author: McKAY, Justice.

text:
    L & M-SURCO MANUFACTURING, INC., Appellant, v. WINN TILE COMPANY, Appellee.
    No. 1190.
    Court of Civil Appeals of Texas, Tyler.
    April 19, 1979.
    Rehearing Denied May 17, 1979.

      Michael L. Dunn, Kenley, Boyland, Hawthorn, Starr & Coghlan, Longview, for appellant.
    Leonard E. Davis, Potter, Guinn, Minton, Roberts & Ireland, Tyler, for appellee.
   McKAY, Justice.

The opinion of this Court dated March 22, 1979, is withdrawn and the following substituted therefor.

This is a venue case. The court below overruled the plea of privilege of one of the defendants and this appeal has resulted.

Winn Tile Co., appellee, brought this action against L & M-Surco Manufacturing, Inc. (appellant), L & M Tile Products, Ltd. of Canada, and Monarch Tile Manufacturing, Inc. Appellee is an installer of ceramic tile; appellant and the two other defendants are engaged in the business of manufacturing, selling, and distributing ceramic tile products. Appellee alleged that, relying on the defendants’ warranties regarding their surpoxy mortar compound and epoxy grout compound, it purchased the compounds and properly used them in installing ceramic tile in a swimming pool at Stephen F. Austin University at Nacogdo-ches, Texas, in the spring of 1975. Further, appellee alleged that shortly after installation, a glue-like substance began seeping from the joints between the tiles, spotting and smudging the entire pool area, and rendering the installation unacceptable and worthless. The mortar and grout compounds, according to the petition, were defective, unfit for use, and failed to conform to the warranties made by the defendants. Appellee averred further that, after considerable effort to resolve the problem, it became necessary for it to remove the tile and the bedding compound and replace them, to its damage in the sum of $42,-355.28.

Appellee thus alleged a breach of express and implied warranties by the defendants. It also asserts a cause of action for violation of the Deceptive Trade Practices and Consumer Protection Act, Tex.Bus. & Comm. Code Ann. sec. 17.41 et seq. (hereinafter “DTPA” or the “Act”) in that defendants allegedly committed false, misleading, and deceptive acts and practices, their actions being allegedly unconscionable. Under the provisions of said Act, appellee sued for treble damages and attorney’s fees.

In response, appellant asserted its plea of privilege, alleging that it was neither a resident of Smith County, the county in which the suit was instituted, nor did it have an agency or representative in said county, and further alleging that its residence was Dallas County. Moreover, appellant claimed there was no exception to exclusive venue in its county of residence provided by law and prayed for a transfer of the cause, as to it, to Dallas County. Appellant also filed its answer, consisting of a general denial, subject to its plea of privilege.

Appellee entered its controverting plea, alleging that its residence is Smith County and that appellant was and is doing business in Smith County. Appellee further states that two exceptions to exclusive venue in the county of appellant’s residence are provided by law: (1) since this is an action for breach of warranty by a manufacturer, subdivision 31 of Article 1995, Tex.Rev.Civ. Stat.Ann., provides for venue in the county of suit; and (2) alternatively, the special venue provision of the DTPA allows venue in Smith County.

Following a hearing on appellant’s plea of privilege, the trial court entered its order overruling said plea. Appellant thereupon duly perfected its appeal of that interlocutory order to this court, bringing two points of error. The substance of this appeal, as will be seen, is a question of the correct definitions of two terms. In its first point, appellant contends that the trial court erred in overruling its plea of privilege because appellee was not a “consumer” under the DTPA.

Section 17.56 of the DTPA contains its special venue provision. Inasmuch as this suit was filed prior to May 23, 1977, the effective date of the 1977 amendment to that section, we will be concerned with the section as it read before that date, which was as follows:

“Sec. 17.56. Venue
“An action brought under Section 17.50 or 17.51 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or is doing business.”
Section 17.50 provided, in part:
“Sec. 17.50. Relief for Consumers
“(a) A consumer may maintain an action if he has been adversely affected by any of the following:
“(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this sub-chapter;
“(2) a failure by any person to comply with an express or implied warranty; “(3) any unconscionable action or course of action by any person;
“(b) In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended.”
[Emphasis added.]

Section 17.46 provided and now provides, in part:

“Sec. 17.46. Deceptive Trade Practices Unlawful
“(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
“(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:
“(5) representing that goods . have . . . characteristics, ingredients, uses, benefits, or quantities which they do not have . . .;
“(7) representing that goods or services are of a particular standard, quality, or grade ... if they are of another. . .."

These are the statutory provisions under which appellee sues, his allegations coming within sec. 17.50 provided that he is a “consumer” within the meaning of that term as used in sec. 17.50(a). That term is defined in sec. 17.45, Definitions. That section was originally passed, with the rest of the sub-chapter, in 1973; it was amended in 1975 and again in 1977. The purchase of the goods involved here occurred prior to the effective date (September 1, 1975) of the 1975 amendments. At the time of said purchase, the subsection read, “ ‘Consumer’ means an individual who seeks or acquires by purchase or lease, any goods or services.” [Emphasis added.] In 1975, the words, “partnership or corporation” were added after the word “individual,” and in 1977, the words “or governmental entity” were added. The term “individual” has not been defined in the act. It is not disputed that appellee “acquire[d] by purchase . . [the] goods” involved here. The point of contention between the parties is whether appellee, as a corporation, came within the existing definition of “consumer,” i. e., was the corporation an individual ? We agree with appellant that it was not.

The basic rules of statutory interpretation are to seek diligently and enforce the intention of the Legislature in enacting the statute in question, said intention to be determined from the entire act and not from isolated portions thereof. Further, said intention controls over the language used, i. e., the intent rather than the strict meaning of the words used determines the interpretation to be given the statute. City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951).

In order to determine the intention of the Legislature in defining the term “consumer” as “an individual,” we look first to the remainder of the definitions section of the DTPA. The term “person” is there defined as “an individual, partnership, corporation, association, or other group, however organized.” This definition is in the original act, and has not been amended. The use of both of the words “corporation” and “individual” in the definition of “person” indicates that the Legislature did not consider the latter to include the former. Thus, prior to the effective date of the 1975 amendments, the term “person” specifically included corporations while the term “consumer” did not. We agree with appellant that it is clear that the Legislature knew the difference between a term which included corporations and one which did not. Had the Legislature desired to include corporations and other business organizations in the term “consumer,” it would have been a simple matter of defining that term as a “person” rather than as an “individual,” or merely expressly including corporations in the term “consumer.” We must presume that the Legislature, by using different terms, had different significations in mind, and used them advisedly.

Viewing the entire act as it existed at the time of the purchase of these goods, we feel that it was the original intention of the Legislature in enacting it to protect individual natural persons, as consumers, from the overreaching of others. We do not feel that the subsequent amendment of the term “consumer” to include business and even governmental entities should alter our conclusion as to the legislative intent with regard to the original enactment.

Significantly, appellee cites us to no case, and we have found none, involving a corporate plaintiff which was allowed to sue as a consumer for redress under the DTPA, wherein the cause of action arose during the period between that Act’s original effective date (May 21, 1973) and the effective date of the 1975 amendment (September 1,1975) giving to corporations and partnerships a right of action thereunder.

Appellee argues that to hold that corporations were not consumers prior to September 1, 1975, would violate the underlying purposes of the DTPA. Appellee, however, in contending that the purpose of the statute is “to penalize the wrongdoer,” misstates the express purposes of the act which are “ to protect consumers . . . and to provide . . . procedures to secure such protection.” Sec. 17.44, Tex.Bus. & Comm.Code Ann. [Emphasis added.] Our holding here does no violence to those express purposes.

