author: ROBINSON, Chief Justice.

text:
    LUBBOCK INDEPENDENT SCHOOL DISTRICT, Appellant, v. Dora Lee BRADLEY, Appellee.
    No. 8950.
    Court of Civil Appeals of Texas, Amarillo.
    March 19, 1979.
    Rehearing Denied April 9, 1979.

      Crenshaw, Dupree & Milam (Cecil C. Kuhne), Lubbock, for appellant.
    . Brown & Brown (Phillip S. Brown), Lubbock, for appellee.
   ROBINSON, Chief Justice.

Dora Lee Bradley sought workers’ compensation for an alleged back injury in September 1976, resulting from constant and repeated bending, lifting, and carrying of heavy objects. The trial court rendered judgment for Mrs. Bradley on jury findings of total and permanent incapacity. Defendant, Lubbock Independent School District, appeals. Affirmed.

Plaintiff was employed by Lubbock Independent School District during 1975, working at Posey Elementary School as a cafeteria helper. Around November 20, 1975, while in the course of employment, she slipped, fell and injured her back. After receiving medical treatment and compensation benefits, she returned to work on January 3, 1976, resuming her regular duties, and worked until school was out for the summer. When school resumed on August 17, 1976, she returned to work at a different school, Martin Elementary, doing the same type of work. In early September her back began hurting. She continued working until the pain was so severe that she was unable to work. She quit her job on September 29, 1976. She has not been employed since that time.

I.

Defendant first asserts that the trial court erred in refusing to submit requested special issues inquiring whether plaintiff’s earlier injury of November 20, 1975, contributed to the incapacity found by the jury and the percentage of such contribution.

The statute in effect from 1971 to 1977 and at the time of Mrs. Bradley’s 1976 injury did not allow an insurer the defense of percentage contribution of prior compensation injuries to a present incapacity. That statute made the insurer liable for all compensation provided by the Act. 1971 Tex.Laws, ch. 316, § 1, at 1257. Texas Employers’ Insurance Association v. Haunschild, 527 S.W.2d 270 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

The pre-1971 statute (enacted in 1947) provided that the insurer was liable for compensation for a subsequent injury only to the extent that the subsequent injury would have entitled the employee to compensation had there been no previous injury. This statute provided for a “Second Injury Fund” from which an employee who suffered a subsequent injury could be compensated for the combined incapacities resulting from prior and subsequent injuries. 1947 Tex.Laws., ch. 349, § 1, at 690-91. See Texas Employers’ Insurance Association v. Haunschild, supra, for a history of the Second Injury Fund. The Supreme Court construed the 1947 statute in Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711 (1961) and limited the liability of the Second Injury Fund to situations involving a combination of specific injuries resulting in total and permanent incapacity. It held that neither combinations of general injuries nor injuries resulting in partial disability were compensable from the Second Injury Fund. Thus, the 1971 statute enlarged the compensation available to an injured employee under the 1947 statute.

In 1977 the statute was again amended. The amendment substantially re-enacted the 1947 provisions and again limited the worker’s recovery from the insurer to the compensation that he would have been entitled to for the subsequent injury if there had been no previous injury. Tex.Rev.Civ.Stat.Ann. art. 8306, § 12c (Vernon Supp. 1978-1979).

Mrs. Bradley’s alleged injury occurred in September 1976. The case was tried after the effective date of the 1977 amendment. If the 1977 amendment is applicable to her claim, then the insurer was entitled to the requested special issues asking whether and in what percentage her earlier injury contributed to the incapacity found by the jury. Thus, the question for our determination is whether the 1977 amendment to section 12c of article 8306 is applicable to a claim arising before, but tried after, the effective date of the amendment. We conclude that it is not. .

It is the law of this State, and the law generally, that, in the absence of any special indication or reason, a statute will not be applied retroactively, even when there is no constitutional impediment against it. State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707, 708 (1943). Defendant contends that this general rule does not apply to a procedural or remedial statute. See Bristow v. Nesbitt, 280 S.W.2d 957 (Tex.Civ.App.—Eastland 1955, no writ).

Substantive law includes those rules and principles which fix and declare the primary rights of individuals as respects their person and their property, and generally the remedy available in the case of the invasion of those rights. Procedure is the machinery for carrying on a suit, including pleading, process, evidence and practice. Exxon Corp. v. Brecheen, 519 S.W.2d 170, 183 (Tex.Civ.App.—Houston [1st Dist.]), rev’d on other grounds, 526 S.W.2d 519 (Tex.1975); Brooks v. Texas Employers’ Insurance Association, 358 S.W.2d 412, 414-15 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.). A remedial statute has been defined as a law introducing a new regulation for the advancement of the public welfare or conducive to the public good, or one which supplies defects, and abridges superfluities in the former law, or one enacted to afford a remedy. Pratt v. Story, 530 S.W.2d 325, 328 (Tex.Civ.App.—Tyler 1975, no writ) (citing authorities). The 1977 amendment to section 12c of article 8306 reinstituted a defense for the insurer. We are of the opinion that it effected a substantive change in the law and should not be applied retroactively.

II.

Defendant next contends there is no evidence and insufficient evidence to support jury findings that plaintiff received an injury in September 1976; that such injury was a producing cause of total incapacity; and that the duration of total incapacity was permanent.

The evidence showed that Mrs. Bradley’s work in the cafeteria involved bending, and the lifting and carrying of heavy items. She was required to lift and open canned goods, pour the contents into pans, which held three to four gallons of food, and carry the pans to the refrigerator or to the steam table. Dr. Ray Santos, an orthopedic surgeon and the treating physician, testified that repeated incidents of lifting, bending, and stooping aggravate or accelerate a back condition. Mrs. Bradley testified that she quit work in September 1976, -because she was no longer able to work because of back pain. After quitting work she received therapy treatments and pain and muscle spasm pills. Dr. Santos stated that she would continue to have difficulty with her back and that she should not engage in any activity which would put her back under stress. Mrs. Bradley testified that she has continued to have trouble with her back since September 1976, and is unable to work. The evidence shows that she has an eleventh grade education and has done only manual labor all her life.

We conclude that there is some evidence to support the submission of the special issues to the jury. After consideration of all of the evidence we conclude that the evidence is sufficient to support the jury answers.

III.

In order to recover compensation under the Workers’ Compensation Act the employee must establish “average weekly wages” under one of the three statutory methods. Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (Vernon 1967). If an employee establishes that he had not worked in the employment in which he was working at the time of injury for at least 210 days of the year immediately preceding the injury he cannot recover under the first method. The employee must then establish the average daily wage or salary which an employee of the same class, working at least 210 days of such immediately preceding year, in the same or similar employment, in the same or a neighboring place, shall have earned during the days that he actually worked in such year.

Defendant contends that there is no evidence and insufficient evidence to support the jury findings that another employee of the same class as plaintiff worked at least 210 days in the year preceding her injury in the same or similar employment and that the average weekly wage of such other employee of the same class was $115.48.

Mrs. Bradley worked five hours a day, five days a week during the school year. She had not worked 210 days in the year preceding her injury. The evidence offered at trial as the average daily wage of another employee of the same class was the earnings of a cafeteria worker from Furr’s Cafeteria who worked eight hours a day, six days a week throughout the year.

The law seeks to provide compensation not merely for loss of earnings, but for loss of earning capacity, at a wage rate based on the employee’s capacity to earn when employed on a full-time basis Texas Employers Ins. Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399, 401 (1939); Maryland Casualty Co. v. Stevens, 55 S.W.2d 149, 153 (Tex.Civ.App.—Eastland 1932, writ ref’d); Maryland Casualty Co. v. Drummond, 114 S.W.2d 356, 360 (Tex.Civ.App.—Beaumont 1938, writ ref’d); Federal Underwriters Exchange v. Poison, 148 S.W.2d 956, 961 (Tex.Civ.App.—Eastland 1941, writ dism’d judgmt. cor.); Texas Employers’ Ins. Ass’n v. Allgood, 252 S.W.2d 589, 591 (Tex.Civ.App.—Fort Worth 1952, writ ref’d n. r. e.). The fact the injured employee is a part-time employee does not remove her from the class of workers in the same type of employment who are full-time workers. “Class” refers to the type of employment, not the manner of wage computation. Texas Employers’ Insurance Association v. McMahon, 509 S.W.2d 665, 668 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.). The loss of earning capacity would not be shown by the wages received by an employee in part-time employment in which a lower wage was paid because of that fact. Maryland Casualty Co. v. Stevens, supra, at 153. We conclude that there is evidence to support the submission of the issues and after considering all of the evidence we conclude that it is sufficient to support the jury answers.

IV.

The trial court gave the following definitions, among others, in its charge:

“INJURY” includes damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and such diseases or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm.
“INJURY IN THE COURSE OF EMPLOYMENT” means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.

Defendant contends that the trial court erred by failing to give its requested definition of “Injury” and “Personal injury” as follows:

“The terms ‘Injury’ and ‘Personal Injury’ shall also be construed to mean and include ‘Occupational Diseases’, as hereinafter defined. Whenever the term ‘Occupational Disease’ is used in the Workmen’s Compensation Laws of this State, such term shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom. An ‘Occupational Disease’ shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident to an ‘Occupational Disease’ or ‘Injury’ as herein defined.”

The record does not show that defendant requested an instruction on sole cause.

