author: CORNELIUS, Justice.

text:
    Edward NASH, Appellant, v. BANKERS COMMERCIAL LIFE INSURANCE COMPANY et al., Appellees.
    No. 8426.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 8, 1977.

      William D. Cox, Jr., Bader, Wilson, Me-naker, Cox & Branson, Dallas, for appellant.
    G. H. Kelsoe, Jr., Kelsoe, McDonald & Ayres, Dallas, for appellee.
   CORNELIUS, Justice.

Edward Nash appeals from an order which overruled his plea of privilege to be sued in the county of his residence.

Bankers Commercial Life Insurance Company sued Nash, E. V. Scott, D. G. Council, Harold Hollingsworth and Robert Cates alleging that Scott had previously embezzled funds from the company and that he had enlisted the aid of the other defendants in defrauding it of restitution which he had agreed to make. Of all the named defendants, only Scott was a resident of Dallas County where suit was filed. Each of the defendants filed a plea of privilege to be sued in the county of his residence. The pleas were overruled and no appeal was taken. Thereafter, Bankers Commercial Life filed an amended petition which included allegations that Nash and Scott had perpetrated a specific fraud upon it by means of false representations respecting an alleged second lien on some of Scott’s real estate. It was alleged that Nash and Scott created a fictitious lien in favor of The Farmers & Merchants National Bank of Kaufman against Scott’s property, and then by false representations induced Bankers Commercial Life to pay $22,363.41 in order to free Scott’s property (which Bankers Commercial Life was acquiring in partial restitution for Scott’s embezzlement) from such lien. When the amended petition was filed, Nash filed another plea of privilege. Bankers Commercial Life controverted the plea, contending that venue was maintainable against Nash in Dallas County under Subdivisions 7 and 4 of Tex. Rev.Civ.Stat.Ann. art. 1995 (1964). The plea of privilege was again overruled. In this appeal Nash contends there was no evidence or insufficient evidence to support the trial court’s implied finding of the facts necessary to sustain venue in Dallas County under Subdivisions 7 and 4 of Tex.Rev.Civ. Stat.Ann. art. 1995 (1964).

Subdivision 7 of Article 1995, Tex.Rev. Civ.Stat.Ann., provides as follows:

“Fraud and defalcation. — In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.”

To sustain venue under the quoted provision, the plaintiff in a fraud ease must establish by a preponderance of the evidence (1) all the elements of an actionable fraud, including the fact that he sustained some damage; (2) that the fraud was committed by the defendant or one for whose acts he is legally responsible; and, (3) that the fraud occurred in the county where venue is sought to be maintained. 1 McDonald’s, Texas Civil Practice, Sec. 4.13, pp. 465, 466. To establish the elements of a ease of actionable fraud based upon misrepresentation, it must be shown that (1) a material representation was made, (2) it was false at the time it was made, (3) it was made with intent to induce the plaintiff to do or refrain from doing some act, and (4) it was relied upon by the plaintiff to his damage. 25 Tex.Jur.2d, Fraud and Deceit, Sec. 13, p. 627.

At the hearing of the plea of privilege, John Abnor, the sole shareholder and chief executive officer of Bankers Commercial Life, testified in effect that Nash, who was president of The Farmers & Merchants Bank of Kaufman, represented to him in Kaufman and later in Dallas that Scott owed that bank $22,363:41 which was secured by a second lien on some of Scott’s property which Bankers Commercial Life was acquiring; that the bank was going to foreclose the lien if it was not paid; that the representations were false, as later admitted to him by Nash himself; that, acting for Bankers Commercial Life, he relied upon the representations to the point of believing that the loan had to be paid off to prevent foreclosure and in order to clear the property; and that in reliance thereon, Bankers Commercial Life, at a meeting in Dallas, paid $22,363.41 to discharge the nonexistent debt, to its damage in that amount. That testimony, if believed by the trial court, was sufficient to establish all the elements of a case of actionable fraud. As the fraudulent representations were made to appellee by Nash in Dallas County and acted upon by appellee there, venue was maintainable in Dallas County under Subdivision 7, even though the preparation of the fraudulent papers or other acts in furtherance of the fraud occurred in Kaufman County. Mack Trucks, Inc. v. Hardin, 355 S.W.2d 795 (Tex.Civ.App. Waco 1962, no writ); Trinity Universal Ins. Co. v. Soliz, 251 S.W.2d 904 (Tex.Civ.App. San Antonio 1952, mand. overr.); Thomas v. Haller, 214 S.W.2d 683 (Tex.Civ.App. Waco 1948, no writ).

In view of the conclusions reached, it is not necessary that we discuss the applicability of Subdivision 4 or the merits of appel-lee’s motion to dismiss.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    Lorene ROBINSON et vir., Robert E. Robinson, Appellants, v. BUCKNER PARK, INC. and S. S. Kresge Company, Individually and d/b/a K-Mart, Appellees.
    No. 19071.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 8, 1977.
    Rehearing Denied March 10, 1977.

      Will Barber, Dallas, for appellants.
    Catherine A. Gerhauser, Burford, Ryburn & Ford, Dallas, for appellees.
   AKIN, Justice.

Lorene Robinson, appellant, sustained an injury on June 2, 1973, allegedly resulting from negligent maintenance of property owned by appellee Buckner Park and leased to appellee S. S. Kresge Company. Mrs. Robinson settled a workmen’s compensation claim arising out of the incident, which settlement was approved by the Industrial Accident Board on January 23, 1974. This third-party action was filed on January 5,1976. A motion to dismiss alleging that the action was barred by the statute of limitations was filed, and the trial court dismissed the cause “with prejudice.” Because we hold that the action was not barred, we remand for trial on the merits.

Prior to the amendment of the workmen’s compensation statute, Tex.Rev. Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp. 1976), effective September 1, 1973, an employee whose injury was subject to compensation under the statute was required to proceed with the compensation claim before he could assert a third-party action. Watson v. Glens Falls Ins. Co., 505 S.W.2d 793, 795 (Tex.1974). A corollary to this requirement was that where a successful claim was made for compensation, the statute of limitations did not begin to run until the compensation claim was settled. Campbell v. Sonford Chemical Co., 486 S.W.2d 932, 934 (Tex.1972). However, the amendment to article 8307, § 6a specifically eliminated the requirement that the injured employee proceed against the compensation carrier before asserting a third-party claim; therefore, third-party claims are now governed by the general statute of limitations, Tex. Rev.Civ.Stat.Ann. art. 5526 (Vernon 1958). Campbell v. Sonford Chemical, at 934. In addition to amending article 8307, § 6a, the legislature also enacted article 8309, § 3b (Vernon Supp.1976), which provides:

No inchoate, vested, matured, existing or other rights, remedies, powers, duties or authority, either of any employe or legal beneficiary, or of the board, or of the association, or of any other, person shall be in any way affected by any of the amendments herein made to the original law hereby amended, but all such rights, remedies, powers, duties and authority shall remain and be in force as under the original law just as if the amendments hereby adopted had never been made, and to that end it is hereby declared that said original law is not repealed, but the same is, and shall remain in full force and effect as to all such rights, remedies, powers, duties and authority; and further this law in so far as it adopts the law of which it is an amendment is a continuation thereof, and only in other respects a new enactment [emphasis added].