Appellee also contends in reply to the first point of error that appellant’s acts which allegedly constitute violations of the DTPA extended beyond September 1, 1975, thus entitling appellee to relief as a “consumer” within the meaning of that term as amended by the 1975 amendments. Appel-lee in oral argument cites the case of Temple News Agency v. Want Ads of Waco, 573 S.W.2d 269, 271 (Tex.Civ.App.—Waco 1978, no writ), for the proposition that a continuing course of conduct extending after the effective date of a statute (or presumably, an amendment to an existing statute) gives rise to a right of action under that statute (or amendment). In support of its contention, appellee states that although the purchase of the allegedly defective goods was made in spring 1975, appellant continued to make representations to appellee that the problem that had arisen would be cured if appellee would clean the pool according to appellant’s instructions. Appellee claims to have cleaned the pool in August 1975, and again in December 1975. For this contention appellee relies upon the following testimony, at the hearing on the plea of privilege, of Lloyd Watson, the president of appellee:

“Q[uestion by appellee’s counsel] Did you notify L & M-Surco of this phenomenon [the seeping of the glue-like substance from the joints between the tiles]?
“A[nswer by Watson] Yes, we did.
“Q. And did they come out and look at it?
“A. Mr. Kirn [Division manager of appellant] came down and inspected the pool, yes.
“Q. Did they give you any advice as far as curing the problem?
“A. They told us to have the pool drained to clean it up.
“Q. Did you follow their instructions?
“A. We did.
“Q. When was the first time that you cleaned the pool, do you recall?
“A. I believe it was August of 1975.
“Q. Okay. When was the second time that you drained the pool and cleaned it out?
“A. In December of 1975.
“Q. Okay. And did these suggested techniques cure the problem?
“A. No, it continued.”

Watson went on to describe the removal and replacement of the tile.

It is not disputed that the purchase of the products in question was made prior to September 1, 1975. Therefore, any representations in the nature of warranties which were relied upon by appellee in purchasing the goods were made and relied upon prior to that date. Although the above testimony demonstrates that the second cleaning of the pool was performed after September 1, 1975, neither it nor any other evidence presented at the hearing demonstrates that any representations were made by anyone on behalf of appellant to appellee after that date. The instructions said by Watson to have been given by appellant, i. e., to drain and clean the pool, apparently were given prior to the first cleaning in August 1975. There is no indication that those instructions or any accompanying representations were repeated after September 1, 1975.

It is clear that under the DTPA as it read at the time suit was filed herein, appellee, as plaintiff, was required, not merely to allege a cause of action under the act, but to prove such a cause of action, in order to take advantage of the special venue provision, sec. 17.56. That section, prior to May 23, 1977, provided, in part, “An action brought under Section 17.50 . . . may be commenced in the county [where the defendant] ... is doing business.” Effective May 23, 1977, it was amended to read, “an action brought which alleges a claim to relief under Section 17.50 . may be commenced in the county [where the defendant] . . . has done business.” [Emphasis added.] Appellee’s petition in this case was filed on May 20, 1977.

Appellee therefore falls squarely within the rules announced in Doyle v. Grady, 543 S.W.2d 893 (Tex.Civ.App.—Texarkana 1976, no writ); Hudson & Hudson Realtors v. Savage, 545 S.W.2d 863 (Tex.Civ.App.—Tyler 1976, no writ); and Hanssard v. Ledbetter, 561 S.W.2d 34 (Tex.Civ.App.—Waco 1978, no writ). In Doyle and Hudson the courts held that the general rule requiring a plaintiff to plead and prove a cause of action to support venue was applied to the DTPA’s special venue provision as it existed prior to May 23, 1977. Doyle, supra at 895; Hudson, supra at 868. This court in Hudson additionally pointed out that it is essential that the application of any venue exception relied upon must clearly appear in the record, citing Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 (1951), and that venue may not be established by implication, citing Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948). The court in Hanssard held that where the plaintiff filed suit, alleging a cause of action under the DTPA, prior to the effective date (May 23, 1977) of the amendment to sec. 17.56, he must prove his cause of action. The court also pointed out the well settled rule that venue of an action is controlled by the law in effect at the time of the institution of the suit. Id. at 36-7. In the instant case, appellee failed to prove any violation of the DTPA by appellant after September 1, 1975, so as to take advantage of appellee’s status as a “consumer” after that date.

We also note that appellee failed to plead any facts which demonstrate specifically that any action or representation was made by appellant after September 1,1975, which would constitute a violation of the DTPA.

Appellee, therefore, was not a “consumer” within the meaning of the DTPA at the time of the acts complained of and had no standing to sue under the provisions of that Act. It therefore cannot maintain venue in the county of suit pursuant to the special venue provision of the Act. Accordingly, appellant’s first point of error is sustained.

In its point of error two, appellant asserts that the trial court erred in overruling its plea of privilege in that venue in the county of suit was not properly established under the provisions of subdivision 31, Article 1995, supra, because the products involved are not “consumer goods.”

Article 1995, subdivision 31, provides:

“31. Breach of warranty by a manufacturer. — Suits for breach of warranty by a manufacturer of consumer goods may be brought in any county where the cause of action or a part thereof accrued, or in any county where such manufacturer may have an agency or representative, or in the county in which the principal office of such company may be situated, or in the county where the plaintiff or plaintiffs reside.” [Emphasis added.]

The venue facts to be established by a plaintiff attempting to maintain venue in a particular county pursuant to subdivision 31 are: (1) that the suit is one for breach of warranty; (2) that the defendant is a manufacturer of the product in question; (3) that the product in question is consumer goods; and (4) that the suit is brought in the county where the plaintiff resides. The court can look to the pleadings to determine whether the nature and character of the suit are those of one for breach of warranty; the other three venue facts must be established by extrinsic proof using the standard of a preponderance of the evidence. Hall v. Ford Motor Co., 565 S.W.2d 592, 594 (Tex.Civ.App.—Corpus Christi 1978, no writ). The suit here is one for breach of warranty, and appellee has established that appellant manufactures at least one of the products involved and that the suit was brought in the county of appellee’s residence. The only question is whether the products are “consumer goods.”

Both parties to this appeal cite and attempt to rely upon Maintenance and Equipment Contractors v. John Deere Co., 554 S.W.2d 28 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ dism’d). There the plaintiff was injured when a tractor leased to his employer by the defendant overturned while he was operating it. The manufacturer of the tractor, John Deere Co., was also made a defendant and secured a change of venue to the county of its residence. The lessor filed a third party action against the manufacturer who again asserted a plea of privilege. That plea was controverted by the lessor pursuant to, inter alia, subdivision 31 of Article 1995. The plea as to the third party action was also granted and that cause transferred. On appeal, the court was confronted with the question whether the tractor constituted “consumer goods” as that term is used in subdivision 31. The manufacturer contended that it was not, because the applicable definition of that term is that found in see. 9.109 of the Texas Business and Commerce Code (hereinafter “TBCC”), to-wit: “Goods are . . . ‘consumer goods’ if they are used or bought for use primarily for personal, family or household purposes . . . .” In rejecting that contention, the court stated:

“Since the term ‘consumer goods’ is not defined in our venue statute, it should be construed in the sense in which it is understood in common language. See Ex parte Mehlman, 127 Tex.Cr.R. 257, 75 S.W.2d 689, 690 (Tex.Cr.App.1934); that is, a broad interpretation should be used. The Uniform Commercial Code distinctions between consumer goods, equipment, farm products and inventory are very narrow and have been written into article 9 which applies generally to transactions involving security interests. . We also note that subdivision 5(b) of our venue statute appears to accept a broad definition of consumer goods and specifically mentions goods used for agricultural purposes.”

The court went on to hold that the tractor was consumer goods.

