industrial Indemnity Company paid substantially greater benefits on Potter’s claim on the basis of the additional injuries sustained as a result of the alleged malpractice which was a consequence of the industrial accident.

Intervenor contends that the phrase “injury for which compensation is payable” as found in art. 8307, § 6a is broad enough to include any additional damages Potter sustained as a result of the hernia operation, which caused intervenor to pay increased compensation benefits.

Claims against third parties, as authorized under the workmen’s compensation law, do not need to be limited to the original tort-feasor whose conduct gave rise to the claim, but they may include doctors who are retained by the injured party for the medical treatment which is necessitated by the on-the-job injury.

The Supreme Court of Missouri in Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 918 (1950), has considered the merits of allowing malpractice actions as third party actions in workmen’s compensation cases. In that well-reasoned opinion, the Court wrote:

“. . . We perceive no reason for sub-rogating an employer to his employee’s rights against a tort-feasor involving an original injury and denying that subrogation against a tort-feasor, be he physician or other person, aggravating the original injury and adding to the employer’s liability through increased compensation for such aggravation under the Act. Greater reason exists for allowing an employer subrogation for the compensable aggravation than for an original ‘accident arising out of and in the course of’ the employee’s employment, as the employer is more likely to be without personal fault in connection with the aggravation.

We hold that the trial court erred in granting summary judgment for defendants, because this proceeding qualifies as a third party action within the meaning of art. 8307, § 6a.

The appellants also contend that the trial court erred in granting defendants’ motions for summary judgment, because the cause of action is not barred by the two-year statute of limitations as set forth in art. 5526.

Before the effective date of its amendment, art. 8307, § 6a had the effect of tolling the statute of limitations. The Texas Supreme Court has addressed the statute of limitations issue for third party actions in workmen’s compensation cases in Camp bell v. Sonford Chemical Company, 486 S.W.2d 932, 934 (Tex.1972). The Court wrote:

“. . . When a claimant elects to proceed under workmen’s compensation statutes and qualifies for an award thereunder, the cause of action of the compensation carrier does not accrue against a third party until the amount of the award made by the Industrial Accident Board is paid by the carrier or until the claimant obtains a final judgment in a court of competent jurisdiction against such insurance carrier. When either of these events occur, the cause of action matures against the third party and the suit authorized by Section 6a must be filed on such cause of action either by the carrier or by the insured within two years from that date. . . .”

In the case at bar, the cause of action for the medical malpractice did not arise until the award was paid by the carrier. At that time, the two-year statute of limitations began to run. The compromise settlement agreement was entered into on January 30, 1974. The actual award was paid sometime after that date, but the briefs do not indicate the exact date that the award was paid. Potter, however, filed his suit against the three defendants for the alleged medical malpractice on January 6, 1976. Since Potter’s cause of action against these defendants did not mature until the award was paid, we hold that Potter timely filed his original petition in this cause before the statute of limitations had run.

Another facet of the statute of limitations problem in this case is whether the amendment to art. 8307, § 6a, effective September 1, 1973, caused the statute of limitations to begin running on that date on plaintiff’s cause of action. This amendment provided that an injured worker could initiate his third party action before he completed his compensation action without waiving such compensation action. Did this statutory change commence the running of the statute of limitations on all third party actions in existence on September 1, 1973, so that the statute of limitations on all third party actions would run on September 1, 1975 ? We think that the change in the statute did not have that effect.

The appellees have taken the position that the amendment to art. 8307, § 6a has retrospective application; however, art. 8309, § 3b provides that no right or remedy “shall be in any way affected by any of the amendments herein made to the original law hereby amended, but all such rights, remedies, . . . shall remain and be in force as under the original law just as if the amendments hereby adopted had never been made . . . .” This convinces us that the amendment to art. 8307, § 6a is intended by the Legislature to have prospective application only. This precise question was recently considered by the Dallas Court of Civil Appeals in Robinson v. Buckner Park, Inc., 547 S.W.2d 60 (Tex.Civ. App.—Dallas 1977, writ ref’d n.r.e.), and the Court held that the claimant’s right to bring a third party action is governed by art. 8307, § 6a as it existed prior to the amendment effective September 1, 1973. We agree with the Dallas Court of Civil Appeals on this point of statutory interpretation.

We have sustained all the appellants’ points of error. This cause is reversed and remanded.

      . All references to statutes are to Tex.Rev.Civ. Stat.Ann.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    Fred BELL, Appellant, v. J. L. CRAIG et al., Appellees.
    No. 19235.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 23, 1977.

      Michael M. Daniel, Dallas Legal Services, Foundation, Inc., Dallas, for appellant.
    Phil Burleson, Steve Sumner, Burleson, Bondies, Baldwin & Pate, Dallas, for appel-lees.
   AKIN, Justice.

This is an appeal by Fred Bell, interve-nor, from a temporary injunction granted plaintiffs, Dallas police officers, enjoining the city and its Civil Service Board from conducting hearings on complaints previously filed by Bell and two others against the officers. Bell filed his petition in intervention after counsel for the police officers and the city stipulated to certain facts in lieu of a hearing and before the city answered and the injunction issued. Plaintiffs filed a motion to strike the intervention, but failed to obtain a ruling from the court before the injunction issued. Bell appeals. We reverse the order of the trial court and dissolve the injunction because the injunction fails to comply with rule 683, in that it fails to set forth with specificity the reasons for the injunction.

This controversy is a sequel to our decision in Graves v. City of Dallas, 532 S.W.2d 106 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.), in which we held that the City Charter required the Civil Service Board to receive citizen complaints against police officers and to determine whether the charges had merit. Subsequently, the charter was amended, and this provision was deleted. This suit was filed when the Civil Service Board scheduled hearings on the complaints as directed by the mandate of this court in Graves.

Standing to Appeal

The police officers have filed a motion to dismiss the appeal, contending that Bell has no standing to appeal. In this respect, appellees assert that Bell is not a party entitled to bring this appeal because Bell has not properly intervened. They contend that it is apparent from the record that the trial court did not allow Bell’s intervention because Bell is not mentioned in the order granting the temporary injunction. It is clear from the petition in intervention that Bell was intervening in the temporary injunction proceedings as well as the suit on the merits. Appellees filed a motion to strike the intervention, but never obtained a ruling on the motion. Rule 60 provides that a “party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party.” Thus, the intervenor is not required to obtain the trial court’s approval in order to intervene; the burden is on the party opposing the intervention to secure an order striking the petition in intervention. 1 R. McDonald, Texas Civil Practice, § 3.50 (rev. ed. 1965); see McWilliams v. Snap-Pac Corp., 476 S.W.2d 941, 949 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.). Since the petition in intervention was filed before the trial court entered its order granting the temporary injunction, it was, absent an order striking the intervention, sufficient to make Bell a party to the temporary injunction proceedings. See Delley v. Unknown Stockholders of Brotherly and Sisterly Club of Christ, Inc., 509 S.W.2d 709, 717 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Comal County Rural High School District v. Nelson, 158 Tex. 564, 314 S.W.2d 956, 957, rev’g, 311 S.W.2d 500 (Tex.Civ.App.—Austin 1958).

The officers next argue that Bell cannot appeal from the granting of the temporary injunction since he was not enjoined from doing anything and is not, therefore, aggrieved by the judgment. We cannot agree. Although Bell was not personally enjoined, the injunction effectively prevents him from proceeding with his complaint. Consequently, he was adversely affected by the injunction. In Giles v. Poole, 239 S.W.2d 665, 668-69 (Tex.Civ.App.—Austin 1951) writ dism’d as moot, 151 Tex. 224, 248 S.W.2d 464 (1952), the court permitted the high bidder on a lease advertised by a state board to appeal from a temporary injunction preventing the board from issuing the lease, saying that since the high bidder was a party and was adversely affected by the injunction, it could appeal even though not specifically enjoined. Similarly, rule 683 contemplates that one can be bound and, consequently, aggrieved by an injunction, even though not specifically named in the injunction. Accordingly, the police officers’ motion to dismiss is overruled.

Compliance with Rule 683

Bell argues that the trial court erred in granting the injunction since the order fails to set forth with specificity the reasons for the issuance of the injunction. We agree. Rule 683 provides that an injunction must set forth specifically the reasons why irreparable injury will ensue if the temporary injunction is not granted. State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.1971). This order sets forth no reasons for its issuance. It merely recites that the facts have been stipulated and that only questions of law remain; it does not set out what facts were stipulated. In Charter Medical Corp. v. Miller, 547 S.W.2d 77, 78 (Tex.Civ.App.—Dallas 1977, no writ), this court held that an injunction setting forth conclusory statements of irreparable injury, rather than specific factual reasons, failed to comply with rule 683. Similarly, since this injunction fails to give any reason for its issuance as mandated by rule 683, we dissolve the injunction.