Defendant maintains that it was entitled to the requested definition because medical testimony raised a question concerning whether Mrs. Bradley’s condition was. an ordinary disease of life. Plaintiff pleaded and adduced evidence that her injury was caused by repetitious physical traumatic activities which took place in the course of her employment, that is, by constant and repeated bending, lifting, and carrying of heavy items. In answer to a special issue the jury specifically found that her injury was sustained in the course of her employment.

Tex.R.Civ.P. 277 provides that in submitting a case the court shall submit such explanatory instructions and definitions as shall be proper to enable a jury to reach a verdict. We are of the opinion that the court’s charge adequately submitted the question of whether Mrs. Bradley suffered an injury in the course of her employment. See Standard Fire Insurance Co. v. Ratcliff, 537 S.W.2d 355 (Tex.Civ.App.—Waco 1976, no writ). See also, 2 State Bar of Texas, Texas Pattern Jury Charges 20.01 (Supp.1976).

Each of defendant’s points of error is overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SHANNON, Justice.

license: Public Domain

text:
    Annie Byrd GOETZ, Appellant, v. LUTHERAN SOCIAL SERVICE OF TEXAS, INC., Appellee.
    No. 12903.
    Court of Civil Appeals of Texas, Austin.
    March 21, 1979.

      Michael J. Schless, Friday & Kazen, P. C., Austin, for appellant.
    Michael L. Brandes, Brandes, Rubinett & Kiester, Austin, for appellee.
   SHANNON, Justice.

This is an appeal from a summary judgment entered by the district court of Travis County in an adoption case. Appellant is Annie Byrd Goetz and appellee is Lutheran Social Service of Texas, Inc.

In December, 1977, by judgment of the district court of Travis County, the parent-child relationships between Mary Frances Smith and John Michael Smith and their children, May Judith Smith, age four, and Tobias Brandon Smith, age three, were terminated. That judgment also terminated the parent-child relationship, if any, between Marc Ivan Laye and the children. Appellee was appointed managing conservator of the children with the power to consent to the adoption of the children.

In February, 1978, appellant filed a petition for adoption of the children in the same court and under the same cause number as the suit for termination. In its answer to the petition for adoption, appellee expressly denied consent for the adoption of the children. Thereafter, appellee filed a motion for summary judgment predicated upon its refusal to consent to the adoption. The order granting motion for summary judgment shows that appellant requested the court to waive the requirement of consent upon the basis that appellee withheld consent without good cause.

The district court in the summary judgment order recognized that “. . . issues of fact exist concerning the question of whether [appellee] refuses consent without good cause.” The district court concluded, however, “. . . as a matter of law pursuant to Lutheran Social Services [sic], Inc. v. Farris, 483 S.W.2d 693 (Civ.App.—Austin, 1972, writ ref’d n. r. e.), that regardless of whether fact issues exist concerning [appellee’s] refusal of consent, [appellant] is not entitled to maintain her suit for adoption in the face of [appellee’s] refusal of consent.”

Appellant’s second point of error is that “[t]he trial court erred in granting Appel-lee’s Motion for Summary Judgment by ruling that Appellant could not maintain her suit for adoption in the face of Appellee’s refusal to consent as managing conservator.”

Texas Family Code Ann. § 16.05 (1975) governs the disposition of this appeal. Section 16.05 provides in part as follows:

“(a) If a managing conservator has been appointed, his consent to the adoption must be given in writing and filed in the record unless he is a petitioner, in which case his consent need not be given.
“(d) The court may waive the requirement of consent to the adoption by the managing conservator if it finds that the consent is being refused, or has been revoked, without good cause.”

Prior to the 1974 enactment of Title Two of the Texas Family Code, the matter of consent in adoption cases was governed by Tex.Rev.Civ.Stat.Ann. art. 46a. This Court in Lutheran Social Service, Inc. v. Farris, supra, construed art. 46a to require agency consent for adoption.

In Farris this Court wrote:

“[2] While article 46a is silent as to whether the adoption agency’s consent to adoption is required in substitution for parental consent, the effect of the statute '. . . obviously is that after the parental consent for placement is given the child-placing agency stands in loco paren-tis to the child and is clothed with the authority to give or withhold the consent necessary to the entry of a judgment for adoption.’ Catholic Charities of Diocese of Galveston v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960), see 4 Baylor L.Rev. 117, 119 (1951), 23 Baylor L.Rev. 454 (1971), 49 T.L.R. 1128 (1971), but see the majority opinion in Lutheran Social Service, Inc. v. Meyers, 460 S.W.2d 887, 890 (Tex.1970).
“[3] The preservation of the integrity of the agency adoption process should be paramount in the construction of article 46a. Apropos that subject the Supreme Court has expressed concern for the protection of the agency adoption process in other cases. See Catholic Charities of Diocese of Galveston v. Harper, supra, Home of Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965), see also, 49 T.L.R. 1128 (1971).
“[4] Appellees’ position is that the courts are free to depart from the statutory scheme when prompted to do so by unusual circumstances, as in this case, and when convinced that to do so would serve the best interests of the child. We cannot agree. Adoption was unknown at common law and exists solely by reason of statute. Eckford v. Knox, 67 Tex. 200, 2 S.W. 372 (1886); Grant v. Marshall, 154 Tex. 531, 280 S.W.2d 559 (Tex.1955), 49 T.L.R. 1128 (1971), 15 Sw.L.J. 445 (1961), 5 S.Tex.L.J. 378 (1960). Since this is so, adoption proceedings do not depend upon equitable principles, and courts must be governed by the statute which is the sole authority for adoption.” (Emphasis added)

Subsequent to Farris the legislature enacted § 16.05 which changed the statutory scheme for adoptions. Section 16.05(a) requires the managing conservator’s consent to adoption be given in writing and filed of record. Nevertheless, § 16.05(d) provides that if the court finds that consent was refused, or was revoked, without good cause, the court may waive the requirement of consent by the managing conservator to the adoption.

Section 16.05(d), unlike art. 46a construed in Farris, provides the petitioner in an adoption suit an opportunity to seek judicial determination whether the managing conservator’s consent is being withheld or revoked without good cause. The Second point of error is sustained.

In point of error one appellant attempts to attack the December, 1977, judgment ordering termination of the parent-child relationship between the children and Mary Frances Smith, John Michael Smith, and Marc Ivan Laye. By her point appellant, the children’s maternal great-aunt, claims that the district court erred in not granting a new trial in that appellant was a person who should have been served in the termination suit pursuant to Tex.Family Code Ann. § 11.09 (Supp.1978). This Court has no jurisdiction to consider the point of error because the judgment of termination was final long before the transcript was filed in this Court.

Appellant’s amended motion for new trial in the termination action was overruled by the court on February 9, 1978. Appellant timely filed her appeal bond on February 23,1978. The transcript was due to be filed in this Court on April 10, 1978. Appellant filed no transcript by that date. A transcript of the summary judgment proceedings was tendered for filing with the Clerk of this Court on July 12, 1978. That transcript also contained the termination suit proceedings. The judgment in the termination suit, however, was final some months before July 12, 1978.

The order granting summary judgment is reversed and the cause is remanded to the district court.

Reversed and Remanded.


author: MASSEY, Chief Justice.

text:
    CITY OF AUSTIN, Appellant, v. Charles L. SMITH, Appellee.
    No. 18075.
    Court of Civil Appeals of Texas, Fort Worth.
    March 22, 1979.

      Jerry L. Harris, City Atty., and Pam Reed, Asst. City Atty., Austin, for appellant.
    Colbert & Berliner and Edward C. Berliner, Austin, for appellee.
   OPINION

MASSEY, Chief Justice.

Workers’ compensation claim was presented by Charles L. Smith against the City of Austin, a self-insurer under Tex.Rev.Civ.Stat.Ann. art. 8306, et seq., “Workmen's Compensation Law”.

Smith’s claim was ultimately resolved in his suit in a District Court of Travis County. Trial was before a jury and a verdict signed by eleven of the jurors was returned, finding, in substance, the following: Smith sustained an injury on or about October 19, 1976 while in the course of his employment by City of Austin; the injury was a producing cause of total incapacity beginning November 22, 1976 and persisting until March 31, 1977; the injury was a producing cause of partial incapacity beginning April 1,1977 to terminate April 1, 1982; his wage earning capacity during partial incapacity was and will be $94.00 per week; and medical care was reasonably required as result of the injury on or about October 19, 1976, for which he reasonably and necessarily incurred liability for payment in the amount of $1,638.05.

On this jury verdict judgment was rendered and it was signed on November 18, 1977. Judgment was for $21,684.48. Therefrom City of Austin appealed.

We affirm.

At time of Smith’s alleged injury of October 19, 1976 he was a firefighter employed by the City of Austin. The injury, so called, was or resulted by reason of a “swine flu inoculation”, the ingredients for which were provided by the federal government and administered by the city through its agents and employees.

While receipt of the inoculation was voluntary in that Smith was at liberty to refuse it, the jury was entitled to believe that the City desired that he receive it for its own welfare (in that greater assurance of ability of Smith to perform the duties of his employment would be provided). The record shows that Smith desired to receive it for his individual protection. Smith was a member of a crew of men stationed at the municipal airport. He was assigned the duty of transporting others of his crew by driving a municipally owned vehicle to the place in Austin where the inoculations were to be received.

The material time and events for consideration were those between the time of arrival at the place for inoculation and the time of departure therefrom after those of the crew who desired to do so had submitted to inoculation. Smith was at the place for inoculation to receive his “shot” or not, as he might choose. He chose to and did receive his “shot”.