The question presented is whether the date the statute of limitations began to run is governed by the law as it existed before or after the amendment to article 8307, § 6a. Appellee contends that the statute of limitations is procedural, not a vested right, and that it began to run on the effective date of the amendment. Consequently, appellee contends that the appellant’s third-party action is barred. We cannot agree because article 8309, § 3b provides that no right or remedy “[will] be in any way affected by way of the amendments,” and that all rights and remedies “shall remain and be in force as under the original law just as if the amendments . . had never been made.” [emphasis added]. This applies to “inchoate, vested, matured, existing or other” rights or remedies. The time in which a suit may be brought is part of the remedy available. American National Ins. Co. v. Hicks, 35 S.W.2d 128, 130 (Tex.Comm.App.1931, jdgmt. adopted). Construing a similarly worded saving clause concerning a prior amendment to the compensation act, this court rejected the contention that a procedural right was not preserved by the saving clause. Texas Employers’ Ins. Ass’n v. Vineyard, 340 S.W.2d 106, 108 (Tex.Civ.App.-Dallas 1960, writ ref’d n. r. e.). A general statute of limitations is likewise procedural. Cohen v. C. H. Leavell & Co., 520 S.W.2d 793, 796 (Tex.Civ.App.—El Paso 1975, no writ); see State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 231 (1958). Accordingly, we hold that the limitation period on appellant’s right to bring suit even though procedural is governed by the law as it existed prior to the amendment of article 8307, § 6a.

A similar problem was addressed in Johnson v. Johnson, 337 S.W.2d 131, 133 (Tex.Civ.App.—Beaumont 1960, no writ). There, the court construed a provision of the Probate Code providing that no accrued right shall be impaired by the provisions of the Code as preserving causes of action and remedies existing at the time the Code was enacted. Thus, the court held that a contest of a will was not barred by the Probate Code limitation period, but rather was governed by the limitation period existing before the Probate Code was enacted. The compensation act . likewise preserves “rights” and “remedies” as they existed pri- or to amendment. Consequently, this includes the prior limitation period with respect to injuries that occurred before the effective date of the amendment.

Reversed and remanded.

ROBERTSON, J., not participating.

      . Although appellant does not raise on this appeal the propriety of the trial court’s “dismissal” of this cause on appellee’s unsworn motion without hearing evidence and without utilizing the summary judgment process, a plea of limitation is an affirmative defense in that it goes to appellant’s right to recover and cannot, therefore, be properly sustained at a preliminary hearing unless the summary judgment process is used. Piper v. Estate of Thompson, 546 S.W.2d 341 (Tex.Civ.App.—Dallas 1976, no writ); see Tex.R.Civ.P. 94. Accordingly, we treat the “dismissal with prejudice” as a summary judgment that plaintiff take nothing.


author: JAMES, Justice.

text:
    E_ A_ W_, Appellant, v. STATE of Texas, Appellee.
    No. 5620.
    Court of Civil Appeals of Texas, Waco.
    Feb. 10, 1977.
    Rehearing Denied March 3, 1977.
    Bill Schieffelin, Austin, for appellant.
    W. D. Ralston, Jr., Corsicana, for appel-lee.
   OPINION

JAMES, Justice.

This is a juvenile case. After jury trial, the trial court adjudged the eleven year old minor child in question to have engaged in delinquent conduct and committed her to the Texas Youth Council. A written confession by the minor was admitted in evidence during the adjudication phase of the trial.

The central question before us is whether or not this eleven year old child “knowingly, intelligently, and voluntarily” waived her privilege against self-incrimination within the meaning of Section 51.09(b) of the Texas Family Code. The trial court held that she did. We disagree, and hold that she did not knowingly, intelligently, and voluntarily waive her privilege against self-incrimination, and thereby reverse and remand the cause for retrial.

The minor in question is an eleven year old girl with a sixth grade education, of average intelligence for her age. Her father had disappeared from the family since 1965. She had several brothers and sisters. The mother of the children for the past five years had been living with a man other than the children’s father. The child’s mother and foster father had two children, making seven children in all living in the home. The child’s mother normally worked at the Adams Hat Company in Corsicana, Texas; however, a short time before the transactions in question she was injured at work and was hospitalized during the times material to this case.

At or about 9:00 P.M. on December 15, 1975, the Appellant was arrested by officers of the Corsicana Police Department on suspicion of burglary of an apartment owned by one Barbara Cade. Appellant was turned over to the County Juvenile Officer and placed in the Navarro County Detention Center at about midnight of the above-named date.

The next morning, which was December 16, 1975, at about 9:00 A.M. she was taken by the Juvenile Officer to a Justice of the Peace who advised her of her rights. She then left with the Juvenile Officer and gave a statement to him which was reduced to writing concerning the burglary. The Juvenile Officer then took the child back to the Justice of the Peace who read the statement back to her, whereupon she signed it. Likewise the Justice of the Peace certified in writing at the bottom of the statement that he had examined the child “independent of any law enforcement officer or prosecuting attorney and determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived” her rights, all as prescribed by Section 51.09(b) of the Texas Family Code.

Trial was had to a jury, which found that the Appellant had committed the alleged burglary. The written confession given by Appellant was admitted into evidence over the objection of her attorney. At the dispo-sitional hearing, Appellant was committed to the Texas Youth Council.

During the trial, Appellant’s Counsel moved for and was granted a hearing outside the presence of the jury to determine if the written confession was voluntary. The trial court held that the confession was voluntary, and admitted it into evidence.

The Appellant appeals from the trial court’s judgment asserting that it was error for the trial court to hold that Appellant could knowingly, intelligently, and voluntarily waive her constitutional rights, and that it was error to admit into evidence over timely objection the written confession after Appellant had been held in a detention facility with no opportunity to consult with a parent or attorney. We sustain these contentions and thereby reverse and remand the cause for retrial on the merits.

Here, the child was handled by the Juvenile Officer and the Justice of the Peace in a manner in keeping with Section 51.09(b) of the Texas Family Code. That is to say, she was taken by the Juvenile Officer to the magistrate who first informed her of her rights. Then the Juvenile Officer prepared the written statement, after which he took the child back to the magistrate along with the written statement. Then, with no one present except the magistrate and Appellant, the magistrate read the statement to Appellant and asked her if she understood it. The magistrate testified at the trial that he was fully convinced that Appellant understood the nature and contents of the statement, and that she signed it voluntarily.

Section 51.09(b) in pertinent part provides: “The child must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement and sign the statement in the presence of a magistrate . . . .”