Injunction dissolved.

      . All rule citations are to Tex.R.Civ.P.


author: ROBERTSON, Justice.

text:
    CITY OF DALLAS et al., Appellants, v. DALLAS COUNTY HOUSEMOVERS ASSOCIATION, Appellee.
    No. 19248.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 24, 1977.

      Joseph G. Werner, Asst. City Atty., Dallas, for appellants.
    Gary R. Stephens, Stephens & Stephens, Dallas, for appellee.
   ROBERTSON, Justice.

Dallas County Housemovers Association sued the City of Dallas, Texas, and various city officials, seeking to enjoin the enforcement of certain sections of chapter 62 of the Dallas City Code which regulates the moving of buildings within the city. The housemovers claimed that certain sections of the ordinance were unconstitutional restrictions upon their alleged right to conduct an otherwise lawful business. After trial without a jury, the district court held that the challenged sections were invalid and permanently enjoined the city from enforcing the ordinance. Since we hold that injunctive relief was not proper, we reverse and dissolve the injunction.

The ordinance complained of restricts various facets of the housemoving business. Section 6204(a) deals with inspection of vehicles and equipment used in transporting buildings on the city streets, and section 6211 prohibits the importation of buildings and structures from outside the city limits except under certain specified circumstances. Section 6213(a) provides that the total width of transported buildings shall not exceed the width of any street used along the route, and section 6213(b) regulates the maximum height of buildings and structures which may be transported without giving written notice to utility companies before the move.

Jurisdiction

Before we address the merits of this controversy, we must decide whether the trial court had jurisdiction to enjoin the enforcement of this penal ordinance. Ordinarily, a civil court is not concerned with the enforcement of criminal laws; the validity of a penal ordinance is an issue normally reserved to the courts of criminal jurisdiction. City of Fort Worth v. Craik, 411 S.W.2d 541, 543 (Tex.1967); Crouch v. Craik, 369 S.W.2d 311, 315 (Tex.1963). Civil courts may enjoin the enforcement of a penal ordinance only where the ordinance is void and its enforcement will result in irreparable injury to vested property rights. City of Fort Worth, 411 S.W.2d at 542; Crouch, 369 S.W.2d at 315. This rule encompasses three requirements: (1) voidness, (2) vested property right, and (3) irreparable harm to that right. If the plaintiff fails to show any of these, a civil court cannot issue an injunction against enforcement of the ordinance. Thus, where the plaintiff fails to show that irreparable harm will occur, the civil courts cannot enjoin enforcement of a penal provision. Better Home Products of Texas, Co. v. City of Dallas, 517 S.W.2d 373, 374 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.).

The requirement of irreparable injury is related to the adequacy of the remedy at law. State v. Logue, 376 S.W.2d 567, 572 (Tex.1964). The supreme court has taken the position that the opportunity to assert the unconstitutionality of a penal provision as a defense to a criminal prosecution is an adequate remedy at law. Id.; City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528, 530 (1894). The courts have found irreparable injury where the enforcement of the penal provision would result in the destruction of the property before the validity of the provision could be tested in the courts. Adams v. Antonio, 88 S.W.2d 503, 506-07 (Tex.Civ.App.—Waco 1935, writ ref’d) (per Alexander, J.); see Logue, 376 S.W.2d at 571. The courts have also found irreparable injury where the penal provision operated against the potential customers of a business, as well as against the operator. City of Austin, 28 S.W. 529-30; see Logue, 376 S.W.2d at 570-71; but see Shoppers Fair, Inc. v. City of Houston, 406 S.W.2d 86 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.). In City of Austin, the court reasoned that the operator would be effectively prevented from ever challenging the validity of the provision because his customers would be reluctant to expose themselves to criminal liability in order to test the law. Thus, without a customer willing to accept that risk, the businessman could not violate the provision and test its validity in a criminal prosecution. The businessman had, therefore, no adequate remedy at law. However, neither of these exceptions is present here, and we do not perceive any other exception on these facts. The housemovers are free to disregard the ordinances and test their validity as a defense to prosecution. No penalty is prescribed for those employing housemovers in violation of the ordinances, and, with respect to the storage regulation, no customer is even remotely involved in the acts which constitute the violation. The housemovers have not shown that the enforcement of the ordinance will cause them any harm other than that inherent in prosecution for an offense. This does not constitute irreparable harm in this context. Logue, 376 S.W.2d at 572. Therefore, we must hold that the house-movers have failed to establish that they would suffer an irreparable injury.

Reversed and injunction dissolved.


author: GUITTARD, Chief Justice.

text:
    Leon SMITH, Substitute Trustee, Appellant, v. Robert G. VIAL, Trustee, Appellee.
    No. 19299.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 25, 1977.
    John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellant.
    Bruce Monning, Wynne & Wynne, Wills Points, for appellee.
   GUITTARD, Chief Justice.

In this appeal from a temporary injunction restraining a trustee’s sale, the principal question is whether the plaintiff failed to show a probable injury. We hold that probable injury is sufficiently shown and sufficiently recited in the court’s order. Accordingly, the order granting the temporary injunction is affirmed.

The record shows that at the time of the hearing an earlier action was pending in one of the district courts of Travis County, in which Annie Isbell, the present appellant, sought to recover the balance due on a promissory note given as part payment for a certain tract of land in Rockwall County purchased by appellee Vial. The original petition in that suit sought judicial foreclosure of a deed of trust lien, but an amended petition dropped the foreclosure claim, and Isbell caused notices to be posted for an extrajudicial trustee’s sale. Vial counterclaimed in that suit for rescission of the sale and return of his payments of purchase money on the ground of fraud, and in the alternative he claimed damages. Vial also sought in the Travis County suit a temporary injunction restraining the trustee’s sale, but that relief was denied.

After denial of the temporary injunction in Travis County, Isbell caused notices of trustee’s sale to be posted again, and Vial then brought the present action in the district court of Rockwall County to restrain the sale. After hearing, the court granted the temporary injunction, and Isbell appeals.

Isbell’s first point is that Vial has failed to show that he would suffer a probable injury. She asserts that the only ground of injury Vial alleges is that Vial will be unable to make a tender as required in his action for rescission if the trustee proceeds with the sale, but, she argues, such a tender would not be required in that event. Vial replies that the question of necessity of a tender of the property in order to maintain the action for rescission is sufficiently serious that the trial court had discretion to preserve the status quo by restraining the sale until his claim for rescission should be determined on the merits. We agree. The trial court was not required to decide the question of the necessity of the tender, but had discretion to preserve the status quo by temporary injunction until the claim for rescission could be decided on the merits. Branham v. Short, 526 S.W.2d 639, 642 (Tex.Civ.App.—Fort Worth 1975, no writ). This holding is consistent with our decision in Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 687 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.), in which we held that the trial court had discretion to preserve the status quo by temporary injunction restraining a foreclosure without deciding the merits of the question of usury, on which the right to foreclosure depended.

Appellant Isbell argues in her second point that the trial court’s order insufficiently states the reason for its issuance, as required by rule 683, Texas Rules of Civil Procedure. In this respect the order recites that Vial was entitled to the relief sought

. for the reason that unless Defendant is enjoined from foreclosing the Deed of Trust under which he is Substitute Trustee, Plaintiff may be effectively denied his right to maintain a cause of action for rescission of said Deed of Trust, Warranty Deed and Promissory Note executed contemporaneously therewith. [Emphasis added]

Isbell contends that the order is insufficient because it recites that Vial “may” be denied the right to maintain his right of rescission rather than that he “probably” will be denied such a right. We do not regard this difference as material. In Branham v. Short, supra, the temporary injunction was affirmed on the ground that otherwise the plaintiff “might have lost her cause of action for rescission.” We hold that the reason recited is sufficient to support issuance of a temporary injunction to preserve the status quo.

Finally, Isbell contends that the trial court erred in granting the temporary injunction after the identical claim had been denied by the district court of Travis County. She concedes that the rule of res judi-cata, as argued in her brief, does not apply to interlocutory orders. On oral argument, however, she contends that the trial court should not have issued the temporary injunction because of the pendency of the prior action in Travis County involving the same parties and subject matter.

We cannot consider this argument because Isbell did not present it in the trial court by plea in abatement or otherwise. Although counsel for Vial attempted to develop evidence bearing on a possible plea in abatement, Isbell’s counsel objected to that evidence on the ground that Isbell had made no such plea. Consequently, we must hold that Isbell waived the pendency of the Travis County suit as a matter in abatement of the present application for temporary injunction. This ruling is supported by the opinion of the supreme court in the leading case of Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1071 (1926), which expressly states that the pendency of an earlier suit, though a matter affecting jurisdiction, must be seasonably pleaded in abatement and that such a plea may be waived. These statements were reaffirmed by the supreme court in Ex parte Lillard, 159 Tex. 18, 314 S.W.2d 800, 805 (1958), and were followed by the Austin court of civil appeals in Day v. State, 489 S.W.2d 368, 371 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.). Cf. Johnson v. Avery, 414 S.W.2d 441, 443 (Tex.1966), holding that a party may be estopped to plead an earlier action in abatement.