Smith was one of those individuals whose reaction to the “swine flu inoculation” was unfavorable. There is no question, and it is not in dispute, but that the presence of the vaccine in his body had a deleterious and disabling effect. For our purposes there is not a question upon whether it resulted in the periods of total incapacity and periods of subsequent partial incapacity found by the jury.

What is contested by three points of error relates to existence or non-existence of “injury” and/or “injury sustained in course and scope of employment”, as applied to Smith, through the inoculation and injection of the serum into his body.

These points of error' are that (a) there was no evidence of injury in scope and course of his employment; (b) or that there was insufficient evidence of such; and (c) that the jury finding that Smith sustained • “injury” on or about October 19, 1976 (defined in the charge as damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom) was so contrary to the greater weight and preponderance of the evidence as to be clearly wrong.

The City’s essential contention is that there did not exist the requisite causal connection between the work Smith was employed to perform with the injury he sustained. In other words the contention is that Smith failed to prove — sufficiently, in any event, to properly show (a) that the causative danger was peculiar to his particular work as distinguished from a danger to the public at large; (b) and/or that the causative danger was in any way incidental to and arisen out of Smith’s relationship as an employee to his employer; (c) and/or that his “injury” originated from a risk connected with his employment and one which flowed from that source. Citing Shelton v. Standard Insurance Company, 389 S.W.2d 290 (Tex.1965), the City insists that Smith had the obligation to prove but did not prove not only that he was engaged in or about the furtherance of his employer’s business or affairs, but also that his injury had to do with and originated in such work.

The City appears to liken what occurred to an employer who furnishes transportation for his crew of workmen from a work-site into town to a restaurant in order that those of them who might desire to eat are thereby afforded the opportunity; and where one of them takes advantage of the opportunity and does eat — at his own expense, food of his own choice — and where as result something in that which he has chosen to eat causes him to become ill and thereby incapacitates him. It is readily seen that under the circumstance hypothesized there would not have been an injury covered by the Texas Workmen’s Compensation Law.

In its brief the City seeks to support its position by certain language to be found in Texas Employers’ Ins. Ass’n v. Mitchell, 27 S.W.2d 600 (Tex.Civ.App.—Texarkana 1930, writ dism’d). That was a case in which the finding of “injury in course of employment” was upheld. Among other reasons for so holding was that the injured employee was required to receive a vaccination for smallpox by the employer. In the opinion there was discussion of cases from other jurisdictions in which vaccinations were held not to have occasioned injuries in the course and scope of employment by a master because not ordered or in any way brought about by the employer, but instigated by a public agency in the public interest. Also discussed were cases in which infections which occurred were not in any way due to the work or the place of work.

We reject the contentions of the City of Austin and accept the theories of Smith. In other words we hold that there was evidence of injury in the scope and course of Smith’s employment by the City, that it was sufficient to support the answer returned by the jury so finding, and that such finding was not so contrary to the greater weight and preponderance of the whole of the evidence in the record as to be clearly erroneous.

Prior to the occasion when Smith was inoculated his employer, City of Austin, established a city-wide priority program for the distribution of the swine flu vaccine, with a priority plan for inoculation of persons. The first priority group (after the aged and chronically ill) was a group of persons who, because of their occupations, would be critical to the community in the event of a swine flu epidemic. Included therein were the firemen of the City of Austin, one of whom was Smith.

It was the nature of Smith’s duties of employment which caused his job to be classified in the priority group mentioned. Had he not been in that group he would not have been authorized to have received the vaccine as early as October 19th, the date on which he did receive it. Smith received the shot while he was on duty, at a facility owned and operated by his employer, City of Austin. There is testimony from the Mayor of the City of Austin, Jeff Friedman. In substance a part of that to which he testified was:

There was no direct mandate saying you will have everybody line up, but it was made very clear that they were to be taken over in City vehicles and given time off from their functions, although they were still on emergency call; if something came up, they would have to leave the line. And I think the inference is pretty clear . . . from working in City government for six years . that when it is told, you have to do it and that it was pretty clear they wanted to have them . . . that the supervisors wanted them to have them (the inoculations).

Injury through inoculation should be covered “if there is a combination of strong urging by the employer and some element of mutual benefit . . . .” Larson, Workmen’s Compensation Law § 27.32 (1978), “Inoculations and employment health tests”. Larson, analyzing a New Jersey case where a smallpox inoculation was made available to all employees by the employer during a smallpox scare quotes therefrom under the section (§ 27.32) as follows:

“. . . insofar as it aided in the prevention of smallpox within the employee group it protected the employer against possibly disastrous business consequences. . While his efforts were highly commendable ... it would be unrealistic to find that they were for the exclusive benefit of the employees and not additionally designed to further a sound employer-employee relationship and safeguard the employer against the serious effects of a case of smallpox against its employees.” Saintsing v. Steinbach Company, 1 N.J.Super. 259, 64 A.2d 99, 101 (1949).

and further cites with approval a Louisiana case where injections were given on the employer’s premises by a trained nurse on the employer’s staff, though the workmen were not ordered or required to take the inoculation. In that case the court said:

“[T]he convenience of the facility and the posted notice constitute a suggestion, an invitation and urge, calculated to induce an employee to submit to the treatment who might not otherwise have done so.” Smith v. Brown Paper Mill Company, 152 So. 700, 704 (La.Ct. of App.1934).

Three other points should be considered when analyzing the facts of the instant case to determine if Smith was in the course of his employment.

First, Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W.2d 333 (1948), and the line of cases construing it, culminating in Texas Employers’ Ins. Ass'n v. Page, 553 S.W.2d 98 (Tex.1977), hold that: “The risk may be no different in degree or kind than those to which he may be exposed outside of his employment. The injury is compen-sable, not because of the extent or particular character of the hazard, but because it exists as one of the conditions of the employment.” Garcia, supra, at 337.

The second line of cases states that acts essential to the health, comfort and convenience of an employee while at work are incidental to his service, and injuries sustained in their performance arise out of the employment and are compensable under the statute. Security Mut. Casualty Co. v. Wakefield, 108 F.2d 273 (5th Cir. 1939); Casualty Reciprocal Exchange v. Johnson, 148 F.2d 228 (5th Cir. 1945); New York Casualty Co. v. Wetherell, 193 F.2d 881 (5th Cir. 1952). The jury was entitled to conclude that Smith’s willing acceptance of the inoculation was an act essential to his health, comfort and convenience undertaken while at work. The claim of Smith would be encompassed by the holdings of these cases under the findings of the jury returned in its verdict.

The third line of cases states that an employee can combine purely personal purposes with the discharge of duties as an employee without departing from the course of his employment. Parker v. Royal Indemnity Co., 59 S.W.2d 243 (Tex.Civ.App.—Dallas 1933, no writ); Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App.—Eastland 1931, writ ref’d). The facts in Shook are especially convincing. Shook was on duty for his employer 24 hours per day maintaining an oil well in proper running order. He lived in a shack near the well. His duties did not require that he stay at the well or shack constantly, but he was free to go and come. One night Shook, while out hunting wolves with several other people, was murdered. The court wrote (p. 429);

“[S]o long as he was in a zone where he could hear the engine and was in a position where he could go to it when occasion arose, it could make no difference whether he was sitting quietly in his shack, sleeping, eating, exercising, dancing, playing cards, or doing anything else.
“Shook’s employment was analogous to that of a driver of a fire truck. He spends twenty-four hours per day in and around the fire station to be in readiness to go to a fire when an alarm is turned in. Could it be reasonably and justly contended that such fireman would not be in the course of his employment while playing . . . croquet or baseball on the outside within convenient distance thereof and within hearing of the gong? Surely not. . . . ”

The evidence shows that Smith was on duty when he was inoculated; he was on call at the very time of its receipt, within hearing distance of a “walkie talkie” in communication with his work station so that he could have (and would have) responded instantly had there been an emergency at the municipal airport. At least the evidence raised the issue and in our view almost mandated the very findings which were returned by the jury.

Judgment is affirmed.


author: STERNBERG, Justice.

text:
    MERCHANTS NATIONAL BANK & TRUST COMPANY, Movant, v. PROFESSIONAL CONSTRUCTORS, INC., Respondent.
    Supreme Court of Kentucky.
    Feb. 6, 1979.
    Rehearing Denied May 1, 1979.
    Earl S. Wilson, Todd S. Horstmeyer, Lexington, for movant.
    William C. Jacobs, Lexington, for respondent.
   STERNBERG, Justice.

This appeal involves the priority between a mortgage lien and a materialman’s lien. For convenience, the parties will be identified as follows: Carlsberg Income Properties, Ltd., will be referred to as Carlsberg; Dues Development Company will be referred to as Dues; Professional Constructors, Inc., will be referred to as Pro Con; and Merchants National Bank & Trust Company will be referred to as Merchants.

Carlsberg and Dues, working together, were in the process of developing a tract of land in Fayette County, Kentucky. On February 27, 1974, Dues conveyed the real estate to Carlsberg. In exchange, Carls-berg delivered to Dues a mortgage and a leaseback contract on the subject property. On April 15, 1974, Dues executed and delivered a note to Merchants for $1,125,000. It was secured by a first mortgage lien on the subject real estate and improvements, transfer of Dues’ interest in a security agreement, assignment by Dues of its rights under a lease and sales agreement, personal guaranty document by Joseph J. Dues and his wife, Louella, and a construction loan agreement. Thus, the financial structure for the land development was completed. At that time there were no improvements on the land. None had been commenced, nor had any supplies or materials been furnished.