We have a fact situation wherein the mechanics and procedure as prescribed by Section 51.09(b) were carefully carried out; however, we are confronted with this problem: Can an eleven year old girl of average intelligence for her age, with a sixth grade education, “knowingly, intelligently, and voluntarily” waive her constitutional privilege against self-incrimination, where she has spent from midnight to 9:00 A.M. in the Juvenile Detention Center, and where she has had no guidance from or the presence of a parent or other adult in loco parentis, or an attorney? We think not. In our opinion, a child of such immaturity and tender age cannot knowingly, intelligently, and voluntarily waive her constitutional privilege against self-incrimination in the absence of the presence and guidance of a parent or other friendly adult, or of an attorney. See In Re Gault (U.S.Sup.Ct.1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.

We recognize that under subsection (b) of Section 51.09 which became effective September 1,1975, said present statute allows a juvenile to waive his rights without the presence of counsel or parent, thus changing the previous requirement of the statute. See B.L.C. v. State (Houston 14th CA 1976) 543 S.W.2d 151, no writ. However, under the facts of the case at bar, we believe the admission of Appellant’s written confession in evidence against her constituted a violation of due process. See Leach v. State (Houston 14th CA 1968) 428 S.W.2d 817, no writ; also 87 A.L.R.2d 624, Anno.: “Volun-tariness and Admissibility of Minor’s Confession.”

For the reasons hereinabove stated, we reverse the trial court’s judgment and remand the cause for a new trial.

REVERSED AND REMANDED.


author: PEDEN, Justice.

text:
    E. Raymond JENSEN, Appellant, v. Paul H. KISRO, Appellee.
    No. 16827.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Feb. 10, 1977.
    Bernard & Bernard, D. R. Bernard, Houston, for appellant.
    Felton, Hooker & Giddens, Dale W. Fel-ton, Houston, for appellee.
   PEDEN, Justice.

Paul H. Kisro is the residual legatee of the estate of Mrs. Ella K. Jensen, deceased. He sued E. Raymond Jensen for the value of 300 shares of bank stock owned by Mrs. Ella Jensen and sold by defendant Mr. Jensen on October 21, 1970 in reliance on a power of attorney. Raymond Jensen appeals from a summary judgment holding “that the power of attorney dated January 20,1964 executed by Ella K. Jensen naming E. Raymond Jensen as her attorney in fact terminated on or before October 21, 1970, due to disability of the principal, Ella K. Jensen; that the acts done by E. Raymond Jensen pursuant to that power of attorney on October 21, 1970, were done without legal authority.”

The appellant’s only point of error is “the trial court erred in holding that appellant’s power of attorney terminated by operation of law as a result of a serious illness suffered by the grantor.” We sustain this point.

The instrument in question is a general power of attorney not coupled with an interest. It was revocable at will. Hemphill v. Junious, 372 S.W.2d 580 (Tex.Civ.App.1963, no writ). It did not contain the provision suggested in Section 36A of the Texas Probate Code “this power of attorney shall not terminate on disability of the principal.” It authorized Mr. Jensen “. to do any and every act and exercise any and every power that I might or could do or exercise through any other person . .”

In response to requests for admissions the appellant admitted

1. That Ella K. Jensen was admitted to Pasadena Bayshore Hospital at approximately 4:55 A.M. on October 21, 1970.
14. That he sold 300 shares of First Pasadena State Bank stock belonging to Ella K. Jensen on October 21, 1970.
15. That Ella K. Jensen was disabled on October 21, 1970.
16. That she was very, very sick on that day.

We review the deposition testimony of Dr. R. C. Davis, Mrs. Ella K. Jensen’s family physician. He said Mrs. Jensen, age 80, had been in a nursing home but when readmitted to the hospital at 4:55 A.M. on October 21, 1970, “she was very sick. Toxic. Confused.” She had an intestinal obstruction and was unable to communicate for at least a couple of days. In his medical opinion she was totally incapacitated on October 21,1970. Her failure to communicate was a result of her acute illness with an intestinal obstruction, not her mental condition. He saw her every day. After a few days she became communicative to some degree, and this continued until a few days before her death in February (some four months later). The hospital record of Dr. Davis’s physical examination of Mrs. Jensen when she was admitted on October 21, 1970, states in part “The patient is an elderly woman who is not able to communicate, who only stares at the ceiling and offers no communication whatsoever.”

The appellee had the burden of establishing that there was no genuine issue as to any material fact and that he was entitled to judgment as a matter of law. Gibbs v. Genera] Motors, 450 S.W.2d 827 (Tex.1970).

“An agency is ordinarily terminated as a matter of law by the insanity of the principal . . . Since the principal is said at all times to have a right of supervision over the agency, his insanity or mental incapacity before performance by the agent of his duties ordinarily terminates the agency as a matter of law. The lunacy or mental incapacity of the principal will have this effect whether or not he has in fact been adjudged insane, but, where not formally established, it would seem that the fact of lunacy must be clear and notorious and of such a nature as affects the principal’s exercise of his will . . .” 2A C.J.S. Agency § 141 a, p. 761 (1972).

We find no Texas cases on the effect of the principal’s temporary mental incapacity (not formally established) on the authority of his agent during such incapacity. The Restatement of Agency 2d (1958) provides in Section 122(1): “Except as stated in the caveat, the loss of capacity by the principal has the same effect upon the authority of the agent during the period of incapacity as has the principal’s death.” The caveat is: “The Institute expresses no opinion as to the effect of the principal’s temporary incapacity due to a mental disease.”

In a “Comment on Caveat” it is explained: “d. Where incapacity is created by marriage, by becoming an alien enemy, by losing citizenship or by conviction of a crime, the incapacity operates from the moment it is created until the condition ends. So, too, a declaration by a court having jurisdiction that the principal is insane or otherwise incompetent to act in his own affairs terminates or suspends the authority of his agent. On the other hand, the agent of one who becomes mentally incompetent to act on his own account or to appoint an agent, does not necessarily lose authority to act for the principal. Very brief periods of insanity caused by the temporary mental or physical illness of the principal do not destroy the power of a previously appointed agent to act in his behalf. Further, the mental disease causing insanity has no definite boundary at which a person loses capacity. Thus, one may have capacity to make a will without having capacity to conduct an intricate business transaction. Even where there is a pronounced mental incompetency, there may be ratification of previously executed transactions during lucid intervals. The matter is too amorphous for a statement of a definite rule.”

In our case the proof is insufficient for the movant to be entitled to summary judgment. Although he has established as a matter of law the facts conceded in appellant’s admissions 1, 14, 15, and 16, the meaning of the word “disabled,” as used in the 15th admission, is not clear. It is often applied in the law to physical as well as mental incapacity. Clearly, an agent’s authority would not be suspended under the common law simply because, for example, the principal’s hands were so injured that he could not endorse the stock certificate. Standing alone or coupled with the admission that Mrs. Jensen was very, very sick, the admission that she was disabled cannot be held to establish that on October 21,1970 she lacked the mental capacity to sell the stock.

As to the appellee’s remaining summary judgment evidence, the deposition testimony of Dr. Davis that Mrs. Jensen was confused, that in his medical opinion she was totally incapacitated, and that she was not able to communicate, does not establish as a matter of law that Mrs. Jensen lacked the mental capacity to carry out a sale of the stock.