Appellant argues that the commercial products involved here are not “consumer goods” if that term is “construed in the sense in which it is understood in common language.” It states in its brief, “no common understanding of the term ‘consumer goods’ includes a component product which is designed to be mixed with another product which is then incorporated into the construction process of a swimming pool built by a commercial contractor in the regular pursuit of its business purpose.” Further, appellant contends that the court in John Deere, supra, was incorrect in rejecting the TBCC Article 9 definition, if it was rejected because said definition applies only to the narrow meaning required for secured transactions. It points out that Article 2 of the TBCC adopts the Article 9 definition for commercial transactions, a point ignored by the John Deere court. Appellant also points to the restrictive definitions of “consumer product” in the Consumer Product Safety Act, 15 U.S.C. sec. 2052(a)(1), and in the Consumer Product Warranties Act, 15 U.S.C. sec. 2301(1).

There are certain rules relating to the general venue statute which are well settled. The predominant purpose of the statute is to give a person who has been sued the right to defend such suit in the county of his residence, except under well-defined exceptions. To deprive a defendant of this right, the case filed against him must clearly come within one of the exceptions to the statute. Venue may not be sustained by implication. Burtis v. Butler Brothers, 148 Tex. 543, 226 S.W.2d 825, 828 (1950). The defendant’s right to be sued in the county of his residence is a valuable right, and he may not be lightly deprived of it. Gilley v. Morse, 375 S.W.2d 569, 570 (Tex.Civ.App.—Dallas 1964, no writ). The exceptions to this right are to be strictly construed. Mims v. East Texas Production Credit Association, 496 S.W.2d 682, 686 (Tex.Civ.App.—Tyler 1973, writ dism’d). This most valuable right should not be taken away by virtue of technicalities or on a doubtful or strained construction of any exception provision. Barnwell v. Fox & Jacobs Construction Co., 469 S.W.2d 199, 204 (Tex.Civ.App.—Dallas 1971, no writ). It has been said that all doubts must be resolved in favor of the general venue rule giving the defendant the right to be sued in his home county. Briarcliff, Inc. v. Texas Automatic Sprinklers, Inc., 472 S.W.2d 860, 862 (Tex.Civ.App.—Dallas 1971, no writ).

In construing a statutory word or phrase, the court may take into consideration the meaning of the same or similar language used elsewhere in the act or in another act of similar nature. Where the same or a similar term is used in the same connection in different statutes, it will be given the same meaning in one that it has in another, unless there is something to indicate that a different meaning was intended. This rule applies with particular force where the meaning of a word as used in one act is clear or has been judicially determined, and the same word is subsequently used in another act pertaining to the same subject. 53 Tex.Jur.2d sec. 153 at pp. 220-1; Texas Bank & Trust Co. v. Austin, 115 Tex. 201, 280 S.W. 161, 162 (1926); Brown v. Darden, 121 Tex. 495, 50 S.W.2d 261, 263 (1932); Holloway v. Texas Indemnity Insurance Co., 40 S.W.2d 75, 77 (Tex.Comm’n.App.1931); Alexander v. State, 84 Tex.Cr.R. 75, 204 S.W. 644, 647 (1918); Therwhanger v. Therwhanger, 175 S.W.2d 704, 706 (Tex.Civ.App.-Eastland 1943, no writ).

In applying these rules to the instant case, we note that Article 9 (sec. 9.109) of the TBCC defines “consumer goods” as those “used or bought for use primarily for personal, family or household purposes.” This definition is made applicable to Article 2 of that Code by sec. 2.103(c), and appellee herein, although not citing the warranty provisions of the said Article 2, has nevertheless stated a cause of action thereunder. Other Texas statutes whose definitions are of interest and persuasion are the Home Solicitation Transactions Act, Articles 5069 — 13.01 et seq., Tex.Rev.Civ.Stat.Ann., which defines “consumer” as “an individual who seeks or acquires real or personal property, services, money, or credit for personal, family, or household purposes,” and the Debt Collection Act, Articles 5069-11.01 et seq., Tex.Rev.Civ.Stat.Ann., wherein “consumer” is defined as “an individual who owes or allegedly owes a debt created primarily for personal, family, or household purposes.”

We feel that the products involved here do not come within the ambit of the ordinary meaning of the term “consumer goods.” Appellee contends that the definition of the word “consumer” in Ex parte Mehlman, cited in the quotation from John Deere, supra, should control. The court in that case turned to the dictionary for the definition of that word as “ ‘One who uses (economic) goods and so diminishes or destroys their utilities; — opposed to producer,’ ” and for the definition of “consume” as to “use up, expend, waste, devour.” Id. 75 S.W.2d at 690. It argues, therefore, that since its employees combined the mortar and grout compounds to make a new, third substance and used it in placing tile, it “consumed” the products. It is well known, however, that the meaning of words and phrases change with time. The words “consumer” and “goods” had no distinctly expressed meaning in 1934, the year Mehlman was decided, other than their separate dictionary definitions. The word “consumer,” and its compound “consumer goods,” have, since the advent of the phenomenon known as “consumerism” and consumer legislation, acquired a new, distinct, and more narrow connotation in their ordinary meaning. In defining terms, we must not lose sight of the context in which they are used. We feel that their ordinary accepted meaning comes very close to the definitions given by the two federal statutes cited by appellant. “Consumer product,” a term for all practical purposes synonymous with “consumer goods,” is defined there as follows:

“[A]ny tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes . . . .” 15 U.S.C. sec. 2301(1).
“[A]ny article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise; but such term does not include—
“(A) any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer . . . .” 15 U.S.C. sec. 2052(a)(1).

Although the latter quoted statute does not define consumer, it is clear from the Congressional findings and purpose that the statute was meant to apply to persons incapable of anticipating risks and safeguarding themselves from injuries resulting from “consumer products.”

While we do not deem it necessary here to promulgate a comprehensive definition of the term “consumer goods” as it is used in subdivision 31 of Article 1995, nor to adopt for that statute the precise definition of the term from another statute, we agree with appellant that the term does not include the products at issue here.

Even if the John Deere court was correct in stating that the term should be given a broad interpretation and that the TBCC definition was too narrow, the term need not be given so expansive a definition as to encompass a commercial product purchased by a business entity strictly for use by mixing with other materials in commercial construction.

Appellee cites John Deere, supra, Beef Cattle Co. v. N. K. Parrish, Inc., 553 S.W.2d 220 (Tex.Civ.App.—Amarillo 1977, no writ), and Trucker’s Equipment, Inc. v. Sandoval, 569 S.W.2d 518 (Tex.Civ.App.—Corpus Christi 1978, no writ), all of which hold various products to be consumer goods, to-wit: a tractor, cattle feed, and a hydraulic hose and coupling, respectively. We note, however, that all three involve products used for agricultural purposes. In John Deere, the court rejects the TBCC definition of “consumer goods,” i. e., those used for “personal, family or household purposes,” but quotes with approval subdivision 5(b), Article 1995, which, in limiting the term “consumer transaction,” merely adds goods used for “agricultural” purposes to those used for “personal, family or household” purposes. In Beef Cattle Co., involving subdivision 5(b), it was held that milo, purchased for use as cattle feed and clearly an agricultural product, was the subject of a “consumer transaction” as that term was defined in that subdivision, which states “a consumer transaction for goods intended primarily for personal, family, household or agricultural use . . . .” In Sandoval, the court cites John Deere for the proposition that the subdivision 31 term “consumer goods” includes goods used for agricultural purposes and points out that the hydraulic hose and coupling were merely component parts of a cotton shredder and tractor, i. e., products used for agricultural purposes. Thus, these three cases may be viewed as authority for the expansion of the term “consumer goods” to include those used for agricultural, as well as personal, family or household purposes, but not as authority for such a sweeping expansion of that term as would be required to encompass the products with which we are concerned here.