On July 27,1974, more than three months after the loan had been completed, Dues and Pro Con entered into a written fixed-sum contract for the construction of a multiple purpose warehouse on the subject property. The parties proceeded with extreme caution in making draws from Merchants and in making monthly payments on Pro Con’s current account. A program for monthly withdrawals by Dues so as to pay not only Pro Con but other persons who were working on the warehouse was developed. Each month Pro Con would complete an application and certificate for payment, A.I.A. Document G 702, which application showed the amount of work done, by whom, and the charges therefor. This application, together with the necessary affidavits, lien releases and lien waivers, was sent by Pro Con to Dues. Dues would periodically have its personnel check the work completed, but always would make out the checks and forward them to Carlsberg for signature. These checks were made payable to Pro Con or to Pro Con and a supplier or subcontractor, as indicated on the application and other documents. Carlsberg would sign the checks and forward them to the attorney representing Dues. The attorney would then check the application to ascertain that all funds represented to be due and owing were covered by the checks and by lien releases or lien waivers, would search the records of the Fayette County Court Clerk’s Office for transfers, liens or other encumbrances, and would contact Merchants to instruct it to transfer the necessary funds to the Dues account to cover the checks. He would then forward a copy of the original of the application to Merchants and update the title insurance policy to the amount covered by the aggregate of the disbursements. Dues made 11 regular monthly draws on the loan, from which it made payments of its account with Pro Con (6/25/74-4/15/75).

For causes not clearly manifest by the record, Dues abandoned the project in the summer of 1975, and Pro Con, without direction of or authority from Merchants to do so, continued construction until the warehouse was structurally completed. At least the warehouse was sufficiently completed that a certificate was issued by the building inspector’s office at Lexington, Kentucky, on May 21, 1975, authorizing occupancy of the warehouse.

On August 8, 1975, Merchants declared the note and mortgage in default. On August 15,1975, Pro Con filed a written statement in the office of the County Court Clerk of Fayette County, Kentucky, against Carlsberg (owner) asserting its right to a materialman’s lien on the subject property. This filing was over three months after the last draw had been made and the current obligation paid. On October 3, 1975, Merchants filed suit in the Fayette Circuit Court seeking to recover the unpaid balance due on the note ($955,121.76), with interest, and to enforce its lien rights. Although there were many parties to the action as originally filed, only Merchants and Pro Con remain as litigating parties. The pleadings raise three issues:.

1. Had Dues complied with the terms and conditions of the note and security documents?
2. Did Pro Con have a lien superior to that of Merchants?
3. Was Pro Con a third-party beneficiary of the construction loan agreement?

Dues failed to comply with the terms and conditions of the loan in at least three instances. First, interest was payable monthly on the amounts advanced, which was not paid. Interest stopped being paid on April 1, 1975. Secondly, the warehouse was required to be ready for occupancy and operation on or before April 15, 1975. It was not. Pro Con did receive a certificate from the building inspector's office on May 21, 1975, that the warehouse could be occupied. Thirdly, Dues abandoned the project. In face of these shortcomings in the construction project, which violated the terms of the mortgage, Merchants was fully justified in accelerating the note and enforcing the terms of the note and mortgage. Dues had not complied with the terms and conditions of the note and security documents.

From our study of the record, we are of the opinion that issues two and three can be answered together.

Pro Con argues that it had a material-men’s lien which was prior and superior to the mortgage of Merchants by reason of the fact that prior to each disbursement Merchants had actual knowledge that Pro Con had labored and furnished materials and that Pro Con had not been fully paid. Additionally, Pro Con asserts that it was a third-party beneficiary of the construction loan agreement and, as such, had an equitable lien.

The answer to these issues is twofold. First, Pro Con was dealing with Dues and Carlsberg; it was not dealing with Merchants. Each time that Pro Con was paid, it furnished Dues with a release of lien which provided that all persons involved had been fully paid and that it released Carlsberg, Merchants and Dues from any and all liability, either expressed or implied, and released and waived any and all claims and/or rights or mechanic’s liens and equitable lien rights to which Pro Con then had or may have to the date of payment. Pro Con had fully released its lien rights. Secondly, as to the difference in the amount of money actually disbursed and the face amount of the note, there was no disbursement. The money was never placed in Dues’ bank account.' Bearing in mind that this is a discretionary loan, there was no obligation on Merchants to disburse this sum. Pro Con, by its releases, which were relied upon by Merchants, cannot assert a lien to the sums of money represented by the eleven withdrawals. This does not dispose of the question raised as to the status of the statement of lien filed by Pro Con against Carlsberg on August 15, 1975, and as amended on October 29, 1975.

On March 25, 1976, the parties filed a stipulation which, insofar as it pertained to these documents, states as follows:

“ * * * By reason of having filed a Statement of Lien in the Fayette County Court Clerk’s Office, the Defendant, Professional Constructors, Inc., has a lien on the real property described in Merchants’ Complaint and the improvements thereon. Said lien shall secure the amount, if any, due and owing the Defendant, Professional Constructors, Inc., from the Defendant, Dues Development Company, by reason of the aforementioned contract.”

Is this lien superior to the mortgage of Merchants?

KRS 376.010(2) provides:

“The lien shall not take precedence over a mortgage or other contract lien or bona fide conveyance for value without notice, duly recorded or lodged for record according to law, unless the person claiming the prior lien shall, before the recording of the mortgage or other contract lien or conveyance, file in the office of the clerk of the county court of the county wherein he has furnished or expects to furnish labor or materials, a statement showing that he has furnished or expects to furnish labor or materials, and the amount in full thereof. The lien shall not, as against the holder of a mortgage or other contract lien or conveyance, exceed the amount of the lien claimed or expected to be claimed as set forth in the statement. The statement shall, in other respects, be in the form prescribed by KRS 376.080.”

The mortgage was recorded April 15, 1974, which was sixteen months prior to the recording of the lien statement. Pro Con, as the general contractor, initiated and, as a matter of fact, in its monthly request for payment set forth the names of the persons to whom payments should be made. A retainage of ten percent (10%) of the request was withheld by Merchants. The re-tainage was not placed in a special fund. It was not withdrawn from the bank, nor was it placed in Dues’ bank account in any respect. Merchants learned of the abandonment of the project and made no further distribution. There was no obligation on Merchants to distribute or deposit any money in Dues’ account and none was distributed or placed in its account.

Priority of lien may have been established by Pro Con in two ways. First, priority by reason of Merchants having actual notice of such facts as would give Pro Con a lien as each distribution was made. This avenue was abruptly closed when Pro Con at each draw signed a release of lien. Second, priority to the sum of money representing the difference between the amount of money actually disbursed and the face amount of the note. This sum of money never belonged to Dues as there had been no request for payment or transfer, nor, as a matter of fact, had any of these funds been transferred from Merchants’ account to Dues’ account. This being a discretionary loan, the undistributed funds did not constitute a part of the loan until actual distribution had been made. In other words, as distribution was made, the amount distributed became a part of the debt secured by the mortgage.

The decision of the Court of Appeals of Kentucky is reversed, and the judgment of the Fayette Circuit Court is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    Charles Ray WATSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 27, 1979.
    Rehearing Denied May 1, 1979.
    Jack Emory Parley, Public Defender, Mark A. Posnansky, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Watson was convicted of four counts of first-degreé wanton endangerment, KRS 508.060, two counts of theft by unlawful taking of property of a value over $100.00, KRS 514.030, and five counts of terroristic threatening, KRS 508.080. He was sentenced to five years’ imprisonment on each wanton endangerment count, one year on each theft count and twelve months on each terroristic threatening count. The wanton endangerment sentences were to be served consecutively. The remaining sentences were to be served concurrently with each other and the wanton endangerment sentences. He appeals. We reverse and remand.

Watson drove his car into a ditch. Police officers, Mike Walters and Homer Wesley, arrested him for public drunkenness and placed him in the rear of the police cruiser. They also arrested Watson’s brother for public drunkenness and placed him in the rear of the police cruiser. They did not handcuff either of the men. The police told the other people present at the scene that they were free to leave. They returned to their cruiser and noticed that a shotgun and a nightstick were missing. Watson pointed the shotgun at the police officers and ordered them to let him and his brother out of the cruiser. He threatened to kill the police officers if they did not follow his instructions or if they attempted to use the radio. Watson then held the police officers and Hiram Daulton, Charles Daulton and Darrell Brock, who were also present at the scene of the accident, hostage and directed them to get his car out of the ditch. The hostages all safely made their escape when Watson’s attention was diverted. Watson fired four shots at them as they fled. Fortunately, all the shots missed. Watson took the police cruiser and fled the scene. He was arrested the next day.

Watson contends that under the facts of this case KRS 505.020 prohibits his conviction of both wanton endangerment and ter-roristic threatening of the same persons.

KRS 505.020(l)(a) provides:

“When a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense when:
(a) One offense is included in the other, as defined in subsection (2).” (Our italics).

KRS 505.020(2)(d) provides:

“A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:
(d) It differs from the offense charged only in the respect that a less serious injury or .risk of injury to the same person, property or public interest suffices to establish its commission.” (Our italics).