Generally, opinion testimony does not establish any material fact as a matter of law unless the subject is one for experts or skilled witnesses alone where the jury or the court cannot properly be assumed to have, or to be able to form, correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry. Broussard v. Moon, 431 S.W.2d 534 (Tex.1968).

The related but not identical subject of the admissibility of evidence of mental capacity to make a will was considered by the Texas Supreme Court in Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (1941). “. . witnesses, whether experts or laymen, may, having first stated their observation of the habits, conduct, expressions, peculiarities, disposition, temper, or character of the person, in turn may give their opinion as to whether he was mentally capable of knowing or understanding the nature and effect of his acts . . .” (emphasis added).

The summary judgment against E. Raymond Jensen is reversed and remanded. His wife, also a defendant, did not appeal.


author: HALL, Justice.

text:
    CLEBURNE NATIONAL BANK, Cleburne, Texas, et al., Appellants, v. KENEDCO, INC., et al., Appellees.
    No. 5595.
    Court of Civil Appeals of Texas, Waco.
    Feb. 10, 1977.
    Rehearing Denied March 10, 1977.

      Gean B. Turner, Turner, Turner & Turner, Anderson & Anderson, Cleburne, Sloan B. Blair, Cantey, Hanger, Gooch, Cravens & Munn, Paul C. Cook, Ft. Worth, for appellants.
    Earl Rutledge, Ft. Worth, Robert J. Wilson, Burleson, for appellees.
   HALL, Justice.

At all pertinent times, Edward Leroy Leek and Kenneth Pugh were the only shareholders and directors (each owning 50% of the stock) of a Texas corporation known as Kenedco, Inc. Through Kenedco, Leek and Pugh operated a business known as KenLee Marine Sales, selling boats, boat trailers, boat motors, and related marine products; and another business known as Cleburne Muffler Shop, selling mufflers and other automobile accessories. Pugh managed KenLee and Leek managed the muffler shop. Cleburne National Bank financed the inventory of KenLee for Kened-co under a system commonly known as “floor-planning,” whereby KenLee executed individual promissory notes and security agreements as items of inventory were purchased, and then paid the note involved as the item securing it was sold. Bank’s loans to Kenedco were also secured by the written personal guaranties of Pugh and Leek. Additionally, Bank held a vendor’s lien note executed by Kenedco, which was secured by a deed of trust lien on land owned by Kenedco. In November, 1973, Bank initiated suit against' Kenedco, Leek, and Pugh to collect on floor-plan notes whose principal amounts totaled $77,496.62; to collect on the balance of the vendor’s lien note in the amount of $27,943.96; and for interest, attorneys’ fees, and foreclosure of its security interests and deed of trust lien:

Later, Leek brought suit against Bank and Pugh alleging in detail that Bank and Pugh conspired to impair and fraudulently and negligently did impair the collateral for the notes by disposing of inventory without proper payment to KenLee, by failing to see that Bank’s floor-plan notes were paid as the inventory was disposed of, and by false inventory checks and reports. He pleaded that as a result of these activities he “has been caused to suffer damages by reason of his personal liability for Kenedco, Inc.’s indebtedness to Cleburne National Bank in a sum at least equal to the principal amount of all notes executed by such corporation to such Bank totaling $107,-496.80,” plus interest and attorneys’ fees, “and for $40,000.00 in consequential damages in the form of expenses relating to such corporation for which he may be adjudged liable to Kenedco, Inc.; for $150,-000.00 for damages to his credit standing; for $25,000.00 damages to his personal estate in the event he is held personally liable for the corporation’s said indebtedness to Cleburne National Bank”; and for exemplary damages totaling $3,500,000.00. He prayed for judgment “for his damages as are above set forth.”

The cases were consolidated. Thereafter, the court appointed Joseph M. Coffey, Jr., Receiver to take charge of Kenedco’s assets.

The trial was to a jury. No issues were submitted to it relating affirmatively to Bank’s action on the notes. However, the jury made a number of findings of conspiracy, fraud, and negligence against Bank and Pugh in support of Leek’s contentions of impairment of the notes’ collateral by them. The jury then made the following answers to the damage issues submitted on behalf of Leek:

No. 48a: $100,000.00, “For his personal liability for the indebtedness of Kened-co, Inc.”;
No. 48b: None, “For injury to his credit standing”;
No. 48c: None, “For injuries to his personal estate”;
No. 49: $50,000.00 for exemplary damages against Bank; and No. 50: $50,000.00 for exemplary damages against Pugh.

Based upon these findings, judgment was rendered awarding Leek an affirmative recovery of $100,000.00 against Bank and Pugh, jointly and severally, for actual damages; and $50,000.00 against Bank and Pugh, each separately, for exemplary damages.

The judgment contains these additional recitations:

“It further appearing to the Court from the Report of the Receiver, Joseph M. Coffey, Jr., on file herein, and from the representations of counsel for Cle-burne National Bank, Edward Leroy Leek, and Kenedco, Inc., that all alleged indebtedness of Kenedco, Inc., to Cle-burne National Bank has been settled and compromised subsequent to the return of the jury’s verdict;
“IT IS THEREFORE FURTHER ORDERED, ADJUDGED AND DECREED that Cleburne National Bank recover nothing of or from Kenedco, Inc., Edward Leroy Leek, or Kenneth Pugh by this suit.”

This recitation of settlement and the take-nothing judgment based upon it against Bank are not challenged by any party.

Bank and Pugh appeal. Among other grounds for reversal they assert that the jury’s answer to special issue 48a (awarding Leek $100,000.00 for his personal liability for the indebtedness of Kenedco) is defensive in nature, can serve only to reduce Leek’s liability for any recovery by Bank against Kenedco, and will not support an affirmative recovery in favor of Leek against them; and that in view of the take-nothing judgment against Bank in favor of Kenedco, Leek is not entitled to any relief based on this finding. Additionally, they say that because the jury failed to find (in answers to issues 48b and 48c) that Leek suffered any actual damages, he is not entitled to exemplary damages. Responding, Leek says his right to recover the $100,-000.00 awarded by the jury cannot be prejudiced by activity after the verdict. We agree with Bank and Pugh.

V.T.C.A., Bus. & C. § 3.606 provides in pertinent part that the holder of a note “discharges any party to the instrument to the extent that without such party’s consent the holder . . . unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

Leek pleaded impairment of collateral by Bank and Pugh, each individually and in concert with the other. He sought relief to the extent this impairment affected his liability on behalf of Kenedco. Special Issue 48a submitted this question to the jury. As to Bank, this issue was plainly defensive, and could only serve to diminish or defeat Bank’s recovery against Leek in keeping with the provisions of V.T.C.A., Bus. & C. § 3.606, supra. As to Pugh, it could only serve to indemnify Leek for what he might be required to pay Bank on behalf of Ken-edco. It does not submit a question related to independent, affirmative relief for damages. Without indebtedness to Bank by Kenedco the issue and its answer are immaterial and will not support a judgment in favor of Leek. At the time of judgment, Kenedco was not indebted to Bank. Accordingly, Leek was not entitled to relief on the basis of the jury’s answer to issue 48a.