Every word of a statute must be presumed to have been used for a purpose and every word must be given effect if reasonably possible. Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96 (1957); Oliver Bass Lumber Co., Inc. v. Kay and Herring Butane Gas Co., Inc., 524 S.W.2d 600, 603 (Tex.Civ.App.—Tyler 1975, no writ). Appellant argues, with some merit, that in order for the term “consumer goods” to have meaning, there must be some goods that are not consumer goods. If too broad a definition is applied, then all goods may be considered consumer goods because they are virtually all eventually consumed. It should be borne in mind that “consumer goods” is not synonymous with “consumed goods” or “goods to be consumed.”

Moreover, even if we were to adopt the broad definition as appellee argues, we do not agree with appellee’s contention that it is the consumer of these goods. By the definition which it cites and relies upon, it is not the “one who uses [these] (economic) goods and so diminishes or destroys their utilities.” Far from destroying the utility of these goods, appellee is the one who combines them and thereby imparts to them their utility as a product capable of performing their intended function, to-wit: to act as an adhesive to hold together tiles in commercial construction. Indeed, appellee may be more properly viewed as a producer than a consumer. It has taken two separate products and, by its own description, has mixed them together, thus altering their molecular structures and producing a new substance which is like neither of the two products prior to their combination. This is another aspect of the case before us which distinguishes it from Beef Cattle Co. v. N. K. Parrish, Inc., supra, Trucker’s Equipment, Inc. v. Sandoval, supra, and John Deere. It should be borne in mind that these products are specifically designed for use by professional tile layers only and not for use in the home by a do-it-yourself handyman. An additional noteworthy feature of these three cases, which distinguishes them from the instant case, is that they involve goods that are personal property throughout their existence. We are concerned here with two products which are mixed together and become a component part of real property, i. e., a swimming pool.

It would take little expansion of appel-lee’s contention to require that any component part of any product constructed or assembled by an intermediate party be considered consumer goods as to that party. In light of the prevailing meaning of “consumer goods,” we are not inclined to apply so broad an interpretation to the term.

Accordingly, we hold that the mortar and grout compounds involved here, manufactured and sold by appellant and purchased by appellee, are not consumer goods so as to allow appellee, as plaintiff, to maintain venue for this action in the county of its residence pursuant to Article 1995, subdivision 31, supra. Appellant’s point of error two is sustained.

The order of the trial court overruling appellant’s plea of privilege is reversed, and the cause is hereby ordered transferred to Dallas County.


source: Caselaw Access Project

author: SPURLOCK, Justice. HUGHES, Justice,

license: Public Domain

text:
    LIFE INSURANCE COMPANY OF THE SOUTHWEST, Appellant, v. Jacquei Mae OVERSTREET, Appellee.
    No. 18068.
    Court of Civil Appeals of Texas, Fort Worth.
    April 26, 1979.
    Rehearing Denied May 17, 1979.

      Brown, Herman, Scott, Dean & Miles, and J. Shelby Sharpe, Fort Worth, for appellant.
    Herrick & Waltrip, and John W. Herrick, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

A life insurance company appeals the judgment of the trial court against it for the face amount of a policy of life insurance plus attorney’s fees. The question is whether the effective date of the policy is the one stated thereon, or the date when the first year’s premium was paid and coverage became effective. The answer will determine whether the named insured died within the 31 day grace period thus entitling his widow to the policy proceeds as the beneficiary. The trial court found the policy, including the grace period, was in force on the date of the insured’s death.

We affirm.

In 1971 the insurer issued a five year convertible term life insurance policy on the life of Maxie Overstreet. His wife, Jacquei Mae, was the beneficiary. The policy was convertible into an endowment insurance policy. In February 1972 the Overstreets applied for the conversion of the policy to an endowment at age 90 policy. Overstreet issued a check for the premium for the endowment policy on March 6, 1972 but it failed to clear his bank. On March 15, 1972 the insurer issued the endowment policy with March 15, 1972 as the stated effective date. Another check was issued for the premium on April 13, 1972. A representative of the insurer testified that this check was received on April 17 and applied April 18, 1972.

As of April 15, 1973 the Overstreets had not made any premium payment for the second year of the endowment policy. The insurer sent them notices that the premium was past due and finally that the policy had terminated. However, the insurer offered to reinstate the endowment policy if the Overstreets paid the premium which they did on April 25, 1973. The payment on April 25, 1973 was the last payment made on the policy. Overstreet died April 24, 1974.

Mrs. Overstreet demanded payment of the policy proceeds but the insurer refused. The insurer’s position is that the third year premium was due on March 15, 1974, the anniversary of the effective date stated in the policy. Since no premium was paid, it contends the 31 day grace period began to run March 15, 1974 and expired April 15, 1974. Thus the insurer concludes that Ov-erstreet died nine days after the expiration of the grace period and Mrs. Overstreet is not entitled to any benefits. Mrs. Over-street’s position as stated in her pleadings is:

“Notwithstanding the recitation on the face of the involved policy that the effective date of such policy was March 15, 1972, such policy did not, in fact, come into force as a contract of insurance until April 18, 1972, with premiums to be paid on an annual basis. Premiums for the first annual term of this policy were paid on April 18, 1972, and the premiums for the second annual term of this policy were paid on April 29, 1973. Maxie James Overstreet died on or about April 24, 1974, which date was within the second annual time period, including the 31-day grace period that the policy was in force, thereby obligating Defendant to pay the death benefits ... to Plaintiff as provided therein.”

This clearly indicates that Mrs. Over-street believes that the effective date of the policy was April 18, 1972. It also presents her contention that under the terms of the contract she was entitled to a full year’s coverage for the premium paid. The trial court after a non jury trial found as follows:

“1. The involved policy became in force on April 18, 1972, on an annual premium basis.
“2. Annual premiums subsequent to the initial annual premium were due on the 18th day of April of each year the policy was to be continued in force.
“3. The life insurance policy in question was in full force and effect on April 24, 1974, the date of the death of Maxie Overstreet, the insured.”

The insurer attacks these findings claiming that there is no evidence in the record to support them. It contends the evidence established as a matter of law that the policy had expired prior to Overstreet’s death, that March 15, 1972 was the effective date of the policy, and that all annual premiums were due on March 15 for each year following 1972. In order to resolve this dispute it is necessary to review the insurance contract and other evidence in detail.

The policy provides that the application and the policy constitute the entire contract between the parties. Paragraph 3 of the application states:

“3. Any insurance approved by the Company for issuance as a result of this application, unless effective prior to policy delivery in the manner specified in the receipt attached hereto, shall be considered in force only when a policy shall have been issued by the Company and said policy manually received and accepted by the Applicant and the full first premium paid thereon, . . . .”

A thorough review of the record fails to disclose the attachment of any receipt referred to in paragraph 3 nor any evidence thereof. Therefore we conclude that the policy became effective when the requirements of paragraph 3 were fulfilled. Further, a representative of the insurer testified that the policy did not become effective until April 18,1972 when the first year premium was paid. Therefore, we conclude that there is evidence in the record to support the finding that the policy went into effect April 18, 1972 by the insurer’s own construction.

The policy also provides:

“The consideration for this Policy is the application therefor and the payment of premiums as herein provided. The first premium ... is payable on the Effective Date and subsequent premiums are payable in periodic instalments thereafter until premiums have been paid for the period specified in the Insurance Schedule or until the prior death of the Insured. .
“The payment of an annual, . premium will maintain this Policy in force for one year, . . . . Such periods will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due. Failure to pay any premium when due or within the period of grace provided shall cause this Policy immediately to become void except as otherwise provided herein.”

Mrs. Overstreet contends that because the policy did not become effective until the first premium was paid on April 18, 1972 and the policy provides that premium payment will keep the policy in force for one year, April 18, 1972 is the effective date of the policy for all purposes. The insurer claims that the effective date is March 15, 1972 as stated in the policy. It contends that a stated effective date in a policy is different and distinct from the date coverage under the policy became effective. It claims that as a matter of law the effective date is as stated in the policy.