In order to convict on the terroristic threatening counts the jury had to believe that Watson threatened to shoot Mike Walters, Homer Wesley, Charles Daulton, Hiram Daulton and Darrell Brock with a shotgun. In order to convict on the wanton endangerment counts the jury had to believe that Watson fired a shotgun at Mike Walters, Homer Wesley, Hiram Daulton and Darrell Brock. The only difference between the threat and the act in this case is the increased risk of injury to Mike Walters, Homer Wesley, Hiram Daulton and Darrell Brock. Consequently, Watson should not have been convicted of the ter-roristic threatening of these men after he had been convicted of wantonly endangering them. Simply put, the terroristic threat is included in the wanton endangerment. Cf. Luttrell v. Commonwealth, Ky., 554 S.W.2d 75, 78 (1977).

However, we are unable to protect Watson’s rights by merely vacating four of the terroristic threatening convictions, because at trial he requested and was refused an instruction on the presumption of innocence. Our decision in Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978), cert. granted sub nom. Kentucky v. Whorton, - U.S. -, 99 S.Ct. 832, 59 L.Ed.2d 31 (1979), entitles him to a new trial on all charges of which he was convicted.

The Commonwealth urges us to overrule our decision in Whorton, supra, and apply the “Chapman-Harrington Harmless Error Doctrine.” In Whorton, supra, we elected as a matter of state law not to engage in the mental gymnastics inherent in the application of the harmless error doctrine. We chose simple prophylaxis over Talmudic hair splitting. See Darnell v. Commonwealth, Ky., 558 S.W.2d 590, 596 (1977) (Lukowsky, J., dissenting). We perceive no reason to retreat from Whorton, supra.

The judgment is reversed and the cause is remanded to the Pulaski Circuit Court for further proceedings consistent herewith.

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


author: AKER, Justice.

text:
    MEADE CONSTRUCTION COMPANY, INC., Movant, v. MANSFIELD COMMERCIAL ELECTRIC, INC., Respondent.
    Supreme Court of Kentucky.
    Feb. 27, 1979.
    Rehearing Denied May 1, 1979.

      Carl D. Edwards, Jr., William H. Jones, Jr., Vanantwerp, Hughes, Monge & Jones, Ashland, for movant.
    Max Picklesimer, Johnson, Dunnigan & Martin, Ashland, for respondent.
   AKER, Justice.

Meade Construction Company, Inc., seeks review of a decision of the Court of Appeals affirming a judgment of the Boyd Circuit Court which dismissed Meade’s complaint against Mansfield Commercial Electric, Inc. We reverse and remand.

Meade, a general contractor, successfully bid for the construction of the Fairfield Stadium press box at Marshall University in West Virginia. In preparing its bid on the stadium job, Meade solicited bids from various contractors on different aspects of the work. Mansfield submitted the apparent low electrical subcontractor’s bid in which Mansfield agreed to furnish materials and perform all electrical work on the project for $11,500.00. Mansfield’s initial bid was submitted to Meade by telephone. Subsequent to this bid and prior to Meade’s submitting the ultimate contract bid, Meade called Mansfield to ask why its bid was substantially lower than the other bids received by Meade. Mansfield at that time reaffirmed its bid. The day after Meade submitted its contract bid for the job, Mansfield again verified its bid of $11,-500.00 in a letter to Meade.

Meade was subsequently awarded the press box contract. Upon Meade’s request to Mansfield that it execute a written contract and start work, Mansfield notified Meade that it was not going to do the job because Mansfield had not been paid in full for work previously done for Meade. The record is silent as to why Meade had not paid Mansfield. Mansfield was subsequently paid for work performed under the previous contract, but again refused to perform the electrical work. Without soliciting new bids, Meades then contracted with the second lowest subcontract bidder from the initial solicitation of bids to perform the work for $19,812.00.

Meade filed an action against Mansfield seeking to recover the $8,312.00 difference between the respondent’s bid and the amount paid to the subcontractor which actually performed the work. After presentation of evidence by both parties, the trial court dismissed the complaint. The Court of Appeals affirmed.

It is without question that a written contract was never signed by Mansfield. Meade contends that Mansfield is liable despite the absence of a written agreement, under the theory of promissory estoppel. The doctrine of promissory estoppel provides as follows:

“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.” Restatement (Second), Contracts, § 90 (Tent. Draft No. 2, 1965).

We need not decide whether the doctrine of promissory estoppel applies in this state or whether, if so, it governs this case. Suffice it to say that under any conception of fairness and equity, one who submits a quotation for the purpose of its being used in the computation of a bid for a contract should be bound, when the contract is.awarded pursuant to a bid prepared in reasonably foreseeable reliance on that quotation, to accept an agreement in conformity with the quotation. Mansfield submitted a clear quotation which was reiterated both orally and in writing. Mansfield should reasonably have expected that quotation to be used in the preparation of the contract bid, since it had notice that its subcontract bid was substantially lower than the other bids received by Meade. Although the trial judge did not make a specific finding on the question of reliance by Meade, we feel the weight of the evidence clearly compels a finding that Meade did rely upon Mansfield’s offer. Therefore, we hold Mansfield liable to Meade for damages caused by Mansfield’s refusal to honor its subcontract bid.

Mansfield’s refusal to perform the electrical work was not justified by Meade’s slowness in paying Mansfield on a previous contract. If Mansfield operated in fear of non-payment it should never have submitted its subcontract bid initially. Nonpayment under these circumstances is not a legal defense.

Mansfield argues that Meade should have resolicited bids on the electrical work once it became apparent that Mansfield was not going to do the job. Due to the time factor involved and the closeness in price range of the other bids, we feel that Meade’s action was reasonable under the circumstances. Where Meade was faced with the duty to mitigate damages on the one hand and the possibility of its liability for liquidated damages for failure to complete the work under the contract by a specific date on the other, Meade's failure to request additional bids does not appear unreasonable.

Discussion of other questions raised by Meade is obviated by the conclusions reached herein.

The decision of the Court of Appeals and judgment of the trial court are reversed and this case is remanded to the trial court for entry of judgment consistent with this opinion.

All concur.


author: PER CURIAM:

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Harry W. ROBERTS, Jr., Respondent.
    Supreme Court of Kentucky.
    March 20, 1979.
    Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, Michael M. Hooper, Asst. Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    James D. Paitsel, Jr., Warren, Warren & Paitsel, Fulton, for respondent.
   PER CURIAM:

In this disciplinary proceeding the Kentucky Bar Association charged Harry W. Roberts, Jr., a Clinton, Kentucky, attorney and a member of the Kentucky Bar Association, with engaging in unprofessional and unethical conduct calculated to bring the bench and bar of Kentucky into disrepute. Roberts was charged with undertaking to represent a client in a lawsuit against another client while representing the latter client in a separate but related action.

The sole issue raised by Roberts’ answer and response was whether his actions constituted unprofessional conduct calculated to bring the bench and bar into disrepute. Because the facts were not in dispute, the Board of Governors of the Kentucky Bar Association did not appoint a trial commissioner to hear evidence. SCR 3.210.

The Board of Governors considered the pleadings, briefs and exhibits. By a roll call vote, 15 of the 16 members of the board found Roberts guilty of unprofessional conduct. A majority of the board recommended to this court that Roberts be suspended from the practice of law for one year and required to pay the costs of this action.

The conduct complained of concerns a disputed construction contract. In 1975, Dr. Robert Jackson started construction of an office building in Clinton. Jackson contracted Keith Akin to supervise the construction. As supervisor, Akin entered an agreement with Ray Wyatt, D/B/A Mid-States Glass Company, under which Wyatt was to install windows and doors in Jackson’s building. During the course of construction, Akin advanced $5,000.00 to Wyatt on behalf of Jackson.

Conflicts arose between the glass subcontractor and Jackson. As a result, in 1976, Wyatt brought an action against Jacks on, seeking payment for services rendered. Jackson hired the respondent, Harry W. Roberts, Jr., to represent him in that action.

While the Wyatt v. Jackson suit was still pending, Keith Akin contacted Roberts regarding money owed Akin by Jackson. Jackson had advertised his intention to sell his property at public auction on March 4, 1978, and Akin feared he would be unable to recover both the $5,000.00 advanced to Wyatt and the reasonable value of his services as Jackson’s supervisor. The respondent, who had been Akin’s retained counsel for over 15 years, filed a complaint and order of attachment against Jackson on behalf of Akin on March 2, 1978.

Plans for initiating the second lawsuit' were not mentioned by Roberts to Jackson prior to filing; Jackson discovered that his attorney was representing Akin in the subsequent proceeding upon service of the summons and complaint. After being told by Roberts that his dual representation did not present a conflict of interest, Jackson filed a complaint with the Kentucky Bar Association. Roberts thereupon terminated his representation of Jackson.

The Kentucky Bar Association contends Roberts violated Disciplinary Rule 5-105 and Ethical Considerations 5-14 and 5-15 of the American Bar Association’s Code of Professional Responsibility by representing a party adverse to his first client, Jackson, while his representation of Jackson .continued. The Supreme Court of Kentucky has adopted the ABA’s Code of Professional Responsibility as the standard of conduct required of members of the bar. SCR 3.130.

DR 5-105 provides in pertinent part:

“(A) A lawyer shall decline proferred employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
“(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
“(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his .independent professional judgment on behalf of each.”

EC 5-14 provides:

“Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have been differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.”

EC 5-15 provides guidance to an attorney faced with a potential conflict of interest:

“If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests.”

The Kentucky Bar Association submits that Roberts’ dual representation created an actual conflict of interest. This conflict exists because the two lawsuits arose from a common fact situation and are inseparately related. It asserts Roberts’ concurrent employment by both Akin and Jackson potentially permitted him to use a confidential communication of Jackson to Jackson’s detriment. The bar association contends that Roberts breached the fiduciary duty of loyalty owed to Jackson by accepting employment from Akin without first obtaining Jackson’s consent.