Our holding of waiver of the plea in abatement concerns only abatement of the application for temporary injunction and will have no effect on any plea in abatement that may be filed with respect to the main action in Rockwall County. Neither do we pass on the question of whether appellee Vial must make a tender of the property in order to establish his claim for rescission.

Affirmed.


author: HALL, Justice.

text:
    The STATE of Texas on the relation of Lawrence WATKINS, Appellant, v. C. B. MORGAN, Appellee.
    No. 5811.
    Court of Civil Appeals of Texas, Waco.
    Aug. 31, 1977.
    Rehearing Denied Sept. 8, 1977.

      Walter Dick Kettler, Hall, Terrell & Kettler, Felipe Reyna, Dist. Atty., Waco, for appellant.
    J. David Dickson, Haley, Fulbright, Win-niford, Bice & Davis, Waco, for appellee.
   HALL, Justice.

This is a quo warranto proceeding. It was prosecuted by the State of Texas on the relation of Lawrence Watkins to oust appellee C. B. Morgan from the office of Mayor of the City of Beverly Hills and install Lawrence Watkins therein. After a hearing without a jury, judgment was rendered on July 22, 1977, that the State and Watkins take nothing. Motion for new trial was not filed by any party.

The State brought this appeal. Neither a transcript nor a statement of facts has been filed. However, a motion for extension of time to file transcript and statement of facts was filed with us by the State on August 19, 1977. We overrule this motion and dismiss the appeal for want of jurisdiction.

Rule 384, Vernon’s Tex.Rules Civ. Proc., provides as follows:

In an appeal in a quo warranto proceeding the appeal shall be perfected and the transcript and statement of facts filed in the Court of Civil Appeals within twenty days after final judgment or order overruling motion for new trial; provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, the court may grant a reasonable extension of time in which to file the record or any part thereof.

The timetable set forth in Rule 384 is mandatory and jurisdictional to a quo war-ranto appeal. State ex rel. Crawford v. Wagner, 203 S.W.2d 795, 797 (Tex.Civ.App. —San Antonio 1947, writ ref.); State ex rel. Burnet County v. Burnet County Hospital Authority, 495 S.W.2d 300, 302 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.); Wortham Independent School District v. State, 253 S.W.2d 495 (Tex.Civ.App.—Waco 1952, no writ). Because the State did not meet it, we are without jurisdiction in this case to grant the motion for extension of time to file the record or to entertain the appeal.

The State argues that because its motion for extension of time was filed within fifteen days of the date the transcript and statement of facts were due to be filed, the motion was timely under the provisions of Rule 21c, Vernon’s Tex.Rules Civ.Proc., and is therefore properly before us. We disagree.

Rule 21c provides as follows:

The failure of a party to timely file a transcript, statement of facts, motion of rehearing in the court of civil appeals or application for writ of error, will not authorize a dismissal or loss of the appeal if the defaulting party files a motion reasonably explaining such failure in the court whose jurisdiction to make the next ruling in the case would be affected by such failure. Said motion must be filed within fifteen (15) days of the last date for timely filing provided in the applicable rule or rules sought to be avoided, although it may be acted upon by the court at a date thereafter.

Rule 21c applies to the appeals of civil cases, generally. Rule 384 sets forth a timetable specifically governing appeals in quo warranto proceedings. Where a general statute and a specific statute conflict, the specific controls over the general. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879, 881 (1947); Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (Tex.Com.App.1929, opinion adopted).

The State’s motion for extension of time to file transcript and statement of facts is overruled, and this appeal is dismissed for want of jurisdiction.


author: NYE, Chief Justice.

text:
    Abram GONZALES and Modesta Gonzales, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. 1155.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 31, 1977.
    Rehearing Denied Sept. 15, 1977.

      Anthony F. Constant, Corpus Christi, for appellants.
    H. K. Howard, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lee.
   OPINION

NYE, Chief Justice.

This is an invasion of privacy action. Trial was to a jury which answered special issues in favor of the plaintiffs. The trial court, however, granted the defendant’s motion for judgment non obstante veredicto and entered a take nothing judgment favoring the defendant telephone company. The plaintiffs have perfected their appeal to this Court.

The controversy arose initially when the plaintiffs refused to put up an additional $50.00 deposit for the two phones they had in their residence. After several attempts by the telephone company to obtain the deposit, the company informed the plaintiffs that their telephone service was being disconnected. A Mike Johnson, an employee of the telephone company, went to the plaintiffs’ home to remove the telephones. Since no one was present at the plaintiffs’ home, Johnson opened the screen door, a solid wooden door and proceeded into the hallway where he removed the first telephone. He then went to plaintiffs’ bedroom where he cut the telephone cord and removed the second telephone. Mrs. Gonzales testified that the screen door to her home had been locked but was broken and that mud was tracked into the house when she returned home. Johnson, the telephone company employee’s testimony was different from that of Mrs. Gonzales. He testified that he thought he had permission to enter the house. He stated that he did not look for or ring a door bell because it was his experience that door bells were generally not in working order. He said that the doors were unlocked, that he announced, while inside the house, who he was and for what purpose he was there. He said no one answered. He stated that he did not remove any other objects except the telephones, nor did he view any personal matters belonging to the plaintiffs. Johnson testified that after disconnecting the phones, he left, locking the front door behind him. He testified that he was in the house approximately three minutes.

The first person to discover that the telephone company had in fact entered into the Gonzales’ home was their daughter, Socorro. She testified that when she came home from school she noticed that the screen door was broken and mud was tracked on the carpet inside the house. Mrs. Gonzales called the police department who suggested she contact the telephone company. Mrs. Gonzales contacted the company but was informed that she could not get any information before the following Tuesday. On that day Mrs. Gonzales contacted a Mr. Hogan who was a supervisor for the telephone company. Hogan set up an appointment to meet Mrs. Gonzales at her home and to discuss the problem. Hogan testified at the trial that it was the policy of Southwestern Bell to make no entry into a house without authority. According to Mr. Hogan Mrs. Gonzales asked him by what authority her house had been entered. Hogan replied that he would check it out, get information, and come by Mrs. Gonzales’ home to look at the damage to the screen door and carpet. Hogan testified that when he went to the Gonzales’ house, he observed that the screen door was not locked. He traced the service order calling for the removal of the telephone equipment to their employee Johnson.

The case was submitted on the basis of an invasion of privacy and for damages for mental anguish to Mr. and Mrs. Gonzales. In response to the special issues submitted, the jury found:

1) that Johnson, the telephone company’s employee, entered the plaintiffs’ home without consent, either expressed or implied;
2) that Johnson’s entry into the plaintiffs’ home was done with the intent to deprive the plaintiffs of the private use of their home;
3) that the telephone company should have foreseen that the entry into the plaintiffs’ home would result in injuries to the plaintiffs;
4) that the telephone company’s employee’s entry into the plaintiffs’ home was a proximate cause of the mental anguish suffered by Mr. and Mrs. Gonzales, the plaintiffs;
5) that the telephone company’s employee’s entry into the plaintiffs’ home was not at a reasonable hour; and
6) that Mr. and Mrs. Gonzales each suffered $1800.00 in damages for mental anguish.

After the jury had returned its findings and in response to the telephone company’s motion for judgment n. o. v. the trial court entered a take nothing judgment against the plaintiffs.

The plaintiffs’ points of error on appeal are that the trial court erred in granting judgment n. o. v. because a wrongful intentional invasion into plaintiffs’ home does constitute the tort of invasion of privacy and that there was sufficient evidence to support each of the special issues submitted by the jury.

The appellee telephone company contends in effect that there is no cause of action in Texas for invasion of privacy resulting from an entry into a person’s home, especially when the person is not present. Additionally, the company attacks each of the special issues, including the damage issues, with no evidence and insufficient evidence points, and in addition they attack the damage issues as being against the greater weight and preponderance of the evidence and excessive.

Prosser has divided invasion of privacy into a complex of four torts tied together by a common name. See W. Prosser, Handbook of the Law of Torts § 117 (4th ed. 1971); Prosser, Privacy, 48 Calif.L.Rev. 383 (1960). These four torts are: 1) Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; 2) Public disclosure of embarrassing private facts about the plaintiff; 3) Publicity which places the plaintiff in a false light in the public eye; and 4) Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. See Ind. Foundation, etc. v. Texas Ind. Acc. Bd., 540 S.W.2d 668 (Tex.Sup.1976).