As authority for its position the insurer cites Great Southern Life Ins. Co. v. Peddy, 139 Tex. 245, 162 S.W.2d 652 (1942). Peddy holds that where a life insurance policy expressly specifies the date from which the policy premium periods are to be computed and makes that date the due date for premiums, that date will control over the date the policy is delivered and first premium paid. This stated date will control regardless of a provision in the policy that the insurance will not be effective until the policy is issued, delivered, and the first premium paid. The decision recognizes the need for a certain date upon which the parties can rely in computing the various time periods under the policy.

The supreme court’s opinion in Peddy quoted from the policy in that case at p. 653 as follows:

“ ‘This contract is made in consideration of the payment of the first annual premium (or installment thereof) of (here is stipulated the amount of the annual premium) and the payment of a like premium on the twenty-fifth day of November in every year during the continuance of this contract until the death of the insured.’ ” (Emphasis ours.)

After a careful study of the entire policy in this case we do not find the express specification of a due date for premiums as in Peddy. The policy here states that payment of an annual premium will keep the coverage in force for one year and that subsequent premiums are due on the same day of the month as the first premium which is payable on the effective date of the policy. Thus the question is whether the parties intended for the effective date of the policy to be the date the policy actually became effective by delivery and premium payment or the stated effective date.

The insurer contends that an effective date of a policy is a date separate and distinct from the date coverage under the policy went in force. As authority for this proposition the insurer cites Peddy and Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660 (1949). It points out that the effective date is a date from which various calculations under the policy are made, while the date the policy becomes in force is the date coverage under the policy becomes effective. The insurer further notes that the supreme court has approved insurance contracts in which coverage becomes effective after the effective date, resulting in the insured paying an annual premium for less than a full year’s coverage. Vela, supra.

While we recognize that insurance contracts may contain such provisions, the insurer would read Peddy and Vela as establishing as a matter of law that the effective date of a policy is always different from the date coverage became effective. We do not agree. The policy in Vela at p. 662 provided:

“ ‘(3) that there shall be no liability hereunder until a policy shall be issued and manually delivered to me and accepted by me during my lifetime and continued good health and the first premium thereon shall be actually paid to and accepted by the Company or by its duly authorized agent, but when so delivered and paid for, the policy shall be in force from its effective date as shown on the face thereof, and the first policy year shall begin with that date, * * *.’” (Emphasis ours.)

The policy in Vela also expressly provided that its effective date was September 18, 1942 and that premiums were payable quarterly on the 18th day of each September, December, March, and June thereafter until the death of the insured. The policy as drafted in our case fails to clearly relate the date coverage became effective back or forward to the effective date stated in the policy and fails to expressly specify a due date for premiums. The policy states that payment of premium will keep the coverage in force for one year. Therefore, because of the manner in which the policy was drafted, the policy is distinguished from those in Peddy and Vela. In our opinion it has not been established as a matter of law that March 15, 1972 was the effective date. We find that the pleadings and evidence presented the trial court with a fact question of whether March 15 or April 18, 1972 was intended to be the date from which premium periods would be calculated. We find that the pleadings were sufficient to support the testimony of the insurer’s representative concerning the effective date of the policy. In any event the testimony was admitted without objection and therefore Tex.R.Civ.P. 67 applies.

The insurer contends there is no evidence to support the finding that premiums were due on April 18th for each year of the policy and that it was established as a matter of law that premiums were due each March 15th. Thus if there is any evidence more than a scintilla which, with the inferences that may be properly drawn therefrom, supports the finding, it must be sustained. After thoroughly reviewing the record we conclude there is some evidence which supports the finding.

The manager of the insurer’s “policy owner service department” testified that her duties included servicing contracts which became effective after the payment of the first premium. She testified that had Overstreet died April 15,1972 no benefits would have been paid because the policy was not in force. Further she indicated that the payment of an annual premium would keep the policy in force for one year. We find that this along with other evidence supports the finding by the insurer’s own construction. We note that the insurer has not complained that the finding is against the great weight and preponderance of the evidence. Thus we considered only the evidence which supports the finding in reaching our conclusion. Our decision is guided by the well established rule that where as here the terms of an insurance policy are capable of more than one construction, the courts are to adopt the construction most favorable to the insured. 32 Tex.Jur.2d Insurance § 60 (1962). Here paragraph 3 of the application and the testimony of the insurer’s representative established that the policy would not become effective until the first premium was paid and that payment of the annual premium would keep the policy in force for one year. Without a provision expressly specifying the due date for premiums or clearly relating the date coverage became effective back or forward to the stated effective date, as in Peddy and Vela, there is a conflict with the provisions of the policy stating an effective date and that the first premium is payable on the effective date.

In our opinion the trial court properly resolved the conflict in favor of coverage under the policy and against the insurer who drafted the contract. We hold that where the stated effective date of a policy is intended to be different from the date on which coverage became effective, it must be clearly stated in the policy. The insured is entitled to be clearly informed whether or not an annual premium will keep the policy in force for a full year. We do not find in this policy the clear expression found in the policies in Peddy and Vela. We conclude the trial court properly rendered judgment for the beneficiary under the policy.

By its final two points of error the insurer complains of the award of attorney’s fees the trial court made in its judgment. The only error alleged is based on the position that Mrs. Overstreet is not entitled to recover because the policy had terminated. Having decided that she is entitled to recover we overrule these points.

Although we may not have separately discussed each of appellant’s points of error, each point of error presented in complaint of the trial court’s judgment has been severally considered. They are all overruled.

The judgment of the trial court is affirmed.

HUGHES, J., dissents.

HUGHES, Justice,

dissenting.

I respectfully dissent.

The basis of the majority’s opinion is that this policy is distinguishable from those in Peddy and Vela because it is not clearly provided that the stated effective date was to control over the date on which coverage became effective for the calculation of premium due dates, grace periods, and the like under the policy. I cannot agree for two reasons.

First, in my opinion, as a matter of law where an effective date is expressly stated in a policy it controls. Effective dates are necessary for the many calculations which a policy of insurance requires. Further, expressly specifying an effective date is intended to benefit the insured by informing that person of the exact dates upon which the premium obligations fall. While it may be possible for the parties to an insurance contract to agree differently, I conclude that, without proving a different agreement, or where the contract is silent, the stated effective date controls over the date coverage became effective, should the dates be different.

Second, after reviewing the record I conclude that the evidence established as a matter of law that premiums were due each March 15th during the life of the policy. While I agree with the majority that the policy in this case could and should have been more clearly drafted, only one reasonable conclusion can result from an examination of the terms of the policy and other evidence. That conclusion is that the first and subsequent premiums were due March 15th.

The policy stated that the first premium was payable on the effective date. The effective date stated was March 15, 1972. It also provided that payment of an annual premium would keep the policy in force for one year. It is this language which the majority finds conflicting. However, the policy goes on to provide as follows:

“Such periods (periods of coverage for premium paid, here one year) will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due.”

While I agree that this language is not as clear as the policies in Peddy and Vela, I cannot agree that it was shown to be conflicting. Rather, the evidence established as a matter of law that March 15th was the due date for the annual premiums under the policy.

I would, therefore, reverse the judgment of the trial court and render judgment that appellee take nothing.


author: LUKOWSKY, Justice.

text:
    BOARD OF ADJUSTMENTS OF the CITY OF RICHMOND, Kentucky, et al., Movants, v. Charles Bracelen FLOOD et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Rehearing Denied June 12, 1979.
    Foster Ockerman, Martin, Ockerman & Brabant, Lexington, John D. Sword, Sword & Floyd, Richmond, for movants.
    John F. Lackey, Lackey & Lackey, Richmond, for respondents.
   LUKOWSKY, Justice.

The issue presented for decision is whether the circuit court has jurisdiction of an appeal from a final action of the board of adjustments if the planning commission was not made a party to the appeal within thirty days of the final action. We answer the question in the negative.