In response, Roberts argues he did not represent conflicting interests. He submits that the outcome of either of the two actions would have no effect on the other action because they involved entirely distinct issues. He further contends he had no choice but to undertake representation of Akin, his client of long standing.

This court concludes that Roberts’ conduct contravened DR 5-105. Regardless of whether his actions created an actual conflict of interest, they created a potential conflict between the interests of Akin and those of Jackson. The court is persuaded that Roberts is innocent of any intentional wrongdoing and recognizes that his misconduct caused no actual harm to either client. Nevertheless, the circumstances of the two lawsuits had the potential to affect the exercise of Roberts’ independent professional judgment on behalf of his two clients. Roberts erred in failing to advise both Jackson and Akin of those circumstances and in failing to obtain the consent of each to the multiple representation prior to accepting employment by Akin.

This court feels that a 90-day suspension is sufficient. Therefore, Roberts is hereby suspended from the practice of law for a period of 90 days and ordered to pay the costs of this proceeding.

All concur except CLAYTON, J., who is not sitting.


text:
    Steve REED, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 20, 1979.

      Jack Emory Farley, Public Defender, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
   AKER, Justice.

Appellant Steve Reed was convicted by a jury in Muhlenberg Circuit Court of first-degree robbery, KRS 515.020, and attempted murder, KRS 506.010. The trial court sentenced him to 20 years’ imprisonment on each count, directing that the sentences run concurrently. Reed appeals from that conviction. The judgment of conviction from which he appeals contained the first-degree robbery conviction and the attempted murder conviction. Appellant admitted his participation in the robbery and since his argument on appeal does not attack the first-degree robbery conviction, we hereby affirm so much of the judgment of conviction as deals with first-degree robbery. Our discussion and consideration concerns only the attempted murder conviction.

The incident leading to appellant’s conviction and subsequent appeal occurred in Central City, Kentucky on January 27,1978. At approximately midnight on that date appellant and some companions robbed a Kwik Pik store at gun point. During the course of the robbery, appellant’s gun discharged, resulting in the clerk, Darlene Henderson, being struck in the side of the head by a bullet. Miraculously she survived.

The Commonwealth introduced evidence that the shooting was intentional and appellant contends that it was accidental. During the course of the trial the Commonwealth’s Attorney, on cross-examination of the appellant, held up a pistol reportedly used in the robbery and asked appellant if it was his; whereupon the appellant answered, “That looks like my gun but I couldn’t swear to it.” The Commonwealth, without making any further attempt to identify the pistol as the one used by appellant, offered it as an exhibit, which was admitted into evidence over appellant’s objection.

The trial judge permitted the jury to take the gun into the jury room during its deliberations. After the verdict was returned, and before the jury was dismissed, it was ascertained that seven jurors had performed a test with the gun which had affected their verdict.

Reed argues on appeal that it was error to introduce the pistol when no adequate' foundation had been laid. He asserts that a minimum foundation requires evidence to be identified as that which it purports to be. Appellant contends there is no evidence linking him to the particular gun shown the jury. We agree.

Appellant further argues his 6th amendment confrontation right was violated by the performance of an out-of-court test on the gun. The test, he urges, allowed the jury to consider evidence which was not presented from the witness stand.

The introduction of the pistol into evidence was not necessary to sustain a conviction for attempted murder. However, once the Commonwealth attempted to introduce it into evidence as the gun used by appellant, it must do so properly. It is apparent from the evidence that appellant’s statement that the gun looked like his falls far short of the standards of admissibility which would tend to prove that the gun was the one actually used by appellant in the robbery and subsequent shooting. The proper identification of the pistol is critical to appellant since it was subsequently established that seven of the jurors “tested” the pistol and partially based their verdict on the results of that test. It must be concluded that the jurors were curious as to the difficulty or ease with which the trigger could be pulled as it related to appellant’s claim of accidental shooting.

We need not decide the question of whether the jury could independently test the weapon since the pistol in question was erroneously in evidence, thus making any subsequent test by the jury erroneous. Therefore we conclude that the conviction of attempted murder must be reversed since the jury relied on evidence improperly admitted.

The judgment of conviction of armed robbery is affirmed and the judgment of conviction of attempted murder is reversed and a new trial ordered on the conviction of attempted murder.

All concur.


author: CLAYTON, Justice.

text:
    Evoyd HARRIS, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    March 20, 1979.

      Terrence R. Fitzgerald, Deputy Public Defender, Daniel T. Goyette, Jefferson District Public Defender, Louisville, for mov-ant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Joseph R. Johnson, Asst. Attys. Gen., Frankfort, for respondent.
   CLAYTON, Justice.

Evoyd Harris was convicted upon two counts of trafficking in heroin, a controlled substance, and sentenced to consecutive prison terms totaling 10 years. The Court of Appeals affirmed the judgment of the Jefferson Circuit Court. Discretionary review was granted by this court to interpret KRS 218A.220, which exempts certain persons from prosecution under Chapter 218A for drug offenses.

On August 25, 1976, movant was approached by Pat McDonald, an undercover narcotics detective, and Calvin Guy, a paid informant. McDonald, denying that he was a police officer, identified himself as an addict and asked movant to procure some heroin for him. Movant obtained heroin for McDonald from an unknown seller on two separate occasions.

KRS 218A.220 reads in relevant part:

The provisions of this chapter shall not apply to public officers or their employes in the performance of their official duties requiring possession or control of controlled substances; or to temporary incidental possession by employes or agents of persons lawfully entitled to possession, or by persons whose possession is for the purpose of aiding public officers in performing their official duties.

The statute thus provides a defense to temporary incidental possession of controlled substances to two classes of persons: (1) employes or agents of persons lawfully entitled to possession, and (2) persons whose possession is for the purpose of aiding public officers in performing their official duties. Movant argues that he was acting as an agent for McDonald and as such falls under the first exemption, thereby entitling him to a directed verdict of acquittal. Mov-ant urges this court to adopt the position that under the first exemption the agent need not be aware that his principal is a police officer. We decline to adopt mov-ant’s argument, and hold that an “agent” within the meaning of KRS 218A.220 must have knowledge that the person for whom he is acting is a police officer.

We agree with the Court of Appeals that in this case movant was unsure of McDonald’s status as an undercover detective. Movant was therefore not an agent under KRS 218A.220 and not entitled to a directed verdict. The agency theory being unsupported by the evidence, it follows that the trial court did not err in refusing mov-ant’s agency instruction. Blaine v. Commonwealth, Ky., 459 S.W.2d 759, 760 (1970).

The decision of the Court of Appeals and the judgment of the Jefferson Circuit Court are affirmed.

All concur.


author: SIMEONE, Judge.

text:
    CITY OF KANSAS CITY, Missouri, Respondent, v. William OXLEY, Appellant.
    No. 61027.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.
    L. R. Magee, Hines & Magee, Kansas City, for appellant.
    Clinton Adams, Jr., Aaron Wilson, City Atty., Louis W. Benecke, City Prosecutor, John B. Williams, Asst. City Prosecutor, Kansas City, for respondent.
   SIMEONE, Judge.

This is an appeal from a judgment of the circuit court of Jackson County entered on February 11, 1977, wherein the defendant-appellant, William Oxley was fined $20.00 for exceeding the posted speed limit in the City of Kansas City in violation of a municipal ordinance. Mr. Oxley was originally charged by the City in the municipal court and was fined $20.00. Defendant appealed to the circuit court of Jackson County (Rule 37.38) where the charge was tried de novo (Rule 37.84). After a hearing before the court he was found guilty “beyond a reasonable doubt” of the charge of speeding and again fined $20.00. An appeal was taken to the Court of Appeals, Western District. That court in a majority opinion filed October 2, 1978 held that there was no substantial evidence to support the finding, reversed the cause and discharged the defendant Two judges dissented. One of the judges certified that he deemed the opinion to be contrary to previous decisions of this court and the court of appeals and transferred the cause to this court. We have jurisdiction. We now decide the case as an original appeal under the provisions of Art. V, § 10, Mo.Const.

The facts are not complex but the legal issue is not easily resolved.

On December 1, 1976, Officer Terrence Dean of the Kansas City Police Department was located near 24 Highway and Smalley on a vacant lot “checking the speed of the vehicles on 24 Highway with the use of radar.” When he first observed the vehicle driven by Mr. Oxley, Oxley was “approximately” “one and a half city blocks from my location.” At that time Officer Dean stated that “Well, visually it appeared to me that he was exceeding the posted speed limit and at that time I checked his speed with the use of radar.” The posted speed at that location was 35 miles per hour. Officer Dean stopped Mr. Oxley for exceeding the speed limit and issued a Uniform Traffic Ticket charging him with “Exceeded the Posted Speed Limit” “Driving 45 M.P.H. in 35 Radar.”

At the circuit court hearing the officer was asked to describe the procedure he took in setting up his radar unit that day. He testified that tuning forks were struck and held in front of the radar gun — “[o]ne reading would read 50 miles per hour, the other one 35.” The City sought to introduce certain certificates certifying the tuning forks, but after objection by defense counsel on the ground the certificates were hearsay, the objection was sustained. Then, at the circuit court hearing the following took place:

“Q. [By City Attorney] Officer, based upon your experience as a police officer with the Kansas City, Missouri Police Department, did you arrive at a speed that you believed was the speed of the vehicle operated by Mr. Oxley?
A. Yes, sir, I did.
Q: And what was that?
A. Approximately ten miles over the posted speed limit.
Q. Which would be what?
A. 45 miles an hour.”