The only form of the four torts of invasion of privacy that is involved in this appeal is that of intrusion upon the property of the plaintiffs. This cause of action is an intentional tort analogous to trespass and battery in the protection of personal integrity. See McCormick v. Haley, 37 Ohio App.2d 73, 307 N.E.2d 34 (1973), quoting LeCrone v. Ohio Bell Telephone Co., 120 Ohio App. 129, 201 N.E.2d 533 (1963). It includes not only physical invasion of a person’s property, but also eavesdropping upon private conversations by wiretapping, microphones or spying into windows of a home. See Walker v. Whittle, 83 Ga.App. 445, 64 S.E.2d 87 (1951); McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810 (1939); Pritchett v. Board of Commissioners, 42 Ind.App. 3, 85 N.E. 32 (1908); Souder v. Pendleton Detectives, 88 So.2d 716 (La.App.1956); Welsh v. Pritchard, 125 Mont. 517, 241 P.2d 816 (1952); Moore v. New York Elevated R. R., 130 N.Y. 523, 29 N.E. 997 (1892); Sutherland v. Kroger Co., 144 W.Va. 673, 110 S.E.2d 716 (1959); Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958). The Restatement of Torts § 867 also recognizes a cause of action based on the right of privacy.

In Texas, the supreme court in the case of Billings v. Atkinson, 489 S.W.2d 858 (Tex.Sup.1973) recognized for the first time the invasion of privacy as an actionable legal claim. The court summarized and said that: “. . . we follow the rule that an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted.” The court also noted that proof of actual damages is not necessary to a recovery. “Damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy because the injury is essentially mental and subjective, not actual harm done ‘to the plaintiffs’ body.’ ” (citing authorities).

The submission of the subject case to the jury follows essentially the same type of submission as in the Billings case, supra. The appellee does not, by counterpoints or cross-points of error, complain of any of the special issues or the way in which the case was submitted to the jury.

The jury chose not to believe the telephone company’s employee, Johnson. Johnson invaded the plaintiffs’ home without their permission. There is no question that the telephone company’s employee saw whatever there was to see in the plaintiffs’ bedroom and the other areas of their home. Whatever there was to see was the private property of the plaintiffs. This invasion of privacy by the telephone company’s employee into plaintiffs’ home was “. . . a willful tort which constitutes a legal injury.” Billings v. Atkinson, supra, at pg. 861. We hold that the trial court erred in entering a judgment non obstante veredicto.

The appellants’ points of error and the appellee’s cross-points of error concern no evidence, insufficient evidence and greater weight and preponderance of the evidence points of error. In considering these points we are guided in our determination by the rules laid down by the Supreme Court in In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) and the rules often cited in Calvert’s treaties “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L. Rev. 361 (1960). Having considered the entire record on appeal, we hold that the appellants’ points of error 1 through 4 should be sustained. Rosales v. Lara, 519 S.W.2d 245 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Hudson v. Gaines, 501 S.W.2d 734 (Tex.Civ.App.—Corpus Christi 1973, no writ); City of Austin v. Salazar, 241 S.W.2d 445 (Tex.Civ.App.—Austin 1951, writ ref’d n. r. e.). The record clearly demonstrates there was ample evidence to support each of the jury’s findings.

Where on appeal the appellate court determines that a judgment non ob-stante veredicto was erroneously entered the court must reverse the judgment of the trial court and enter a judgment in harmony with the verdict, unless the appellee’s cross-points are sufficient to vitiate the jury’s verdict. The telephone company by cross-points of error 1 through 4 contends that the evidence is factually insufficient to support the jury’s answer to special issues 1, 2, 4 and 5. We have considered all of the evidence and determine that these points should be overruled. Lastly, the telephone company by cross-points 5 through 8 complains of the award of damages to Mr. and Mrs. Gonzales as being against the greater weight and preponderance of the evidence so as to be manifestly unjust, or so excessive as to require a substantial remittitur. These points are also overruled.

Mr. and Mrs. Gonzales were damaged. Mrs. Gonzales testified that she was humiliated and that the incident made her sick to her stomach; that her stomach turned and ached; and she could not sleep at night because she wondered who had come into her home. She testified that it made her sick to her stomach because of the thought that somebody had broken into her home like a thief. She testified that she experienced nervousness, that she went to her doctor and received a shot and some medication from him; that she was so angry about it inside, that she did not think that she would ever forget it. It was her concern that her home had been invaded without her permission and that she had been treated as though she had no right to the privacy of her own home. She also testified that she felt badly because her neighbors assumed that she had not paid her phone bill and assumed that that was the reason her phones had been removed.

Mr. Gonzales testified that the incident made him feel “like the size of a red ant, as small as that.” This was a description that the jury was free to recognize as a feeling of loss of stature, self-esteem and humiliation. He testified that he felt that his rights had been invaded and he believed that the incident happened because he was a Mexican-American and if Ms house had been located somewhere other than on the west side of town, the entry into his house would not have been made by the telephone company’s employee.

There is no certain standard by which personal injury damages can be measured. Each case must stand on its own facts and circumstances, and a comparison with other cases on amounts of verdicts therein is of little or no help. Broesche v. Bullock, 427 S.W.2d 89 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.); J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.); Claunch v. Bennett, 395 S.W.2d 719 (Tex.Civ.App.—Amarillo 1965, no writ); Graham v. Morris, 366 S.W.2d 792 (Tex.Civ.App.—Amarillo 1963, no writ); Missouri Pacific Railroad Company v. Handley, 341 S.W.2d 203 (Tex.Civ.App.—San Antonio 1960, no writ); Higginbotham v. O’Keeffe, 340 S.W.2d 350 (Tex.Civ.App.—Amarillo 1960, writ ref’d n. r. e.); Green v. Rudsenske, 320 S.W.2d 228 (Tex.Civ.App.—San Antonio 1959, no writ); Hayter Lumber Co. v. Winder, 295 S.W.2d 730 (Tex.Civ.App.—Beaumont 1956, writ dism’d). This rule is based upon a sound policy consideration that the same loss will occasion different damages to different individuals depending upon mental attitude and the effect of the injuries on different people generally. The damages in cases of this nature cannot be proven with the certainty and accuracy as it can in some other cases. Continental Bus System, Inc. v. Toombs, 325 S.W.2d 153 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n. r. e.). Therefore, the question of damages, if not excessive, is properly left for the jury to determine. Rosenblum v. Bloom, 492 S.W.2d 321 (Tex.Civ.App.—Waco 1973, writ ref’d n. r. e.); South Texas Natural Gas Gathering Company v. Guerra, 469 S.W.2d 899 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Saper v. Rodgers, 418 S.W.2d 874 (Tex.Civ.App.—Houston [1st Dist.] 1967 writ ref’d n. r. e.).

We conclude therefore, that in the absence of a clear showing that passion, prejudice or other improper matters influenced the jury, the amount assessed will not be set aside in this Court as excessive. Borak v. Bridge, 524 S.W.2d 773 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Bond v. Duren, 520 S.W.2d 460 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.); Camco, Incorporated v. Evans, 377 S.W.2d 703 (Tex.Civ.App.—San Antonio 1964, writ ref’d n. r. e.).

We have carefully reviewed all the evidence in the light of the applicable rules. We do not find that the damages awarded by the jury under the circumstances, are against the greater weight or preponderance of the evidence, nor are they excessive. The judgment of the trial court is accordingly reversed and judgment is here rendered that Mr. and Mrs. Gonzales recover $1800.00 each from the defendant telephone company and with interest from date of the trial court judgment and for costs.

REVERSED AND RENDERED.


author: PALMORE, Justice.

text:
    James Howard TIMMONS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.
    Rehearing Denied Oct. 7, 1977.

      Jack Emory Farley, Public Defender, William M. Radigan, Asst. Public Defender, Commonwealth of Kentucky, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Raymond M. Larson, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

James Howard Timmons appeals from judgments entered pursuant to a verdict finding him guilty of first-degree unlawful imprisonment (KRS 509.020) and murder (KRS 507.020) and fixing his punishment at five years’ imprisonment and life imprisonment, respectively. The two charges were tried together.

The case arose out of the abduction and death of a three-year-old boy named Eddy Belt.

Timmons did not testify, and except for the abduction of the little boy the evidence against him was entirely circumstantial. Shortly after 6:00 P.M. on June 19, 1975, Timmons borrowed his brother’s girlfriend’s automobile and drove to the parking area of a municipal housing complex in Paducah, Kentucky, called Elmwood Court. Eddy Belt and Victoria Copeland, eight years of age, got in the front seat with him, and he made sexual overtures toward them. He told Victoria that she was “his girl,” took down her panties, and exposed his genitals to her. He asked Eddy to unzip his pants and get his penis out, which Eddy did. At some time before 7:00 P.M. he drove off, taking Eddy with him. He brought the automobile back to his brother’s place at about 9:15 P.M. Meanwhile, the indecent-exposure incident had been reported to the police and a search for Eddy was undertaken. Five days later, on June 24, a fisherman discovered the child’s body on the bank of the Ohio River near the water’s edge in a brushy, wooded area called the “Duck’s Nest” just outside the Paducah floodwall. He had been dead for several days, and the body was so badly decomposed that it could not be ascertained with absolute certainty whether he had been subjected to foul play. The cause of death was drowning.