Exxon and Cracker Barrel filed an application before the Board of Adjustments of the City of Richmond seeking a height variance for a sign. The application was heard by the Board on June 17, 1976. The application was granted and the Floods and the Burnams appealed to the Madison Circuit Court on July 14, 1976 naming as appellees the Board, Exxon and Cracker Barrel. On July 30, 1976, Exxon and Cracker Barrel filed a motion to dismiss the appeal to the circuit court asserting the failure to include the Richmond, Kentucky, Planning and Zoning Commission as a party.

On August 24, 1976, sixty-eight days after the final action of the Board on June 17, the Floods and the Burnams joined the Commission as a party and had summons issued for it. The Madison Circuit Court held that the failure to make the Commission a party within thirty days was a fatal jurisdictional fault and dismissed the appeal. The Court of Appeals reversed with one member of the panel dissenting.

There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corporation, Ky., 361 S.W.2d 300 (1962); Roberts v. Watts, Ky., 258 S.W.2d 513 (1953).

KRS 100.347 provides:

“(1) Any person or entity claiming to be injured or aggrieved by any final action of the planning commission or board of adjustments may appeal from the action to the circuit court of the county in which the land lies. Such appeal shall be taken within thirty (30) days after the final action of the commission or board. Final action shall not include commission’s recommendations made to other governmental bodies.
(2) All appeals shall be taken in the appropriate circuit court within thirty (30) days after the action or decision of the planning commission or board of adjustments and all decisions which have not been appealed within thirty (30) days shall become final. After the appeal is taken the procedure shall be governed by the Rules of Civil Procedure. When an appeal has been filed, the clerk of the circuit court shall issue a summons to all parties, including the planning commission in all cases, and shall cause it to be delivered for service as in any other law action.” (Emphasis added)

It is as plain as a billboard that the legislature has granted to persons aggrieved by the final action of the board of adjustments the grace of appeal to the circuit court provided they perfect that appeal by filing it in the circuit court, including the planning commission as a party, within thirty days. Here the appeal was filed within the thirty-day limitation, but no effort was made to include the Commission as a party until sixty-eight days after the final action of the Board. Consequently, one of the conditions precedent to the exercise of judicial power by the circuit court was not met and it was required to dismiss the appeal for want of jurisdiction. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corporation, supra. Cf. City of Danville v. Wilson, Ky., 395 S.W.2d 583 (1965); Howell v. Haney, Ky., 330 S.W.2d 941 (1960).

The majority of the Court of Appeals and counsel for the respondents myopically view the issue here as one of indispensability of parties under CR 19.01. Such is not the case. The civil rules do not apply in this type of litigation until after the appeal has been perfected. CR 1; KRS 100.347(2). The lens which causes the myopia is supplied by headnote 7 to our opinion in Gentry v. Ressnier, Ky., 437 S.W.2d 756 (1969), which gratuitously extends our limited holding that the commission is not always an indispensible party to an appeal from the circuit court to the Court of Appeals to include appeals from the board to the circuit court.

We hasten to remind both bench and bar that headnotes are not the work of the court and do not state its decision. They are simply the work of commercial publishers and give their understanding of the decision, which may or may not be correct. They are prepared for the convenience of the profession so that its members may find potentially applicable opinions through the digest system. Each member of the profession is still required to determine the meaning of each opinion for himself. Ohio Valley Fire & Marine Ins. Co.’s Receiver v. Skaggs, 216 Ky. 535, 540, 287 S.W. 969, 971 (1926); United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499, 505 (1906).

The decision of the Court of Appeals is reversed and the judgment of the Madison Circuit Court is affirmed.

All concur.


author: REED, Justice.

text:
    CITY OF OWENSBORO, Kentucky, and the Owensboro Industrial Development Authority, Movants, v. Hubert McCORMICK, a Citizen, Resident and Taxpayer of the City of Owensboro, Kentucky, Individually and as a Representative of all Citizens, Residents and Taxpayers of said City, Respondent.
    Supreme Court of Kentucky.
    May 1, 1979.

      Hugh D. Moore, Moore, Moore and Hag-er, Owensboro, for movants.
    B. C. Green, Green, Connor & Carroll, Owensboro, for respondent.
   REED, Justice.

In this declaratory judgment action, the constitutionality of a provision in the Kentucky Local Industrial Authority Act is in issue. The circuit court held the questioned provision that authorized the city to acquire real property by the exercise of eminent domain for the benefit of the authority was constitutionally valid. Declaring that the Act was unconstitutional to the extent that it granted a city or other governmental unit the unconditional right to condemn private property which was to be conveyed by the local industrial development authority for private development for industrial or commercial purposes, the Court of Appeals reversed on the appeal by the Respondent taxpayers. We granted the city’s and the authority’s motion for discretionary review. We now affirm the decision of the Court of Appeals.

I

The carefully considered opinion of the Court of Appeals sets out the factual picture in an accurate and objective manner:

“The purpose of the act is to aid in the development of land for industrial and commercial purposes in Kentucky, including the development of industrial sites, parks and subdivisions. For that purpose, a city, a county or any combination of cities and counties may establish a nonprofit industrial development authority which constitutes a body politic. Such local authorities are authorized to acquire real estate ‘necessary or suitable’ for establishing industrial sites, parks, or subdivisions. The authority is also expressly authorized to sell any land owned by the authority to any private industry for the purpose of constructing or operating any industrial or commercial facility. As a condition to a sale to private industry, the land must be reconveyed to the authority free and clear of any liens and encumbrances if no actual construction of an industrial facility is commenced within two years.
“Upon the adoption of the authority of a resolution reciting that property is needed for industrial sites, parks and subdivisions, the city or other governmental unit may institute condemnation proceedings under the eminent domain act to condemn the property for the use and benefit of the authority. The act placed few limitations upon this exercise of the power of eminent domain for the benefit of a local authority. The city or other governmental unit must give public notice stating the ‘specific purpose’ for which the property is being condemned. If the property is not developed within a period of five years pursuant to the purpose stated, the owners of the property condemned have the right to repurchase the property at the price paid.
“The act contains a declaration that all lands so acquired by a local authority are acquired for a public purpose. KRS 152.-920 provides:
‘The acquisition of any lands for the purpose of developing industrial sites, parks and subdivisions is hereby declared to be a public and governmental function, exercised for a public purpose, and a matter of public necessity, and such lands and other property, easements and privileges acquired in the manner and for the purposes enumerated in ■ KRS 152.810 to 152.930 shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.’
“Under KRS 152.810(2), ‘Industrial sites, parks and subdivisions’ are defined as meaning ‘land suitable for one or more industries or commercial establishments.’ In effect, the legislature has declared that the acquisition of any land for the development of a single industrial or commercial establishment constitutes a public purpose. Under the act, the city would have the power to condemn private property for the benefit of the authority so that the authority could in turn convey that land to a private organization for development as an industrial or commercial facility.”

II

The Kentucky Constitution, particularly Sections 13 and 242, has been interpreted repeatedly to prohibit the taking of private property for public use without compensation, and this prohibition has been consistently construed to forbid the taking of private property for private uses. 29A C.J.S. Eminent Domain § 29, at 251 (1965). Both of these sections of our Constitution carefully use the term “public use” as contrasted with Section 171 of the same Constitution that commands taxes be levied and collected for “public purposes” only.

Our inquiry must be directed to whether the Kentucky Local Industrial Development Act constitutes “public use” of the lands of private citizens whose property is condemned by its authority. The Respondents argue that it manifestly does not. The city and the Authority insist that we should regard “public benefit” to be equivalent to “public use.” They also urge that we adopt the expansive definition of “public purpose” used in our cases concerning the issuance of revenue bonds by a city or county for the acquisition of industrial property or where public funds are expended for the purpose of promoting industrial development by attracting new industry to all parts of the state as compliance with the constitutional requirement of “public use” in the eminent domain context.