The jury responded “none” in answer to Leek’s only affirmative issues for damages. Without actual damages, a plaintiff may not recover exemplary damages in Texas. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 409 (1934).

The judgment in favor of Leek against Bank and Pugh is reversed, and judgment is rendered that he take nothing against them. In all other respects, the judgment is affirmed.

The costs of this appeal are assessed against Leek.


author: O’QUINN, Justice.

text:
    TEXAS REAL ESTATE COMMISSION, Appellant, v. Pascal White TURNER, Appellee.
    No. 12471.
    Court of Civil Appeals of Texas, Austin.
    Feb. 16, 1977.
    Rehearing Denied March 9, 1977.
    John L. Hill, Atty. Gen., Colin J. Carl, Asst. Atty. Gen., Austin, for appellants.
    Bob Roberts, Byrd, Davis, Eisenberg & Clark, Austin, for appellee.
   O’QUINN, Justice.

By its order entered in February of 1972, the Texas Real Estate Commission revoked the license of Pascal White Turner as a real estate salesman, after a hearing on charges jointly against Joseph G. Goergen, a licensed real estate broker in whose employ Turner worked, and against Turner as salesman. The charges in brief were that fees had been paid to an unlicensed person, for assistance in procuring prospects who later bought real estate sold by Goergen and Turner, in violation of The Real Estate License Act of Texas.

On appeal to district court in Travis County, the trial court set aside the order of the Commission. Prom that judgment, the Commission, acting through the Attorney General, has appealed and brings two points of error.

We will sustain the position of the Commission that the trial court erred in failing to find that the order of the Commission was supported by substantial evidence, and will reverse judgment of the trial court and render judgment sustaining the order of the Commission.

Appellee Turner was employed as an agent in the real estate firm of Joseph G. Goergen, a licensed broker. In course of his employment, Turner obtained from a sergeant at Bergstrom Air Force Base lists showing names of military personnel being transferred to the Austin area. Using these names, Turner solicited real estate business of these individuals, and for each prospect reached by Turner, who subsequently purchased a home through the Goergen real estate agency, Turner by agreement paid fifty dollars to the sergeant who supplied the names. It is uncontested that the sergeant was not licensed to sell real estate.

After hearing before the Texas Real Estate Commission in February, 1972, the Commission issued an order providing in part:

“. . . the Texas real estate salesman licensure privileges vested in Pascal White Turner be, and the same are, revoked and in all things held for naught as of midnight, February 27, 1972. IT IS FURTHER ORDERED that no action toward suspending or revoking the said Joseph G. Goergen’s Texas real estate broker licensure privileges be taken as a result of this hearing, but the said Joseph G. Goergen is hereby specially cautioned to maintain proper supervision and control over his real estate brokerage business.”

The Commission made the following findings of fact in its order:

“. . . that during the last half of 1970, Joseph G. Goergen, then and now a Texas-licensed real estate broker, while acting as a real estate agent in Texas, did, through his agent, Pascal White Turner, then and now a Texas-licensed real estate salesman, pay fees to Gary Stegall in return for the said Gary Ste-gall’s assistance in procuring prospects who purchased real property through the said Joseph G. Goergen’s real estate agency; that the said Gary Stegall was not a Texas real estate licensee or an attorney-at-law at any time pertinent thereto; that the said Joseph G. Goergen had no knowledge of the said fees until questioned about them by a Texas Real Estate Commission representative after they had been paid; that the said acts on the part of the said Pascal White Turner constituted violations of Section 16(c)(6) of the Real Estate License Act and are cause for the suspension or revocation of the said Pascal White Turner’s Texas real estate salesman licensure.”

Following this ruling, Turner obtained a temporary restraining order in district court. Turner also sought review of the Commission’s order, pursuant to Tex.Rev. Civ.Stat.Ann. art. 6573a, sec. 21 (1969), of The Real Estate License Act.

The trial court, after hearing evidence, entered judgment for Turner and set aside the Commission’s order. The court made a specific finding of fact that the finding of fact of the Commission, “that the said Joseph G. Goergen had no knowledge of the said fees until questioned about them by a Texas Real Estate Commission representative after they had been paid,” was not supported by substantial evidence.

It is settled that judicial review of an order of the Commission revoking a license is governed by the substantial evidence rule. Kost v. Texas Real Estate Commission, 359 S.W.2d 306 (Tex.Civ.App. Texarkana 1962, writ ref.); Roquemore v. Texas Real Estate Commission, 501 S.W.2d 368 (Tex.Civ.App. Austin 1973, no writ).

The ultimate question for district court decision is whether at the time the Commission’s order was entered there existed sufficient facts to justify entry of an order revoking a license. Tongate v. Texas Real Estate Commission, 450 S.W.2d 761 (Tex.Civ.App. Fort Worth 1970, no writ). The presumption of validity is with the order of the Commission and the party appealing from the order must bear the burden of proof to demonstrate invalidity of the order. Roquemore v. Texas Real Estate Commission, supra.

It is also established that in a substantial evidence review the role of the trial court is not to substitute its judgment or discretion for that of the administrative agency, or to determine the wisdom or desirability of the administrative order, but rather simply to sustain the order if supported by substantial evidence as presented before the trial court. Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.2d 505 (1934); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949). Also see Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 Sw.L.J. 239 (1969); Hamilton and Jewett, The Administrative Procedure and Texas Register Act; Contested Cases and Judicial Review, 54 Tex.L.Rev. 285, 295-302 (1976); 1 Tex.Jur.2d Administrative Law § 42 (1959).

The Commission brings two points of error. The second point claims error in failure of the trial court to find that the order revoking Turner’s license was supported by substantial evidence. We sustain this point.

Evidence before the trial court provided ample substantial evidence to support the Commission's finding that Turner was in violation of the fee splitting provision of the Texas Real Estate License Act. Tex. Rev.Civ.Stat.Ann. art. 6573a, sec. 16(c)(6) (1969). As pertains to substantial evidence directly relating to the revocation of Turner’s license, it is not relevant whether his employer, Goergen, knew of the fee splitting arrangement. The evidence shows that Turner knew of the fee splitting, specifically had it called to his attention, and was instrumental in establishing the arrangement with the sergeant who was an unlicensed person.

Judgment of the district court is reversed. We render judgment reinstating and making effective the order of the Commission as provided in the order itself.

Reversed and Rendered.


text:
    HARRIS COUNTY and Harris County Commissioners Court, Appellants. v. SUBURBAN UTILITY COMPANY, Appellee.
    No. 16829.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Feb. 17, 1977.

      Joe Resweber, County Atty., Michael R. Davis, Asst. County Atty., Houston, for appellants.
    Sears & Burns, Robert L. Burns, Houston, for appellee.
   PEDEN, Justice.

Harris County and the Harris County Commissioners Court appeal from the sustaining of a plea to the jurisdiction filed by the defendant, Suburban Utility Company. Appellants brought this suit under Article 2372q-l, V.C.S., which granted to commissioners courts of counties having a population of 1,500,000 or more the authority to regulate certain private water companies and to enforce their decisions through injunctions and by collection of civil penalties.