A post-mortem examination disclosed a laceration over the right eye down to the bone, probably caused by a blunt force of some kind. There were three lacerations on the back and three on the right buttock. The lacerations on the buttock penetrated through the skin to the underlying muscular tissue. There was also an elongated laceration next to the anus which extended into the rectum. It could have occurred prior to death, and there is a remote possibility that it could have been caused by a man’s penis. It could also have been caused by a combination of tissual decomposition and the pressure of a tremendous internal accumulation of gas. More significantly, the child’s penis showed evidence of bleeding into the tissues, indicative of a pre-mor-tem injury, and although this could very well have resulted from an injury at an earlier time in his life, there was no evidence that he ever had sustained such an injury.

Timmons was familiar with the Duck’s Nest. In the middle of the afternoon of June 19, 1975, a witness named Crochett, who had gone there to swim, saw and spoke with him, though his identification was not absolutely positive because at that time Timmons was wearing a beard whereas at the trial he was clean-shaven. Another witness, Allen Bolte, who lived at Elmwood Court, said that between 6:30 and 7:00 P.M. on June 19, 1975, Timmons came to Bolte’s apartment looking for his girl-friend Ila Warren, also a resident of Elmwood Court, and told Bolte he had been fishing at the Duck’s Nest during the past two or three days. During this conversation Timmons asked Bolte and Bolte’s nephew to go fishing with him there, but they declined and Timmons left. Ila Warren’s nephew, Richard Dixon, a teen-age boy, testified that within a week before June 19, 1975, he and Timmons had gone to the Duck’s Nest in Ila’s automobile and that while they were there Timmons took out his penis and asked Richard to look at it, which he refused to do. Leaving the Duck’s Nest, they drove across the Tennessee River to a dump area in Livingston County, where Timmons proceeded to suggest that they engage in oral sex, telling Richard that they did all that stuff when he was in the penitentiary.

A police search for both Timmons and Eddy Belt began within minutes after they were seen leaving Elmwood Court. Tim-mons had been staying with Ila Warren but had moved out some three weeks before, after which he had been sleeping in an automobile outside an apartment occupied by his brother and Carol Evans, the owner of the ear. This was the vehicle Timmons borrowed on June 19, 1975. After returning it around 9:15 P.M. Timmons gathered up his clothes and departed on foot. His brother did not see him thereafter, and did not know his whereabouts until an F.B.I. agent apprehended and arrested him itt Illinois on September 1, 1975. Lest we convey the impression, however, that the evidence suggested no explanation for the flight and self-concealment of Timmons other than his guilt with respect to the fate of Eddy Belt, it should be noted that during all of this time he was a fugitive from an out-of-state prison and that Carol Evans, who would not let him stay in the apartment with her and his brother, was upset over his having borrowed her car while she was away at work on June 19, 1975.

A principal argument in behalf of Timmons is that the evidence was insufficient to establish the corpus delicti — to wit, that it was not enough to justify reasonable minds in concluding beyond a reasonable doubt that the child’s death resulted from a criminal act. We do not agree. A sex-degenerate whose proven purpose is to engage in lascivious activities with a small child, spirits that child away from home, and later the child is found dead in a secluded area. Perhaps, indeed, he is never found at all, but we need not consider what inferences might reasonably be drawn in that case. In any event, when it is determined that the death resulted from drowning, or from some other form of suffocation, common sense suggests a definite probability that in one way or another it was brought about by the abductor. The killing of an infant victim by a sex-fiend in order to shut his mouth happens with too great a frequency for the general public not to see it as a familiar modus operandi. It is quite enough that no inference of guilt may be drawn from a defendant’s silence. His constitutional protection in that respect does not extend to conclusions that may reasonably be drawn from evidence that in the absence of any other explanation points the finger of guilt directly at him.

We do not dispute the proposition that the proof of each essential element of a crime, including the corpus delicti, must be sufficient to justify reasonable minds in finding its existence beyond a reasonable doubt. When the evidence bearing on one particular element is circumstantial, as it was in this instance, not only is it necessary, but reasonable and customary, to resort to the evidence as a whole for an assessment of the probabilities. That which a jury may reasonably believe to have been probable is enough to support a finding of guilt under the reasonable-doubt standard. It is not necessary that the evidence exclude other possibilities. What the law requires is probability, which has been defined as more likely than not, cf. Fields v. Western Kentucky Gas Company, Ky., 478 S.W.2d 20, 22 (1972). In this specific case we think the evidence raised a very strong likelihood that Eddy Belt came to his death at the hands of James Howard Timmons, but even if we had misgivings on that score, as an appellate court we certainly cannot say that a jury could not reasonably believe so. Cf. Perry v. Commonwealth, Ky., 514 S.W.2d 202, 204 (1974); Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977).

In addition to the evidence of Tim-mons’ criminal conduct toward the children at Elmwood Court and Richard Dixon’s account of his overtures at the Duck’s Nest and then at the dump in Livingston County, the trial court permitted the Commonwealth to read the following excerpt from a handwritten notebook found in Timmons’ pocket when he was arrested:

“I just found out yesterday that kids was going to school now. I don’t no how long they have been open up again. Now wood be a good time to get some school pussy. Find a girl waiting for the school bus that is out of sight of her house. Keep her all day. Let her go about dark. That way I wood have all night to travel on to some other part of the country. Let some one know where I be so they can get me food and ice water. They say Hell I no he didn’t rape the girl for he was hid out in the woods. The girl was raped 35 miles away. He could be at 2 places at the same time.”

Immediately following the reception of each of these items of testimony the court admonished the jury not to consider it as bearing on the guilt or innocence of the defendant, but only as it might show a plan, scheme or pattern or, in the instance of the written material, “any disposition or intent of the defendant as to his lustful inclinations, his motive and any behavior pattern, any scheme or any plan that he may have or had, if it does that.”

Timmons contends that all of this evidence was inadmissible and that he was doubly prejudiced by the prosecutor’s effective use of it in his summation to the jury. Counsel concedes that when there is evidence of a sexual offense this kind of testimony is admissible for the limited purposes stated in the admonitions given to the jury, but again, as with the argument on corpus delicti, he takes the myopic view that there was no evidence that Timmons committed any sexual offense with the child, hence there was no basis for admitting other proof of his sexual proclivities. And again our reaction is the same as it is with regard to the corpus delicti. In the first place, what happened at Elmwood Court obviously demonstrated his purpose in abducting the boy, and unquestionably it was part of the res gestae. Then Timmons disappeared. Then the child was found dead, at a place Timmons was known to frequent, and to which he had expressed an intention of going just minutes before he enticed the children into the automobile. The victim’s penis showed signs of trauma at some time predating his death. There was no evidence of such an injury prior to his fatal journey with Timmons. If these facts add up to murder, as we say the jury was authorized to believe, they also add up to sexual molestation. Had there been no sexual offense, there would have been no ostensible reason for the murder.

The only witnesses introduced by the defense were Marjorie Carmon and her husband, James. Mrs. Carmon testified that at 7:30 P.M. on June 19, 1975, she was sitting in her automobile in the parking lot of a grocery store not far from Elmwood Court and saw a little blonde white boy ride up on a bicycle driven by a black boy about 14 years old. She said the older boy got a popsicle for the smaller child and they drove off on the bicycle in the general direction of Elmwood Court. The white child was dressed exactly as Eddy Belt was dressed when he left Elmwood Court and when he was later found dead. Mrs. Car-mon’s interest was aroused especially by the appearance of the smaller child, who was about the same age and size as her own grandson. Early the next morning she heard over the television that Eddy Belt had disappeared, whereupon she went to the Paducah police station and reported what she had seen at the grocery store the previous evening. She asked to see a picture of the missing boy, and when shown a photograph of Eddy she identified him as the child she had seen on the bicycle.

On the occasion described by Mrs. Car-mon she was accompanied by her husband, her grown daughter, and a 10-year-old son. The daughter lived in Defiance, Ohio, and was visiting in Paducah. Neither she nor the son testified. James Carmon, the husband, had gone into the grocery store when the boys on the bicycle arrived and when they left, so he did not see them. He said that his wife heard about Eddy Belt’s disappearance that night over television, was upset about it and went to the police the next day.