During the hearing the pertinent ordinance, § 34.90 was introduced. The City closed its case and the defendant moved for an acquittal which was overruled. Mr. Ox-ley testified that he was driving an 18-foot van truck, licensed for 24,000 pounds and denied he was exceeding the posted speed limit. At the conclusion of the hearing the court stated:

“I believe beyond a reasonable doubt [defendant] is guilty of the charge of speeding. The Court so finds.”

The finding was based on the opinion evidence of the officer and not on radar evidence.

On appeal the appellant contends that the court erred in not entering a judgment of not guilty because the evidence does not support, beyond a reasonable doubt, that he was driving in excess of the posted speed limit in that there is no competent evidence to establish what speed the defendant was driving.

The question in this case is whether or not there was sufficient substantial evidence to convince the trier of the facts that defendant was guilty of speeding beyond a reasonable doubt.

Although we are dealing here with a municipal violation, the violation has criminal overtones and in such a case, the City is required to prove the defendant’s guilt beyond a reasonable doubt. Kansas City v. Bradley, 420 S.W.2d 68, 71 (Mo.App.1967). This was pointed out in City of St. Louis v. Langeneckert, 210 S.W.2d 736, 738 (Mo.App.1948) where the court said:

“The burden was on the plaintiff in this case to produce evidence of such a convincing nature as to convince the trier of facts that defendant was guilty of the offense charged beyond a reasonable doubt, [citing cases].” Quoted in Bradley, 420 S.W.2d at 71.

See also City of St. Louis v. Boos, 503 S.W.2d 133, 135 (Mo.App.1973); Kansas City v. Howe, 416 S.W.2d 683, 689 (Mo.App.1967); Kansas City v. Mathis, 409 S.W.2d 280, 283 (Mo.App.1966).

Over the years certain principles of law relating to the scope of review by an appellate court have become solidified. In considering the sufficiency of the evidence to support a conviction, the appellate court views the evidence most favorable to the prosecution and considers the favorable inferences reasonably to be drawn therefrom; evidence to the contrary is to be rejected. State v. Strong, 484 S.W.2d 657, 661 (Mo.1972); Kansas City v. Stamper, 528 S.W.2d 767, 768 (Mo.App.1975); State v. Gamache, 519 S.W.2d 34, 39 (Mo.App.1975). The appellate court does not weigh the evidence nor judge the credibility of the witnesses, State v. Wright, 476 S.W.2d 581, 584 (Mo.1972), but the scope of review in a criminal or “quasi-criminal” proceeding extends only to a determination of whether there is sufficient substantial evidence to support the verdict.

“. . . We do not weigh the evidence to determine whether the charge has been proven beyond a reasonable doubt; that is a function of the [trier of facts], . . . The scope of our review extends only to a determination of whether there is sufficient substantial evidence to support the verdict [finding] . .” State v. Strong, supra, 484 S.W.2d at 661.

See numerous cases in 9C Mo. Digest, Criminal Law, Key No. 1159.2(5).

The phrase “substantial evidence” was analyzed in State v. Gregory, 339 Mo. 133, 96 S.W.2d 47 (1936). In Gregory, this court through Judge Ellison recognized the principle that where the judgment is supported by substantial evidence, the appellate court will not interfere. This is not because an appellate court lacks jurisdiction, but because the trial court is in a better position' to weigh the evidence accurately and to determine whether the jury performed its duty fairly and impartially. But this court stated: “[w]e must in all cases scrutinize the record to see if the verdict was supported by substantial evidence.” An analysis was made of the phrase “substantial evidence”.

“To amount to more than a scintilla, that is, to be substantial, it has been said: ‘The evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the [trier of the facts] in finding from it the fact to establish which the evidence was introduced.’ [citing cases] In other words, substantial evidence is evidence from which the triers of the fact reasonably could find the issue in harmony therewith.” Gregory, 96 S.W.2d at 51—52.

In a criminal or quasi-criminal proceeding, since the test of substantial evidence is whether the trier of the facts reasonably could find the issue thereon, the review must depend in some measure upon the degree of persuasion required.

“In a criminal case liberty and sometimes life are involved, and there cannot be a conviction except upon a finding of guilt beyond a reasonable doubt. Necessarily, therefore, it becomes the duty of an appellate court as a matter of law to decide whether the evidence was sufficient to induce a belief of the defendant’s guilt beyond a reasonable doubt in the minds [of the trier of the facts] . . .” Gregory, 96 S.W.2d at 52.

The only evidence here from which the court, as the trier of facts, could have found the defendant-Oxley guilty of speeding was that the officer, based on his experience as a police officer, arrived at a speed that he believed to be approximately ten miles over the posted speed limit of 35 m. p. h. The officer first observed defendant a block and a half away; there is nothing to indicate that the officer kept the defendant in view for at least one and one-half city blocks; there is no evidence that he “followed” the vehicle; no foundation was laid for the testimony; there was no evidence of “timing” (Kansas City v. Hill, 442 S.W.2d 89 (Mo.App.1969)); there was no evidence of corroborating mechanical devices. Apparently the officer was stationed in such a position so that the Oxley vehicle was coming toward him; the variance between the estimated speed and the posted speed was not great. The evidence is only that of an uncorroborated opinion of the officer that the defendant was exceeding the speed limit by approximately ten miles per hour over the posted speed. The uncorroborated opinion evidence in this case does not, in our opinion, rise to the level of “substantial evidence” in a “criminal proceeding” so as to warrant the court as trier of facts to find the fact of speeding. See Gregory.

We do no violence to the decisions which hold that the appellate court may not judge the credibility of the witnesses or weigh the evidence. As Gregory points out while the appellate court may not weigh the evidence in a criminal case if the finding is supported by substantial evidence, the appellate court must in all cases “scrutinize the record to see if the [finding] was supported by substantial evidence.” Gregory, 96 S.W.2d at 51.

Nor do we do violence to the principle in civil cases that testimony estimating the speed of a vehicle is competent evidence to be given such weight as the trier of the facts may see fit. Johnson v. Cox, 262 S.W.2d 13 (Mo.1953); Moon v. St. Louis Transit Co., 237 Mo. 425, 141 S.W. 870 (1911); Walsh v. Missouri Pac. Ry. Co., 102 Mo. 582, 14 S.W. 873 (1890). We deal here with a “criminal” proceeding where the standard of proof is of a higher caliber.

All we hold is that under these facts the testimonial opinion of the officer as to the defendant’s rate of speed is not substantial evidence upon which to support a finding of guilt.

Decisions in other jurisdictions do not control the issue raised here. In People v. Olsen, 22 N.Y.2d 230, 292 N.Y.S.2d 420, 239 N.E.2d 354 (1968), the question presented was whether the opinion evidence of police officers, properly qualified to testify as experts, is sufficient to sustain a conviction for speeding. The officers testified they had independently observed the vehicle proceeding at speeds estimated between 50 and 55 miles per hour in a 30 m. p. h. zone. The Court of Appeals held opinion evidence in a proper case uncorroborated by mechanical devices will be sufficient to sustain a speeding conviction. The court held that a police officer’s estimate that defendant was traveling at 50-55 m. p. h. in a 30 mile an hour zone should be sufficient to sustain a conviction for speeding. But the court observed that such testimony, absent mechanical corroboration, might be insufficient since it must be assumed that only a mechanical device could detect such a slight variance with accuracy sufficient to satisfy the burden necessary to sustain a conviction. In Olsen, the variance was wide and the court gave the clear impression that such opinion evidence may well not be sufficient if the variance were less.

In People v. Smalley, 64 Misc.2d 363, 314 N.Y.S.2d 924 (1970), opinion evidence of deputy sheriffs was admitted as to the speed defendant was traveling — in excess of 60 m. p. h. There, however, a proper foundation was laid as to the witnesses and defendant raised no question as to the re-e quirements for such opinion evidence “and that is not an issue here.”

In City of Milwaukee v. Berry, 44 Wis.2d 321, 171 N.W.2d 305 (1969), the estimate of speed was based upon reference points, the officer had sufficient time to calculate the speed, and the vehicle was moving crosswise in front of him. The court held that the testimony that the defendant’s speed was approximately 50 miles per hour was definite, objective and probative on the issue of speeding over 30 miles per hour because the exact speed in excess of 30 miles per hour is unimportant; 35 miles per hour would be as good as 50 to prove the offense. This case is distinguishable from the instant case because the standard for determining whether the evidence was sufficient to meet the burden of proving the violation was “clear, satisfactory and convincing evidence”.

These decisions, in our opinion, do not control the instant proceeding — they are either distinguishable or permit a different standard of proof.

We hold under the facts here the City failed to prove by “substantial evidence” that the defendant was guilty of speeding and that the judgment should be reversed.

The judgment is reversed and the defendant is discharged.

All concur.

      . See State ex rel. Kansas City v. Meyers, 513 S.W.2d 414 (Mo. banc 1974); Kansas City v. Martin, 369 S.W.2d 602, 608 (Mo.App.1963).

        . State v. Wilson, 544 S.W.2d 859 (Mo.App.1976); State v. Achter, 514 S.W.2d 825 (Mo.App.1974).