Appellants’ original petition, filed on April 20, 1976, alleged that Suburban Utility violated Article 2372q-l by failing to file with Commissioners Court its schedule of effective rates as required by the statute and by notifying certain of its subscribers, without first requesting a hearing or submitting its proposed new rates to the Commissioners Court, that beginning on January 1, 1976, it would charge rates other than those then in effect. Appellants sought a permanent injunction and a civil penalty of $1,000 for each day of violation.

On June 17, 1976, the appellants filed a motion asking that Suburban Utility Company be required to show cause 1) why it should not be temporarily enjoined from charging rates higher than those in effect on September 1, 1975, and 2) why it should not be fined “not less than $1,000 for each day of violation of Article 2372q — 1” because of its failure to file its rate schedule and its failure to give notice before raising any rates.

Suburban Utility’s plea to the jurisdiction asserted that the trial court did not have jurisdiction over the suit, that it was moot, and that “there is not enough time remaining for final trial and judgment and for completion of the appellate process though the Supreme Court by the unsuccessful party before the statute under which Plaintiffs are suing is terminated by repeal, and the repealing act does not contain a provision saving suits pending under the repealed statute.” Further, that the statute under which the plaintiffs seek relief, Article 2372q-l will be repealed on September 1, 1976, by Article 1446c. This plea to the jurisdiction was granted by the trial court on August 25, 1976.

The appellants’ only point.of error is: “The district court erred in dismissing the suit of Appellants to impose civil penalties upon appellee under the provisions of Article 2372q-l, V.C.S.” The appellants say that they retained power over Suburban Utility Co. until September 1, 1976, when Art. 1446c excluded them from exercising new authority over Suburban. They explain that their appeal is directed against the trial court’s conclusion that if the underlying statute ceased to exist, then the special remedies which it allowed also ceased, together with unconcluded actions brought under the statute. They contend that had the court not dismissed their suit, they would have, in the six days remaining before September 1, 1976, “succeeded in a (pending) motion for summary judgment” and that once the finding of liability for civil penalty had been entered, that finding would have been saved from becoming a nullity following the repeal of Article 2372q-l by Article 1446c.

The record before us does not show that the appellants had filed a motion for summary judgment under Rule 166-A, Texas Rules of Civil Procedure, to impose civil penalties. It appears that the motion to which they refer was the one we have mentioned whereby Suburban Utility was given notice to appear and show cause why it should not be fined “. . . not less than $1,000 for each day of violation of Article 2372q-l . . . ” Since Art. 2372q — 1 did not provide that civil penalties may be recovered by summary proceedings, the ordinary mode of proceeding must be used. 70 C.J.S. Penalties § 8e(l), 399. We can perceive no possible means by which the appellants could have, within the six days remaining, obtained a finding of liability against the appellee; it is certain there was not time for the appellate process to have been utilized.

A case is moot if it cannot proceed to a final judgment that will be effective as to any right which the court might determine. Speed v. Keys, 130 Tex. 276, 109 S.W.2d 967 (1939); Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753 (1932).

The appellee correctly states that Art. 2372q-l did not contain a saving clause in favor of pending suits.

The Texas Supreme Court held in Dickson v. Navarro County Levee Imp. Dist., 135 Tex. 95, 139 S.W.2d 257 (1940): “It is almost universally recognized that if a statute giving a special remedy is repealed, without a saving clause in favor of pending suits, all suits must stop where the repeal finds them; and, if final relief has not been granted before the repeal goes into effect, it cannot be granted thereafter. A like general rule is that if a right to recover depends entirely upon a statue, its repeal deprives the court of jurisdiction over the subject matter.”

We do not agree with either of the appellants’ last two arguments. They say that Section 3, Final Title, Revised Statutes of 1925, applies to the present controversy. We hold that it is not a statement of policy but is only a savings clause to be applied to statutes repealed or amended by the 1925 statutory revisions. Article 1446c, the Public Utility Regulatory Act, was not one of the revised statutes and is not an amendment to any of them. The appellants also contend that Article 1446c is a code and that under the provisions of Section 3.11 of Article 5429b-2, the Code Construction Act, they are entitled to continue their authority over the appellee, to at least conclude any outstanding matters. We find no basis for deciding that Article 1446c is a code, and we hold that the Code Construction Act does not apply to it.

We do not reach the appellee’s second counterpoint challenging the constitutionality of Article 2372q-l.

The trial court’s order of dismissal is affirmed.


text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. John D. HEATON, Appellee.
    No. 5652.
    Court of Civil Appeals of Texas, Waco.
    Feb. 17, 1977.
    Louis Muldrow, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellant.
    Jim Meyer, Dunnam, Dunnam & Dun-nam, Waco, for appellee.
   HALL, Justice.

Plaintiff, John D. Heaton, slipped and fell while shopping for groceries in a supermarket owned by defendant, H. E. Butt Grocery Company. He brought this suit in McLennan County, where the store is located, to recover damages for personal injuries, medical expenses, and lost wages resulting from the fall. He alleged that he slipped on grapes on the floor of the store, and that they were there because of defendant’s negligence. Defendant filed a plea of privilege to be sued in Nueces County, the asserted county of its residence. Plaintiff controverted the plea under the provisions of § 9a, Article 1995, Vernon’s Ann.Civ.St., which permits a plaintiff to maintain a suit for damages based upon the negligence of the defendant in the county where the negligent act or omission occurred. After a hearing without a jury, the plea of privilege was overruled. Defendant brought this appeal.

To defeat defendant’s plea of privilege in a case like this one, a plaintiff is required to establish, among other things, (1) that the defendant placed the foreign object on the floor, or (2) knew it was on the floor and negligently failed to remove it, or (3) that it had been on the floor for such period of time that it would have been discovered and removed by the defendant in the exercise of ordinary care. H. E. Butt Grocery Co. v. Russell, 391 S.W.2d 571, 573 (Tex.Civ.App.—Waco 1965, writ ref’d n. r. e.). In our case, plaintiff concedes there was no evidence of facts (1) and (2), but he asserts that fact (3), which was impliedly found by the court, was established by the proof. Defendant contends the evidence is legally and factually insufficient to support the implied finding. It also assigns error to the court’s rulings on the admissibility of a conclusion expressed by plaintiff. We overrule these complaints and affirm the judgment.

Plaintiff’s testimony may be summarized as follows: He was shopping for groceries in defendant’s store at the time of his fall, and had selected several items. Soon after leaving the produce department, he was walking in a pretty heavily traveled main aisle when he slipped and fell. He landed on his buttocks. He was pushing a shopper’s cart at the time and looking for spices and did not see, before the accident, what caused his fall. After getting up, he saw that he had slipped on some light green grapes. At least a dozen grapes were on the floor, separated from the stems, and scattered over an area about twelve inches in diameter. A small puddle of water was next to the grapes. He fell partially onto the grapes and into the water. The grapes were “smashed and spread out.” All of the juice had been pressed out of them and they were in a drying stage. There were footprints and cart tracks on the grapes. The grapes, water, and floor were dirty. After the fall, he had water, dirt, and grape juice on the seat of his pants. The floor around the grapes and water where he fell was dirtier than the floor in the other part of the store and “looked like it hadn’t been cleaned for awhile.”