The trial of this case began on November 17,1975. The Commonwealth rested on the afternoon of November 20, 1975, following which the trial court heard and denied motions for a mistrial based on the reception of evidence which we have already discussed and for an acquittal on both the murder and kidnapping charges. On the next morning, November 21, the defense presented the testimony of the Carmons and after a noon recess rested its case. At this point counsel for Timmons moved for a dismissal of the charges against him on the ground that the police ■ had withheld the exculpatory evidence of Mrs. Carmon and the defense had not learned of it until he received a tip by telephone from an anonymous caller on the previous morning as he was preparing to leave home to attend court. During the day he had an investigator work on it, and the investigator produced Mrs. Carmon that afternoon. According to defense counsel’s sworn statement, he had not interviewed the Carmons before he put them on the witness stand, and he had not made contact with the daughter in Ohio. During the afternoon of November 20, however, the investigator had interviewed people in the vicinity of the grocery store in an unsuccessful effort to locate other witnesses who may have seen the boys on the bicycle on the evening of June 19, 1975.

The Commonwealth’s Attorney responded under oath to the effect that he had no knowledge of Mrs. Carmon until she approached his assistant during the previous afternoon and advised him of what she intended to say, whereupon the prosecutor had the city detectives bring in their files and discuss the matter with him. Their explanation was that they had made an investigation following receipt of Mrs. Car-mon’s report in June, during which they interviewed a black child who had been at the grocery store earlier in the afternoon of June 19, and had satisfied themselves that they could place no credence in Mrs. Car-mon’s report, but had neglected to bring it to the attention of the Commonwealth’s Attorney.

No one questions that under principles expressed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1966), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the withholding by the state of information which “creates a reasonable doubt that would not otherwise exist” is a denial of due process, regardless of good faith on the part of the governmental authorities responsible for the suppression. There are two important differences, however, between those cases and this one. Here the evidence of Mrs. Carmon actually was brought to light and produced by the defense. The only known witness whose testimony was not procured was Mrs. Car-mon’s daughter in Ohio. What she might have said we do not know, but it could not have been any more than corroborative of what the jury heard Mrs. Carmon say. As the 10-year-old son was not mentioned, it may be assumed that he could have been interviewed promptly and secured as a witness if he had been able to provide any evidence of value. So it is the possible corroborative testimony of the daughter that the defense claims it could have had if Mrs. Carmon’s information had been made available to it at a reasonable time in advance of the trial. This contention brings us to the second major distinction mentioned above.

“When something like this happens during a trial we think counsel for the aggrieved party must exhaust all reasonably available means to have the error rectified (including, for example, a motion that the trial be recessed until the facts can be ascertained) before he can be in a position to demand a mistrial.” Romans v. Commonwealth, Ky., 547 S.W.2d 128, 131 (1977). (It will be observed, of course, though in view of our resolution of the matter it really makes no difference now, that counsel for Timmons did not ask for a mistrial, but for a dismissal sine die of all the charges against him.) If this question were before us on a motion for new trial on the ground of newly discovered evidence, we would be compelled to hold that there was an insufficient showing of due diligence. Nothing is shown to suggest why counsel could not easily have reached Mrs. Carmon’s daughter by telephone, and if he needed more time to look for other witnesses he should have asked the trial court to give him that opportunity through an appropriate recess of the trial. Certainly we are not at all impressed that he put Mr. and Mrs. Carmon on the witness-stand cold. That was an entirely unnecessary option on his part. As it is, the trial court had no inkling of the problem until the production of evidence had ended, though counsel had been aware of it since the day before. The record leaves this court with the decided impression that counsel deliberately chose a technical stratagem at the expense of whatever help he may have been able to get from the trial court. Not that we believe it was much of a sacrifice — there is no reason to suspect that the daughter could have added anything to what Mrs. Carmon said, or that her corroboration might have conduced to create “a reasonable doubt that would not otherwise exist.” Cf. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). The long and short of it is that in our opinion there was no denial of due process.

The indictment under which Tim-mons was found guilty of first-degree unlawful imprisonment (KRS 509.020) charged him with the more serious felony of kidnapping (KRS 509.040). KRS 509.020 defines first-degree unlawful imprisonment as knowingly and unlawfully restraining a person under circumstances that expose him to a risk of serious personal injury. KRS 509.050, an exemption statute, provides that one may not be convicted of kidnapping or unlawful imprisonment if his criminal purpose was to commit an offense defined outside Chapter 509 “and his interference with the victim’s liberty [occurred] immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.” Assaults (KRS Ch. 508), homicide (KRS Ch. 507), and sexual offenses (KRS Ch. 510) all being offenses defined outside Chapter 509, the exemption would apply in this case if (1) in detaining Eddy Belt it was the intention of Timmons to assault, kill or sexually molest him and (2) the detention occurred “immediately with and incidental to” the commission of one or more of those offenses and did not exceed “that which is ordinarily incident to the commission of such an offense.” Timmons contends that the exemption does apply and that the jury should not have been given instructions authorizing his conviction of an unlawful imprisonment offense.

We have had more than a little difficulty, and some difference of opinion, in defining the exact boundaries of KRS 509.050. See, for example, Calloway v. Commonwealth, Ky., 550 S.W.2d 501 (1977). In retrospect, we think it might have been well for the drafters simply to omit the “unless” clause, because it is hard to see how a restraint could be “immediately with and incidental to” the commission of another offense and at the same time exceed “that which is ordinarily incident” to the commission of such other offense. The consensus view of the court is to resolve the ambiguity in favor of the “immediately with and incidental to” phraseology, which means that the statute will be construed strictly and restrictively unless and until it be amended to the contrary. Therefore, if the victim of a crime is going to be restrained of his liberty in order to facilitate its commission, the restraint will have to be close in distance and brief in time in order for the exemption to apply. If the victim is restrained and transported any substantial distance to or from the place at which the crime is committed or to be committed, the offender will be guilty of an unlawful imprisonment offense as well. Under that criterion the exemption statute is not applicable to this case.

The remaining argument pertains to the content of the closing argument by the Commonwealth’s Attorney. The legitimate scope of an argument to the jury is affected to some extent by the nature of the evidence. Outrageous conduct warrants stronger words than might otherwise be justified. We do not think that the prosecutor’s argument exceeded the bounds of propriety, nor do we think that it could have added much fuel to the fire anyway.

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    Joseph Wayne BOWERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.
    Rehearing Denied Oct. 7, 1977.
    Robert Vic Bowers, Jr., Sage, Carter & Bowers, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Joseph Wayne Bowers appeals from a judgment sentencing him to a 20-year term of imprisonment pursuant to a jury verdict finding him guilty of murder. KRS 507.-020(l)(a).

Bowers asserts numerous errors in support of his contention that he is entitled to a reversal of the judgment. His claims of error will be discussed in the sequence in which they are presented. However, this court deems it appropriate to summarize the pertinent facts relevant to a proper disposition of the issues.

The evidence reveals that Bowers and Williams were boon companions and fellow workmen. It is noted also that they were drinking partners. They commenced the celebration of New Year’s Eve, 1975, at 4:00 P.M. at the American Legion Hall. They remained there some two hours. During that time they consumed several drinks of alcoholic beverages. From 5:45 P.M. until 6:00 P.M. they engaged in an argument. According to the bartender, Williams stated: “Joe, I wasn’t the one that done it,” or “I didn’t do that.” Joe said: “Larry, you are the only one that could have done it.” Shortly after 6:00 P.M. they left the American Legion Hall.

Bowers and Williams next appeared at the house of a mutual friend at 7:15 or 7:30 P.M. Their friend was not at home. Other members of the family and a guest were present. Bowers and Williams remained at the friend’s house approximately 30 minutes. They departed at approximately 7:45 P.M.

Sometime between 7:45 and 8:30 P.M. the New Year’s Eve celebration ended abruptly. Some travelers observed the body of a man lying face down on Highway 175. They went to a house nearby and called the sheriff. He received the call at 8:30 P.M. A witness testified that at approximately 8:00 P.M. she saw the lights of an automobile at the place where Williams’ body was found. The automobile remained there from 5 to 7 minutes.

The sheriff, a state detective and other officers arrived on the scene shortly after receiving the call. They found Williams lying face down beside the highway. He had been shot on the left side of his head above his left ear. His body was warm, but they found no vital signs. In the meantime, Bowers returned to his friend’s house around 9:00 P.M. He was asked the whereabouts of Williams. Bowers stated that he took Williams to his truck which was parked in Greenville. He testified that some stranger was waiting for Williams. After waiting “about a minute” Bowers left and returned to the friend’s home.

Because Williams was last seen in the company of Bowers forty-five minutes before his death was reported, the authorities attempted to locate Bowers. At 3:25 A.M. Bowers came to the courthouse where an investigation of Williams’ death was in progress. He was interrogated by the sheriff, and a state detective. Bowers was told three times by the detective that he didn’t have to give consent to search his car. These statements were made in the presence of the sheriff, Commonwealth’s Attorney and others. The officers indicated that a search warrant could be obtained, but that it would take time. Bowers asserted that he had nothing to hide. The uncontra-dicted evidence of the officers was that Bowers consented to the search of his automobile.