Ill

The parties have not cited nor does our research reveal a single Kentucky case which declares that either “public benefit” or “public purpose” is equivalent to “public use” in the eminent domain sense.

It would extend this opinion beyond tolerable limits if we attempted to analyze the many Kentucky cases which have decided in particular instances whether the condemnation sought was primarily for a public or a private use. The language in these various opinions cannot always be harmonized and the court has been more indulgent in finding the presence of public use in some instances than in others. The court has always, however, consistently recognized the necessity of protecting the right of a citizen to be secure in his ownership of property. Governmental compulsion to surrender his property must always be accompanied by payment of just compensation and be effected for a public use.

Naked and unconditional governmental power to compel a citizen to surrender his productive and attractive property to another citizen who will use it predominantly for his own private profit just because such alternative private use is thought to be preferable in the subjective notion of governmental authorities is repugnant to our constitutional protections whether they be cast in the fundamental fairness component of due process or in the prohibition against the exercise of arbitrary power. Ky.Const. Sec. 2.

In 1907, this court speaking through Judge John D. Carroll in Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 31 Ky.L.Rep. 1075, 104 S.W. 762, 765, 16 L.R.A. (N.S.) 479 (1907) stated:

“If public use was construed to mean that the public would be benefited in the sense that the enterprise or improvement for the use of which the property was taken might contribute to the comfort or convenience of the public, or a portion thereof, or be esteemed necessary for their enjoyment, there would be absolutely no limit on the right to take private property. It would not be difficult for any person to show that a factory or hotel or other like improvement he contemplated erecting or establishing would result in benefit to the public, and under this rule the property of the citizen would never be safe from invasion.”

This same view is approved, either expressly or impliedly, in Sturgill v. Commonwealth, Department of Highways, Ky., 384 S.W.2d 89 (1964); Hudgens v. Register, Ky., 285 S.W.2d 504 (1955); and Robinson v. Swope, 75 Ky. (12 Bush) 21 (1876).

The strictness of this view was somewhat relaxed in Carter v. Griffith, 179 Ky. 164, 200 S.W. 369 (1918). There the attack on the condemnation was that the drainage ditch for which the taking was effected did not qualify as a “public use” because it would benefit the private property to be drained. This court rejected the attack and stated:

“[T]he reclamation of low or swamp lands for agricultural purposes is a public use not only because it enables the land so drained to be used by a portion of the public, but contributes to the public welfare by adding to the natural resources of the state . . . .”

200 S.W. at 370. In the present case, the Court of Appeals aptly observed that the land involved in Carter had no agricultural or other economic use unless reclaimed by the use of drainage ditches, but that the Act now before the court would authorize the city to condemn productive agricultural property for the sole purpose of private industrial or commercial development. The Carter case is analogous to our cases involving slum clearance and urban blight where we have held that the elimination of blight in defined areas pursuant to specific legislative findings satisfied the “public use” requirement. E. g. Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651 (1937), and Miller v. City of Louisville, Ky., 321 S.W.2d 237 (1959).

The Kentucky Local Industrial Development Authority Act makes no findings nor does it recite goals nor does it express guidelines. It merely provides that the acquisition of “any lands” for the purpose of developing an industrial or commercial establishment is a proper subject for the exercise of the power of eminent domain. As the Court of Appeals succinctly observed:

“It matters not that the land being condemned is productive and otherwise beneficial to the community. If a citizen’s land is needed for industrial or commercial development, then it may be condemned under the act.”

IV

The movants rely on some of our cases upholding the validity of revenue bond issues by a city or county as a means of acquiring industrial property which is then leased to private industry. See Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80 (1950), and Dyche v. City of London, Ky., 288 S.W.2d 648 (1956). In Dyche the city established by clear and convincing proof that widespread unemployment existed in the city and its surrounding area. Under the act presently before us the conditions of unemployment are wholly irrelevant.

The city also relies upon Industrial Development Authority v. Eastern Kentucky Regional Planning Commission, Ky., 332 S.W.2d 274 (1960). In that case we upheld the expenditure of public funds for the purpose of promoting industrial development by attracting new industry to all parts of the state. We stated that the elimination of unemployment and the development of the natural and man-made resources of the state constituted a “public purpose” within the meaning of section 171 of our Constitution.

The trial judge concluded that the term “public purpose” in section 171 of the Kentucky Constitution which addresses itself to the taxing power and the term “public use” used in both sections 13 and 242 of the same document are synonymous. Hence, he reasoned that private property can be condemned for any purpose for which public funds might be expended. The Court of Appeals found that conclusion represented “an alarming concept.” We agree. The opportunity for tyranny, particularly by the self righteous, exists in condemnation of private property to a vastly greater degree than in the levying of taxes and the expenditure of public funds. The popular political response to abuse of the taxing and spending power is generally swifter and more effective than is true where the citizen’s private property is effectively and finally taken from him. In our view, the constitutional provisions involved clearly require that finding of “public purpose” does not satisfy the requirement of a finding of “public use.” We concur in the Court of Appeal’s observation that “government cannot use the power of eminent domain in order to act as land broker for private interests.”

The city’s reliance on Craddock v. University of Louisville, Ky., 303 S.W.2d 548 (1957) is misplaced. The education of medical students attending a municipal university clearly constituted a public use of the facility acquired by condemnation.

The parties have cited foreign authorities expressing varying views of the issue decided. We have considered them. We have found helpful these comments made in American Jurisprudence 2d:

“Generally, it may be taken as established law that the incidental benefit accruing to the public from the establishment of a large factory, mill, department store, or other industrial or commercial enterprise, is not a valid ground for ranking such an enterprise as a public use and entrusting it with the power to acquire a suitable site by eminent domain. Private enterprises that give employment to many and produce various kinds of commodities for the use of the people are not necessarily public uses. Every legitimate business, to a greater or lesser extent, indirectly benefits the public by benefiting the people who constitute the state, but that fact does not make such enterprises public businesses. . . . The discrimination by the state between different classes of occupations and the favoring of one at the expense of the rest, whether that one is farming, banking, merchandising, milling, printing, or mining, is not legitimate legislation and is an invasion of that equality of right and privilege which is a maxim of every free government. When the door is once opened to it, there is no limit that can be drawn. Every honest employment is beneficial to the public and deserves encouragement, but it is not the function of the state to make discrimination in favor of one employment against another, particularly through eminent domain, by which private property is taken.”

V

We agree with the basic holding of the Court of Appeals, which is that when the property being condemned will not be developed for use by the public, exercise of the power of eminent domain is not permissible under sections 13 and 242 of the Constitution of Kentucky unless the property lies within an area of land which is blighted as defined by statute. The elimination of blight by developing the property according to a proper plan constitutes a “public use” of the property. Miller v. City of Louisville, supra.

We hold as did the Court of Appeals that the Kentucky Local Industrial Authority Act is unconstitutional to the extent that it grants a city or other governmental unit the unconditional right to condemn private property which is to be conveyed by the local industrial development authority for private development for industrial or commercial purposes. In the language used by the Court of Appeals, “No ‘public use’ is involved where the land of A is condemned merely to enable B to build a factory or C to construct a shopping center.”

The Court of Appeals also held that the provisions of the act relating to the power of condemnation as a means of furthering private development are severable from the remainder of the act. Consequently, the remaining portions of the act are not affected by the decision. We concur in this holding. See KRS 446.090.

The decision of the Court of Appeals reversing the judgment of the Daviess Circuit Court is affirmed. The cause is remanded to the circuit court with direction to enter a new judgment in conformity with this opinion.

All concur.

      . KRS 152.810 to 152.930.

      . Unpublished opinion of Court of Appeals written by Judge Park in which all members of the three judge panel concurred, (footnotes omitted) (emphasis in original).

      . For a collection of Kentucky cases adhering to this construction see n.99.