Additionally, on direct examination, plaintiff was asked this question: “Would you tell the court whether or not the same layer of dirt that was on the floor proceeded to cover the grapes as if they had been there for a great length of time?” Defendant’s objections that the question was leading and called for a “rank opinion” were overruled. Plaintiff answered, “Yes. It did look like it. It appeared that way.”

Plaintiff’s testimony contains proof that the grapes which caused his fall were on the floor of a heavily traveled, main aisle; that they had been there longer than mere moments or a few minutes; and that they were in fact left there while other parts of the floor in the area were cleaned by defendant. This evidence is legally sufficient to support the questioned finding. All of the evidence in the case, considered in its entirety, is factually sufficient to support the finding.

Defendant says its contentions of insufficiency of the evidence are supported and controlled by Furr’s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727 (Tex.Civ.App.—El Paso 1973, writ ref., n. r. e.); H. E. Butt Grocery Company v. Rodriguez, 441 S.W.2d 215 (Tex.Civ.App.—Corpus Christi 1969, no writ); and O’Neal v. J. Weingarten, Inc., 328 S.W.2d 793 (Tex.Civ.App.—Beaumont 1959, writ ref., n. r. e.). We disagree. Each of these cases is totally lacking in proof of the time the foreign substance was on the floor. This lack of proof distinguishes these cases from ours.

Next, error is assigned to the court’s failure to sustain defendant’s objections of “opinion” and “leading” to the question which produced plaintiff’s conclusion that the grapes had been on the floor “for a great length of time.” We overrule these complaints.

Where a pertinent fact gained by a witness from personal observation of circumstances in evidence cannot be adequately reproduced or pictured merely by proof of the circumstances upon which it is based, the general rule permits the witness to express it in the form of a conclusion. The testimony in question falls within this rule. See, Missouri Pacific Ry. Co. v. Jarrard, 65 Tex. 560, 566 (1886); City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 960 (1945); City of Beaumont v. Kane, 33 S.W.2d 234, 242 (Tex.Civ.App.—Beaumont 1930, writ dism.); Keck v. Woodward, 53 Tex.Civ.App. 267, 116 S.W. 75, 79 (1909, writ ref.); 2 McCormick & Ray, Texas Law Of Evidence (2d ed. 1956), p. 226, § 1397; 32 C.J.S. Evidence § 546(9), p. 121.

Defendant does not specify in its brief how the question was leading. The mere fact that plaintiff was asked to state “whether or not” the fact existed did not make this particular question leading. Lott v. King, 79 Tex. 292, 15 S.W. 231, 233 (1891); Hoover v. McFarland, 27 S.W.2d 568, 569 (Tex.Civ.App.—Texarkana 1930, no writ hist.); 1 McCormick & Ray, Texas Law Of Evidence (2d ed. 1956), p. 452, § 573.

Defendant’s remaining contentions are also without merit. They are overruled.

The judgment is affirmed.


author: ROBERTSON, Justice.

text:
    CHARTER MEDICAL CORPORATION et al., Appellants, v. Dr. Michael J. MILLER et al., Appellees.
    No. 19163.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 17, 1977.

      Bertrán T. Bader, III, Bert Bader, Frank L. Branson, Bader, Wilson, Menaker, Cox & Branson, Dallas, for appellants.
    R. Jack Ayres, Jr., Kelsoe & Ayres, Dallas, for appellees.
   ROBERTSON, Justice.

This appeal is from a temporary injunction, enjoining appellants, Charter Medical Corporation, Mesquite Memorial Hospital, Inc., and Howard Mulcay, and all others acting in concert with them, from attempting to enforce the provisions of the amended bylaws of Mesquite Memorial Hospital or in any manner attempting to interfere with or limit the appellees’ rights to practice podiatry in the hospital as they existed prior to the adoption of the amendment. The order granting the temporary injunction set forth the reasons for its issuance as follows:

. . . Plaintiffs have established by full and satisfactory proof all elements required for such injunction, including their probable right to recovery and irreparable damage herein and injury by virtue of the Defendants’ conduct;

We hold that the recital in this order does not comply with the requirement of Tex.R. Civ.P. 683 that every order granting an injunction shall set forth specific reasons for its issuance. Accordingly, we dissolve the temporary injunction.

In State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.1971), the supreme court stated that a trial court need not explain its reasons for believing an applicant has shown a probable right of recovery on the merits, but must give the reasons why injury will be suffered if the temporary injunction is not ordered. See Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). The specific reasons are to be stated in lieu of mere conclusory statements. Schulz v. Schulz, 478 S.W.2d 239, 244-45 (Tex.Civ.App.—Dallas 1972, no writ); Round Mountain Community v. Fulkes, 501 S.W.2d 474, 475 (Tex.Civ.App.—Austin 1973, no writ); and Charton Corp. v. Brockette, 534 S.W.2d 401, 405 (Tex.Civ.App.-Corpus Christi 1976, writ ref’d n. r. e.). When a temporary injunction order is issued which does not conform to the requirements of the rule, it necessarily constitutes an abuse of the trial court’s discretion and requires reversal. Crouch v. Crouch, 164 S.W.2d 35, 38 (Tex.Civ.App.—Waco 1942, no writ). The recital of “irreparable damage herein and injury by virtue of the Defendants’ conduct” lacks the specificity required by Rule 683 and by the above decisions. Accordingly, we hold that the trial court abused its discretion.

In view of this holding it would be inappropriate for us to decide the points raised concerning appellees’ probable right to permanent injunctive relief, and thus to render, in effect, an advisory opinion. A hearing on an application for temporary injunction does not serve the same purpose as a trial on the merits, nor should an appeal from a preliminary order be used to obtain an advance ruling thereon. Neither should it delay a trial on the merits.

Finally, as we have observed in Crawford Energy, Inc. v. Texas Industries, Inc., 541 S.W.2d 463, 468 (Tex.Civ.App.—Dallas 1976, no writ); Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 689 (Tex.Civ.App.—Dallas 1976, no writ); and Town Plaza Fabrics, Inc. v. Monumental Properties of Texas, Inc., 544 S.W.2d 775 (Tex.Civ.App.—Dallas, 1976), this appeal, like many other temporary injunction appeals, appears to be entirely unnecessary. Presumably, the trial judge, after granting the temporary injunction, would have given the ease a preferred setting for an early trial on the merits on request of either party so that the substantial questions involved in this litigation could be decided finally and expeditiously, as directed by the supreme court in Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 464 (1952). We see no reason why the case could not have been prosecuted to final judgment in less time than that required by this interlocutory appeal, which decides nothing except whether the status quo should be preserved pending trial on the merits. The most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case and thus secure a hearing in which both facts and law may be fully developed, and then both trial and appellate courts can render judgment finally disposing of the controversy. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959).