On New Year’s Day, 1976, at daybreak, the. detective and sheriff searched Bowers’ automobile. They found blood and some human tissue on the front seat on the passenger’s side of the automobile. They also found a quantity of blood on the headrest of the seat. Williams’ personalized checkbook was found on the floor near the right door of the vehicle.

A laboratory technician testified that the blood and tissue found on the car seat and the headrest was human blood. He described the blood as group “O” type. On cross-examination, he testified that he conducted an examination of a liquid tube of blood that was taken from Williams’ body. For reasons incomprehensible to this court, the technician was not asked by the prosecutor or defense counsel the type of Williams’ blood.

Bowers’ first claim of error is that the trial court should have sustained his motion to suppress the evidence found in his automobile. He argues that the search was illegal, and violative of his constitutional rights against unlawful search and seizure. Bowers asserts that the conversation which elicited his consent was subtly coercive. There is not a shred of evidence to support Bowers’ contention. On the contrary, the evidence presents a painstaking effort by the authorities to fully inform Bowers of his rights and his options. There was no overt act or threat against Bowers, proved or claimed. There were no promises made and no indication of any subtle forms of coercion that might flaw his judgment. Bowers was not under arrest until after the search was conducted. The officers who conducted the investigation all testified that Bowers consented to the search and continued to assert he had “nothing to hide.”

The Supreme Court of the United States held that a consent search is a constitutionally permissible and wholly legitimate aspect of effective police activity.

“Nor can it even be said that a search, as opposed to an eventual trial is somehow ‘unfair’ if a person consents to a search. While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person’s voluntarily allowing a search.” (Emphasis added). Schneckloth v. Bustamonte, 412 U.S. 218, 243, 93 S.Ct. 2041, 2056, 36 L.Ed.2d 854 (1973).

It is true that Bowers had consumed alcoholic beverages prior to Williams’ death. The officers knew that. However, the evidence reveals that Bowers was not intoxicated. He drove his automobile to the courthouse. There is no evidence to indicate that Bowers was sufficiently under the influence of alcohol so as to impair his mental state to the extent that he was incapable of giving consent to the search of his automobile. Hence, the trial court did not err in admitting the evidence obtained as a result of the search.

Bowers’ second contention of error is that the Commonwealth’s Attorney misrepresented the testimony of an expert witness in his closing argument to the jury. The statement upon which the claim was based is:

“So we get down to the real heart of this case. The technician from Frankfort told you that this was type ‘O’ blood removed from that seat. He also told you that the vial of blood taken from Larry’s body at the funeral home up there with all this other stuff was type ‘O’ blood. That was Larry Williams’ blood, Joe.”

This court has recognized the impropriety of an attorney’s argument of matters outside the record. It is true that the Commonwealth’s Attorney failed to ask the technician the type of blood contained in the vial taken from Williams’ body. However, counsel for Bowers failed to object to the argument until after the case was submitted to the jury and they were proceeding to the jury room. An objection, to be timely, must be promptly interposed. RCr 9.22. The objection was untimely, and is not preserved for appellate review. In view of the weight of the evidence, plus the fact that the jury imposed the minimum sentence, error, if any, was non-prejudicial. Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974).

Bowers next complains that the trial court should have submitted to the jury his tendered instructions on lesser included offenses. Certainly the fair and efficient administration of justice requires that where a reasonable inference can be gleaned from the evidence that the defendant in a murder case is guilty of a lesser crime, then proper instructions should be submitted to the jury on such lesser offenses. Moore v. Commonwealth, Ky., 489 S.W.2d 516 (1972). However, where the totality of the evidence and circumstances such as presented in this case establishes an intentional murder or nothing the court is not required to instruct on lesser offenses because there is nothing upon which to base them. Elmore v. Commonwealth, Ky., 520 S.W.2d 328 (1975). Bowers was the last person seen with Williams while he was still alive. Bowers and Williams left a friend’s house at 7:45 P.M. on New Year’s Eve. A witness who lives in the house nearest to where the body was found observed an automobile with its lights on stopped on the highway. That was about 8:00 P.M. The automobile remained there anywhere from five to seven minutes. There was testimony that within a brief span of time from the witness’ observation of the automobile stopped on 175, the travelers who found the body of Williams notified the sheriff. He testified he received the call at 8:30 P.M.

The physical evidence against Bowers is overwhelming. The officers discovered Williams’ checkbook between the seat and the passenger side door. A clump of human dermal tissue about the size of a “pencil eraser” was also found on that seat. There is also the unimpeached testimony of the existence of human blood on the seat and the passenger side headrest of Bowers’ automobile. Finally, there is the nature of the wound which caused Williams’ death. The shot was at close range. The bullet entered just over the left ear and passed through the brain until it stopped below the surface of the right ear. By the nature of the wound it is obvious that Williams was shot without warning. There was no evidence that a struggle had taken place. Bowers did not testify in his behalf.

This court finds no conflicting circumstantial evidence. All inferences indicate that Bowers was not entitled to instructions on lesser included offenses. Counsel for Bowers argues that Williams was Bowers’ true and trusted friend. There was testimony that Bowers’ motive for this brutal slaying was jealousy over a wife’s suspected infidelity.

A mutual friend of Bowers and Williams told of a trip they made to Hopkinsville, Kentucky. This was some four or five weeks previous to Williams’ death. Upon their return to Greenville, the friend was privy to an argument between Bowers and Williams. He testified: “They were talking and Larry slid upon the back seat and told Joe, says, I didn’t do it. I don’t give a damn what that bitch said,” and Joe says, “I know damn well you did.” There is an inference that some deep-seated prejudice existed between Bowers and Williams. A feeling of hostility was activated, particularly when they were drinking. Good friends sometimes disagree. This is often the case when they seek courage by imbibing alcoholic beverages. Inhibitions are left behind, and the truth bursts forth as blossoms after a spring rain.

The first recorded argument that resulted in homicide was between brothers, not friends. Cain was so infuriated, and his hostility toward his brother Abel was such that he murdered him. If Cain had been tried and convicted according to present-day standards, and had prosecuted an appeal he probably would have contended that he was entitled to a directed verdict. He might also have contended that all the elements of the crime had not been proven. Perchance, he would have insisted that he was entitled to instructions on lesser degrees of the crime. However, Cain’s punishment was swift and certain. The Creator pronounced a curse upon him, “And Cain went out from the presence of the Lord, and dwelt in the land of Nod, on the east of Eden.”

Finally, Bowers argues that he was entitled to a directed verdict. This court is not persuaded by that argument. A motion for a directed verdict challenges the sufficiency of the evidence. The criterion of this court is that:

“ . . .If the totality of the evidence is such that the judge can conclude that reasonable minds might fairly find guilt beyond a reasonable doubt then the evidence is sufficient, albeit circumstantial.” Carmen v. Commonwealth, Ky., 490 S.W.2d 744 (1973).

This court is of the opinion that there was an abundance of competent, probative evidence sufficient to sustain the conviction. The court is unwilling to substitute its judgment for that of a properly instructed jury who heard all of the evidence and the proceedings of the trial.

The judgment is affirmed.

All concur.

      . The Bible, Genesis, Ch. 4.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. H. Randolph KRAMER, Respondent.
    Supreme Court of Kentucky.
    June 10, 1977.
    Rehearing Denied Oct. 7, 1977.
    Leslie G. Whitmer, Director, John T. Damron, Asst. Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    Richard T. Ford, Owensboro, for appellee.
   PER CURIAM.

This is a disciplinary proceeding against H. Randolph Kramer, a member of the bar. A criminal information filed in United States District Court for the Western District of Kentucky charged Kramer with failure to file federal income tax returns for income received by him during the years 1970, 1971, and 1972.

Kramer was convicted on his plea of nolo contendere on three counts of failure to file income tax returns in violation of Section 7203, Internal Revenue Code and Title 26, United States Code, Section 7203. The offense of failing to file an income tax return is a misdemeanor. A fine of $7,500 was imposed on Kramer, and he was sentenced to one year on each count to be served concurrently and further ordered to serve the first sixty days in jail with probation directed for an additional two years. He served two weeks in jail, the balance being remitted.

The Kentucky Bar Association initiated disciplinary proceedings against Kramer charging unprofessional and unethical conduct calculated to bring the bench and bar in disrepute, RAP 3.130.

The facts as outlined above were stipulated before the trial committee, and aside from copies of the judgment and order sentencing, no further proof was introduced by the Kentucky Bar Association. The trial committee heard testimony by Kramer, in his own behalf, and that of witnesses introduced for him. This testimony is essentially as to Kramer’s good character and good reputation as a practicing lawyer and was introduced in mitigation.