      . That phrase is constantly used—State v. Taylor, 445 S.W.2d 282, 284 (Mo.1969); Stamper, 528 S.W.2d at 768; State v. Kellick, 521 S.W.2d 166, 168 (Mo.App.1975).


author: GUNN, Judge.

text:
    Harold E. FARRIS and Anita B. Farris, Plaintiffs-Respondents, v. John VIEMAN, Defendant-Appellant.
    No. 39847.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.
    Motion for Rehearing or Transfer Denied March 16, 1979.
    Joseph Howlett, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    Thomas J. Briegel, Briegel & Kimme, Union, for plaintiffs-respondents.
   GUNN, Judge.

The single issue in this prescriptive easement case is whether there was such permissive use of the easement as to destroy the prescriptive right.

Plaintiffs-respondents claimed a 20 foot wide prescriptive roadway easement over defendant-appellant’s property. In August, 1968, defendant erected a gate across the roadway obstructing plaintiffs’ use of it. Defendant denied actually constructing the gate but at least announced his intention to do so. Plaintiffs filed a two count action to enjoin defendant’s maintenance of the gate and for damages as a result of its obstruction. The trial court found that the evidence established a prescriptive roadway easement over defendant’s land in favor of plaintiffs, ordered the removal of the gate and enjoined defendant from interference with plaintiffs’ use of the easement. Nominal damages of $1.00 were allowed. Defendant appeals, and we affirm.

The portion of the trial court’s order pertinent to this appeal provides:

The evidence clearly showed and the Court finds that for at least fifty-seven years prior to the trial the roadway in question, as described in Plaintiff’s Exhibit No. 17, had been in open, notorious, continuous and uninterrupted use by the Plaintiffs’ predecessors in title and others. There was no evidence to explain how such usage began and, therefore, a presumption arises that it was adverse and under a claim of right. The use of the roadway was an infringement of the rights of the owners of the land over which it crossed and, no doubt, those owners initially had a right to prevent it. There was no evidence of any attempt to interfere with the use of the roadway until August, 1968, although there was some evidence offered that the use of the roadway was with the permission of the owners of the servient land. The burden is upon the Defendant to show that the use of the roadway was with permission of the servient owner. The fact that a twenty foot strip for another roadway was granted in 1920 is not persuasive evidence that the usage was with permission. It can just as easily be construed as evidence that there was no permission to cross the land now owned by Defendant. Nor would the granting of permission after the road easement had already been established by adverse use have any legal effect.
The Court finds that the Defendant has not overcome by a preponderance of the evidence the presumption of adverse use. Therefore, the easement is established.

Defendant concedes that plaintiffs have established their use of the property for a time exceeding the statutory period of ten years. He also accepts as a correct proposition of law — and indeed it is — that proof of prescriptive use without evidence of how it began creates a prescription of adverse use under claim of right, casting the burden on the defendant to show permissive use. Day v. Grisham, 571 S.W.2d 473 (Mo.App.1978); McDougall v. Castelli, 501 S.W.2d 855 (Mo.App.1973). However, defendant refers to the evidence and contends that he rebutted the presumption of adverse use by presenting testimony of witnesses other than plaintiffs that the use of the roadway was permissive. But the fact is that plaintiffs were steadfast in their denial that their use was permissive and other than hostile. Defendant’s actions with regard to the eon-struction of the gate seem to support plaintiffs’ right to the use of the roadway. Defendant’s testimony was that when he mentioned the construction of a gate to block the roadway, plaintiff Harold Farris “became immediately hostile;” that in a “flare of temper,” he said that he would tear it down; “nobody was going to fence him out of his place and if I [defendant] put the gate up he would tear it down.” The foregoing clearly indicates a hostile and non-permissive use of the land by plaintiff, and as previously mentioned, defendant concedes all the other requisite elements, including length of time, to establish the prescriptive use easement.

All essential factors to establish plaintiffs’ prescriptive use of the roadway were present. The matter of conflict between the plaintiffs’ and defendant’s testimony as to whether or not the use was permissive was for the trial court to resolve, which it did in plaintiffs’ favor. Spooner v. Bates, 550 S.W.2d 200 (Mo.App.1977), is directly on point in this regard. But see Lawless v. Sears, Roebuck & Co., 555 S.W.2d 79 (Mo.App.1977), where all the evidence, including plaintiff’s showed a permissive use. Such is not the case here. There was substantial evidence to support the trial court’s order.

Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.

      . For a thorough treatment of the law and case listing regarding roadway easements by prescriptive use, see George v. Dickinson, 504 S.W.2d 658 (Mo.App.1978), and Spooner v. Bates, supra.


text:
    William J. HAYES, Respondent, v. Bonita Faye REYNOLDS, Toby Reynolds and Diane Stoker, Appellants.
    No. 40098.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.
    Motion for Rehearing or Transfer Denied March 16, 1979.
    Thurman, Nixon, Smith, Howald, Weber & Bowles, Jeremiah Nixon, Hillsboro, for appellants.
    Arthur E. Herder, Jr., St. Louis, for respondent.
   GUNN, Judge.

This appeal arises out of proceedings regarding the custody of a minor child born out of the marriage of William J. Hayes and Christina Lynn Hayes. In a child custody modification proceeding subsequent to dissolution of marriage, the father, William Hayes, respondent in this appeal, was granted temporary custody of his child, William Hayes, Jr., under the supervision of the Division of Family Services. Alleging that he was frustrated in the exercise of his custodial rights by the mother, Christina Hayes, the father filed a motion for enforcement of the decree directed to the mother. After a hearing at which the mother did not appear, the trial court issued its order transferring custody of the child to the father with a contempt citation against her. The order also temporarily restrained the appellants in this appeal, the maternal grandparents and aunt of the child, and directed them to cease and desist from interfering with the father’s custody rights. After a second hearing at which the maternal grandparents and aunt appeared, the trial court issued the following order from which this appeal is taken:

“Comes now the Court on the 27th day of January, 1978 and having previously issued a Temporary Restraining Order, dated- December 23, 1977, does hereby ORDER, ADJUDGE and DECREE that Bonita Faye Reynolds, Toby Reynolds and Diane Stoker refrain from in any way interfering with the custody rights of William J. Hayes, Sr., and the custody rights of the Division of Family Services of the State of Missouri, and you are hereby so enjoined.
It is further ordered by the Court that in the event, that the physical custody of William J. Hayes, Jr. comes into the hands of any one of the three above named parties, that the child be immediately and forthwith be turned over either directly to this Court or to the Division of Family Services.
Further, the Court orders that if any of the three above named parties should learn of the whereabouts of Christina Lynn Hayes, that this information is to be given immediately to the Court or to Mrs. Elise Humble of the Division of Family Services of the State of Missouri.”

The mother did not appear with the child at any of the proceedings.

We are compelled to dismiss this appeal on the basis of appellants’ brief. Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978), makes clear the necessity for briefs to comply with the requirements of Rule 84.04. First, the statement of facts is decidedly nubilous, containing only a one-sided, argumentative approach to the case without adequate reference to the transcript, in total disregard of Rule 84.04(c) and (h). Second, the points relied on, which read as follows, are mere abstract statements in violation of Rule 84.04(b):

The temporary restraining order and subsequent injunction issued by the Trial Court must be dissolved by the Appellate court as being void on two separate grounds: first, by acting on its own motion and in disregard of Rule 92 the court was with jurisdiction to issue injunctive relief to Respondent. Secondly, by issuing such relief pursuant only to Respondent’s speculation and conjecture — and in disregard of Appellants’ testimony — the court ignored clear and established equitable principles and acted beyond the scope of its judicial discretion.

Particular reference is made to appellants’ complaint that the trial court accepted respondent’s testimony and disregarded appellants’. Such is clearly within the prerogative of the trial court, for it is to judge the credibility of the witnesses, accepting or rejecting all, part or none of the testimony. Estate of Sheets v. Sheets, 558 S.W.2d 291 (Mo.App.1977); L.H.Y. v. J.M.Y., 535 S.W.2d 304 (Mo.App.1976). Thus, the statement that the trial court accepted some of the evidence and disbelieved other forms no basis for relief. We also note that there was substantial basis for the court’s order granting respondent the relief sought.

We are cognizant of the precept that in a child custody proceeding, we are to adhere to strict application of Rule 84.04 only with considerable circumspection. Myers v. Myers, 480 S.W.2d 74 (Mo.App.1972). However, in this case we see no harmful effect by our dismissal of appeal, as the trial court’s order was obviously a proper application of § 452.365, RSMo 1969 to enforce its custody decree. The order did not interfere with any of appellants’ custodial rights — apparently they had none. It only restrains them from interfering with the father’s.

Appeal dismissed.

REINHARD, P. J., and CLEMENS, J., concur.

      . See also Weier and Fairbank, Why Write a Defective Brief?, 33 J. of Mo. Bar 79 (1977).

      . We suppose that appellants mean “without,” but the argument portion of their brief is not clear in this regard. There seems to be a melding of jurisdiction and abuse of discretion, e. g.:
      Pursuant to this factual review, the issue before the Court on appeal is clearly delineated — did the trial court exceed it’s [sic] jurisdiction and improperly exercise it’s [sic] judicial discretion in issuing the TRO and injunction to [sic] appellants so as to render them void. It is appellant’s [sic] contention that this issue must be resolved in the affirmative and that the judgement [sic] be reversed and the cause remanded to the trial court with appropriate instructions dissolving [sic] the injunctive orders.
      To fully grasp the extra jursidictional [sic] nature of the Trial Court’s attempted action and the accompanying abuse of it’s [sic] judicial discretion, it is necessary to review the nature and purpose of injunctive relief.