      . 26 Am.Jur.2d Eminent Domain Sec. 34, at 684-85 (1966) (footnotes omitted).


author: STEPHENSON, Justice.

text:
    Bobby BRUCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 1, 1979.
    Jack Emory Farley, Public Advocate, Rodney McDaniel, Asst. Public Advocate, Frankfort, for appellant.

      Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Bobby Bruce, an inmate of Kentucky State Penitentiary, was indicted for and convicted of the offense of attempted kidnapping of David Lear, an officer of the penitentiary staff. Bruce was sentenced to twenty years in the penitentiary in accordance with the jury verdict. The twenty-year sentence was adjudged to run consecutively to the sentence being served by Bruce.

Our disposition of this case does not require a detailed recitation of the facts. We have reviewed the record and considered the many assertions of error and are of the opinion there is no showing of prejudicial error in any of Bruce’s arguments with the exception of the assertion of error in the instructions given by the trial court.

The penalty portion of the trial court’s instructions provided that if the jury found Bruce’s guilty of attempted kidnapping, the jury “will fix his punishment from 20 years to life in the penitentiary, in your discretion.” We observe that this curious instruction provided the penalty for the commission of a Class A felony, KRS 532.060(2)(a).

In the kidnapping statute, KRS 509.-040(2) provides that “[kjidnapping is a capital offense unless the defendant voluntarily releases the victim alive, substantially unharmed, and in a safe place prior to trial, in which case it is a Class B felony.” In the criminal attempt statute, KRS 506.010(4)(b) provides: “A criminal attempt is a Class C felony when the crime attempted is a Class B felony.” KRS 532.060(2)(c) provides the authorized terms of imprisonment for “a Class C felony, not less than five (5) years nor more than ten (10) years.” It is apparent that the indictment charged an attempt to commit a Class B felony, and the jury should have been instructed to fix the penalty at not less than five nor more than ten years’ imprisonment in accordance with KRS 532.060(2)(c).

The record does not reveal to us the reasons for the giving of the improper penalty instruction. At the close of all the evidence when the instructions were being considered by the trial court, the Commonwealth’s attorney moved to amend the charge “from attempted capital kidnapping to attempted kidnapping, noncapital kidnapping, which would reduce the penalty from 20 years to life to 5 to 10 years.” The Commonwealth’s attorney then tendered instructions with a penalty range from five to a maximum of ten years. Trial counsel for Bruce objected to the motion on the ground that the reduced penalty range changed the Commonwealth’s theory of the case and, in effect, changed the charge in the indictment. The trial court then denied the Commonwealth’s motion and proceeded to give an erroneous penalty instruction.

We cannot understand why the trial court or counsel would have the idea that the indictment charged anything other than an attempt to commit a Class B felony. The indictment read that the defendant (Bruce) “did attempt to unlawfully restrain David Lear with intent to accomplish or advance the commission of a felony, or to inflict injury or to terrorize David Lear (Class A Felony).” We cannot visualize any circumstance that would constitute an attempt to commit a capital offense of kidnapping, or attempt to commit kidnapping characterized as a Class A felony as in this indictment, which is the election made in capital cases as provided in KRS 532.030.

In any event, the penalty instruction did not conform to any of the provisions of the criminal attempt statute, KRS 506.010, and authorized a penalty outside the penal code.

The Commonwealth argues CR 51(3) to the effect that Bruce cannot assign as error the giving of the instruction for the reason that he did not fairly present his position before the instruction was given, or that Bruce “invited the error” by objecting to the proper instruction tendered by the Commonwealth. This is a novel situation, and we approach it on the theory that fundamentally CR 51(3) stands for the proposition that the trial court should have any defects in the proposed instructions called to his attention so that he is afforded the opportunity to give the correct instructions. We are of the opinion that under the circumstances of this case, the proper instruction to the jury was called to the attention of the trial court so as to preserve Bruce’s argument for appellate review. Ordinarily if a defendant invites error we would not consider it. Here, however, the error was of such magnitude that we choose not to apply the invited error rule.

We are of the opinion that the assertions of trial error made by Bruce are without merit and that the conviction should stand. We are of the further opinion that the erroneous penalty instruction requires a new trial on the penalty phase only.

The judgment of the trial court is affirmed as to the conviction for attempted kidnapping, and the portion of the judgment fixing the penalty is reversed with directions that Bruce be given a new trial only for the purpose of the jury fixing an authorized punishment.

All concur.


author: CLAYTON, Justice. STEPHENSON, Justice,

text:
    Glenn JACKSON, Movant, v. GENERAL REFRACTORIES COMPANY, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen’s Compensation Board of Kentucky, Respondents.
    Supreme Court of Kentucky.
    May 1, 1979.
    Alvin B. Trigg, Wallace, Turner & Trigg, Lexington, for movant.
    Howard VanAntwerp, III, Robert L. Templeton, VanAntwerp, Hughes, Monge & Jones, Ashland, for respondent General Refractories Co.
    John Riehl, Jr., Denis S. Kline, Dept, of Labor, Louisville, for respondent James R. Yocom, Commissioner of Labor and Custodian of the Special Fund.
   CLAYTON, Justice.

Glenn Jackson, movant here, was awarded workmen’s compensation benefits for permanent total disability caused by silicosis incurred during his 27-year term of employment with General Refractories Company. Upon the advice of his doctor, Jackson voluntarily ended his employment as a brickworker on February 2, 1972, because he could no longer tolerate the dust to which he was exposed at work. More than three years passed before Jackson was informed by Dr. Richard P. O’Neill on May 14,1975, that he had contracted the occupational disease of silicosis. Jackson then notified his former employer of his claim for workmen’s compensation on June 9, 1975.

The only issue before this court is whether General Refractories received timely notice of movant’s claim. The applicable statute, KRS 342.316(2)(a) provided:

[N]otice of claim shall be given to the employer as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.

The Workmen’s Compensation Board found that movant did not know he had the disease prior to Dr. O’Neill’s diagnosis and concluded that notice within one month of the diagnosis was timely. The Carter Circuit Court affirmed. The Court of Appeals reversed, holding that notice was not timely given since movant had experienced distinct manifestations of the occupational disease in 1972. Discretionary review was granted to determine whether the Court of Appeals erred in substituting its opinion for that of the Board.

This court has consistently held that a finding of the Board on a question of fact cannot be disturbed on appeal if there is any substantial evidence to support it. Yocom v. Harvey, Ky., 578 S.W.2d 52 (1979); Pruitt v. Bugg Bros., Ky., 547 S.W.2d 123 (1977). Notice is an issue of fact for Board determination. Yocum v. Harrison, Ky., 517 S.W.2d 231 (1975); Blue Diamond Coal Co. v. Terry, Ky., 416 S.W.2d 350 (1967). When one of two reasonable inferences may be drawn from the evidence, the finders of fact may choose. Blair Fork Coal Co. v. Blankenship, Ky., 416 S.W.2d 716, 718 (1967). While as triers of fact the members of this court may very well have made a finding different from that of the Board, we are unable to say that the Board could not reasonably infer from the evidence that movant was not aware that he had an occupational disease until Dr. O’Neill’s diagnosis. The finding of the Board that notice was timely given was supported by substantial evidence.

The decision of the Court of Appeals is reversed. The judgment of the Carter Circuit Court and the award of the Workmen’s Compensation Board are affirmed.

All concur except STEPHENSON, J., who dissents.

STEPHENSON, Justice,

dissenting.

I have an uncomfortable feeling when I see this court render opinions which, in effect, repeal acts of the General Assembly. The majority opinion is another of those opinions which has eroded and finally disposed of the “distinct manifestation” clause of KRS 342.316(2)(a). According to the present state of case law, the “distinct manifestation” clause can never come into effect. The claimant must know. Being of the opinion that acts of the General Assembly should be given some effect, I dissent from the majority opinion.