The trial committee found Kramer guilty and recommended suspension from the practice of law for a period of two months. The board of governors of the Kentucky Bar Association considered the record and the report of the trial committee, found Kramer guilty as charged and recommended a penalty of six months’ suspension from the practice of law.

In his testimony, Kramer stated, “ . the mitigating circumstances don’t seem to go very far,” followed by a recitation of very substantial income over the years and previous payments of income tax in the five-figure range. Then he said, “ . this may not be an excuse but it was my feeling at the time, I was just so sick and disgusted with Richard Nixon and the administration that I had a mental block about even filling the damn form out and I have paid dear for my feelings.”

Kramer asserts that the finding of guilty is not supported by evidence, is denial of due process of law, is judicial enlargement constituting an ex post facto law, and is denial of equal protection of the law.

All the assertions made by Kramer attack our opinion in Kentucky Bar Association v. Vincent, Ky., 537 S.W.2d 171 (1976).

We have examined the record and have re-examined Vincent. We are of the opinion that Vincent is dispositive of the proceeding and are not persuaded that we should withdraw from Vincent in any respect.

Proof of the conviction introduced by the Kentucky Bar Association is in itself sufficient to make out a case. The Bar Association is not required to introduce proof of the manner in which the conviction brought the bench and bar into disrepute.

We do not consider RAP 3.130 to be so vague as to be constitutionally infirm, nor do we consider that Vincent created an ex post facto law by judicial enlargement.

We do not comprehend Kramer’s assertion that he was denied equal protection of the law. If to single out the lawyer who commits the offense from all others, as argued by Kramer, means all other occupations and professions, we can only say that our responsibility and concern is limited to lawyers by the provisions of Section 116 of the Kentucky Constitution and our rules applicable to disciplinary matters.

We are of the opinion that a substantial law practice, a fine reputation as a lawyer, and disenchantment with a national administration are not extenuating circumstances so as to distinguish this proceeding from Vincent and Kentucky Bar Association v. Trimble, Ky., 540 S.W.2d 599 (1976).

We are of the further opinion that the conduct of Kramer constituted unethical and unprofessional conduct.

The recommendations of the board of governors is accepted. Kramer is suspended from the practice of law for a period of six months, and he is required to pay the cost of this proceeding.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, STERNBERG and STEPHENSON, JJ., sitting.

All concur.

PALMORE, J., not sitting.


text:
    John L. SNYDER et al., Individually, etc., Appellants, v. CITY OF OWENSBORO, Kentucky, et al., Appellees.
    Supreme Court of Kentucky.
    June 10, 1977.
    Rehearing Denied Oct. 7, 1977.

      Charles S. Wible, Lovett, Wible & Lamar, Owensboro, for appellants.
    Hugh D. Moore, Moore & Moore, Owens-boro, Earl Cornett, Gen. Counsel, Dept, of Labor, Frankfort, E. H. Tingle, Asst. Counsel, Dept, of Labor, Louisville, for appellees.
   JONES, Justice.

This litigation involves a dispute between the firemen of Owensboro and the City of Owensboro and its officers.

The firemen seek to reverse a judgment dismissing their action challenging the validity of two ordinances of the City of Ow-ensboro adopted June 14, 1974. The ordinances established hourly wage rates for members of the City’s Fire Department.

The Kentucky Department of Labor by its acting commissioner moved the court for leave to intervene as a plaintiff. The motion for leave to intervene was sustained without objection. No appeal from the trial court’s judgment holding the ordinances valid was prosecuted by the Kentucky Department of Labor.

As grounds for reversal the firemen contend: (1) the trial court erred in holding ordinances Nos. 91-74 and 94-74 valid because they are in conflict with and violate KRS 84.010, KRS 337.285, KRS 95.500(3), and KRS 95.450; (2) the trial court erred in holding the ordinances valid because they unilaterally reduced the hourly rate of the firemen in order to avoid paying additional compensation for overtime work as required by KRS 337.285; (3) that the trial court erred in holding the ordinances valid because they were enacted by the City Commission of Owensboro in order to circumvent and evade superior laws, and that the ordinances are void as having been enacted in bad faith.

The ordinances in question established the hourly rates of pay for the firemen at such level so that after July 1, 1974, the effective date of KRS 337.285, the firemen would receive as total compensation for regular and overtime work, what they had previously been paid as a salary plus an 8% across-the-board increase granted the city’s employees. It is obvious that the Board of Commissioners of the City of Owensboro did not “hide their light behind a bushel” in adopting the ordinances.

The pertinent portion of Ordinance 91-74, later supplemented by 94-74, which established the hourly wages for firemen, indicates no devious design to do the firemen injustice. The portion of the ordinance that indicates as much reads as follows:

WHEREAS, there is a possibility that Legislation of the 1974 General Assembly known as House Bill 477 has application to some nonsupervisory members of the City’s Fire Department, it not being altogether clear that members of the Fire Department are exempted as professional employees, and,
WHEREAS, House Bill 477 provides for pay at 1⅛ times the regular rate for all hours in excess of 40 worked by a covered employee in one week, and
WHEREAS, by virtue of KRS 95.500, members of the Fire Department are required to be given work schedules whereby they are on duty for twenty-four consecutive hours and off duty for the following 48 hours, and
WHEREAS, it is deemed advisable to compute the hourly wages of firemen so that they will be compensated in full compliance with the provisions of House Bill 477, and
WHEREAS, Section 6-33 of the Code of Ordinances provides for longevity pay for each employee of the City including firemen who have been in the employ of the City for in excess of four years the amount of such longevity pay being broken into five categories depending upon length of employment, and
WHEREAS, in order to take account of varying longevity pay for each rank within the Fire Department, five hourly rates for each rank must be established,
SECTION 1. The regular hourly wage rate, including base pay and longevity pay, for members of the Fire Department is set and established as herein specified. The rate specified under “(a)” for a rank is the rate for those member of the department holding such rank who have been in the employment of the city for less than 4 years, the rate specified under “(b)” is the hourly rate for those holding the specified rank who have been in the employ of the city for from 4 to 8 years, “(c)” is for those employed from 8 to 12 years, “(d)” is for those employed from 12 to 16 years, “(e)” is for those employed from 16 to 20 years and “(f)” is for those employed for 20 years or over.” (Emphasis added).

Thereafter the rates of pay for the firemen are set out in detail. Ordinance 94-74 did nothing more than implement Ordinance 91-74 by establishing regular hourly wage rates for recruits.

Prior to the enactment of the ordinances an hourly wage rate for a fireman’s work had not been established and firemen were compensated on a straight salary basis. The lowest hourly wage set by the ordinances for any fireman is much higher than the minimum hourly rate specified in KRS 337.275(1).

The firemen concede that the Board of Commissioners of the city are vested with authority to establish hourly wage rates for firemen. However, they contend that KRS 337.285 required the Board of Commissioners to determine a regular hourly wage rate for each fireman on a weekly basis by dividing the number of hours a fireman works in a particular week into his pay for that week. The firemen contend that in order to determine the total pay a fireman is due for a particular week would require the city to multiply the hourly rate by dividing the hours worked in a week into the overall pay for that week, and then add to that sum the figure obtained by multiplying one and one-half times the hourly rate by the number of hours worked in a week in excess of 40. It is argued by the firemen that the hourly wage rate established by the ordinances did not grant the firemen an increase in overall compensation after the overtime provisions of KRS 337-285 became effective. The firemen insist the action by the Board of Commissioners resulted in a fictitious rate in violation of the provisions of KRS 337.285. In essence the firemen contend that the trial court, by retroactive application of KRS 337.285 should have voided the ordinances because the wage rates it established were not in conformity with the formula proposed by the firemen to comply with the provisions of KRS 337.285.

In support of their argument the firemen cite as authority numerous federal cases. The court has examined the cases cited in support of their position. None of them bolster the argument the firemen advance in this case.

The court is of the opinion that the formula advanced by the firemen is correct. However, the ordinances fixing the hourly pay scale for the firemen were adopted on June 14, 1974. The effective date of KRS 337.285 was July 1, 1974. The firemens’ argument that Ordinances 91-74 and 94-74 are invalid for failure to comply with the provisions of KRS 337.285 is futile. How can an ordinance or ordinances be invalid prior to the effective date of the statute? In order for the trial court to have declared the ordinances void would require a non-permissible retroactive application of KRS 337.285. This court has held in a number of cases that:

“As a general rule statutes operate prospectively rather than retrospectively, and they will not be given a retroactive effect even where the Legislature has power to enact them, unless such an intention clearly and unmistakably appears from the statute itself.” See Justice v. Walnut Hall Farm, et al., Ky., 475 S.W.2d 905 (1971).

This court has considered the other contentions of error made by the firemen and is of the opinion they have no merit.

The judgment is affirmed.

All concur.