Accordingly, we reverse the judgment of the trial court and dissolve the temporary injunction order.


author: STERNBERG,. Justice.

text:
    Fred Thomas PRUITT, Appellant, v. BUGG BROTHERS et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Chas. A. Williams & Associates, Paducah, for appellant.
    John T. Carneal, George R. Effinger, Boehl, Stopher, Graves & Deindoerfer, Pa-ducah, for appellee Bugg Brothers.
   STERNBERG,. Justice.

Fred Thomas Pruitt appeals from an order of the Workmen’s Compensation Board. The Board found claimant to be permanently partially disabled to the extent of 60% as a result of injuries he received on June 5, 1972. It was stipulated by the parties that the only issue is the extent and duration of the disability, if any.

Appellant is 63 years of age (b. 4/24/11), married, has a third-grade education, does not read well enough to read the newspapers and, during his work life, has done only manual, unskilled labor.

Appellant was mashed between two trucks, resulting in injuries to his arms, shoulders and chest. He was hospitalized on two occasions and caused to take extensive periods of home bed rest. He returned to work, but was physically unable to do even menial tasks by reason of pains in his arms, legs, shoulders, chest and head, and numbness in his fingers.

Five doctors testified. Four of them actually examined claimant; the other doctor did not talk with or examine claimant. He testified only from a personal reading of x-rays and a myelogram of claimant and from a telephone conversation with the doctor who made the myelogram. The medical testimony delineates the extent of claimant’s disability as ranging from total disability to 5-15% disability to the body as a whole. Pruitt’s neighbor portrays him as being unable to do any work, whereas, prior to the injuries the two of them traded farm work. A professor of rehabilitation at the Rehabilitation Institute of Southern Illinois University, who made a job-availability study of the Paducah, Kentucky, area, opined that there is very little opportunity in that area for the type of employment claimant is capable of doing.

The first question presented on this appeal is:

“Whether, as a matter of law, a sixty-three year old illiterate who has never done anything but hard labor is less than 100% disabled when all the medical evidence substantiates that he is no longer capable of heavy work?”

Counsel for appellant would have this court lay down an arbitrary rule that in all instances a 63-year-'old illiterate person, who has never done anything but hard labor, is totally disabled when all of the medical evidence substantiates that he is no longer capable of doing heavy work. This, we cannot do. Each case must stand on its own bottom. Workmen’s compensation benefits are paid on occupational disability, not functional disability, and it is the responsibility of the Board to translate the percentage of functional disability into the percentage of occupational disability. The extent of occupational disability is not necessarily the same as the extent of functional disability. If there is substantial evidence to support the Board’s findings, this court is without authority to substitute its finding for that of the Board. Three Point Coal Co. v. Moser, 298 Ky. 868, 184 S.W.2d 242 (1944).

Dr. John D. Noonan, a neurosurgeon, testified that he examined claimant in February 1973, and at that time he found claimant unable to work, and the doctor was of the opinion that the disability would continue. He hospitalized claimant for a myelo-gram, which he read as normal, in that it did not show any evidence of spinal-cord compression. The doctor was not, however, able to state the cause of claimant’s disability. Dr. Noonan was reputed to have later changed his evaluation of the myelogram.

Dr. Donald C. Haugh, a surgeon, examined Pruitt at the time of his admission to the hospital, and he continued treating him until June 16, 1973. As a result of his examination and of being informed by Dr. Noonan that the myelogram was normal, Dr. Haugh gave as his opinion that Pruitt’s complaints result from the injuries he received on June 5, 1972. The doctor was of the opinion that claimant would not be able to do heavy work in the future, although he thought claimant could return to work where he is not required to lift objects weighing over 50 pounds. He evaluated claimant as having a 15% occupational disability.

Dr. Joseph Vance, an orthopedic surgeon, examined claimant on May 19, 1975. After completing his examination, he also talked with Dr. Noonan relative to his treatment of claimant. Dr. Noonan advised Dr. Vance that claimant had some evidence of mild to moderate degree of neurological deficit in his lower extremities. Dr. Vance attributed claimant’s disability to the 1972 trauma and rated claimant 5% to 15% disabled.

Dr. Carey W. Campbell, a neurosurgeon, examined Pruitt on June 9, 1975. He also viewed the x-rays and myelogram picture of claimant, which he interpreted as showing signs of a ruptured lumbar disc. From his personal examination and with the benefit of his reading of the x-rays and myelo-gram, he was of he opinion that Pruitt is totally disabled, subject, however, to the condition being alleviated by surgery.

Dr. Willard F. Chumley, an associate radiologist, did not examine claimant. He testified as to the proper reading of the x-rays and the myelogram film of claimant. He interpreted these as a finding in the lumbar region compatible with the presence of a herniated intervertebral disc.

The difficulty with appellant’s position is that all of the medical evidence does not substantiate his premise that he is no longer able to do heavy work. Counsel for appellant may argue that the medical evidence will sustain a finding of permanent total disability. However, where medical testimony is concerned and that testimony is conflicting, as is demonstrated here, the question of who to believe is one exclusively for the Board. Yocom v. Gentry, Ky., 535 S.W.2d 850 (1976).

The question next presented by appellant is:

“Whether the trier of fact’s conclusion can stand when it is supported only by disputed expert opinion which is premised on a mistaken fact assumption?”

In support of this issue appellant argues that Doctors Haugh and Vance gave their opinions under a mistaken assumption that the myelogram test was negative, when in fact it was positive. The evidence in this respect is not clear and convincing. Dr. Chumley read the myelogram as reflecting findings which are characteristic of a disc defect in the lumbar region, and he expressed surprise that Dr. Noonan may have interpreted the myelogram as perfectly normal. Dr. Haugh testified that Dr. Noonan did the myelogram and, in arriving at his evaluation and in making his findings, he used the report of the myelogram furnished by Dr. Noonan. This testimony is indicative of the confusion and misunderstanding which often arises over the proper interpretation of x-rays or myelogram films. Doctors read and evaluate these pictures differently. In the event there was confusion over Dr. Noonan’s evaluation and interpretation of the myelogram, it could have been clarified by retaking the doctor’s deposition, which was not done. Counsel for appellant charges that Dr. Noonan must have been mistaken either when he told Dr. Chumley that the myelogram showed a ruptured disc or when he told Doctors Vance and Haugh that it was perfectly normal. The uncertainty manifest by counsel for appellant would properly address itself to the weight to be given to the doctor’s testimony. In McCloud v. Beth-Elkhorn Corporation, Ky., 514 S.W.2d 46 (1974), this court said that it is within the province of the Board to determine the quality, character and substance of the testimony, and that where there is conflicting evidence as to facts, the Board’s findings would not be disturbed.

The judgment is affirmed.

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


author: PER CURIAM.

text:
    Walter E. PARIDO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Jack Emory Farley, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for ap-pellee.
   PER CURIAM.

Walter E. Parido appeals from a judgment entered on a jury verdict finding him guilty of robbery in the first degree and fixing his punishment at twenty years’ imprisonment.

Walter E. Parido and Kenneth Stafford were jointly indicted on the charge of armed robbery of the attendant of the Thoni Service Station in Lexington. The evidence discloses that Parido and Stafford, after returning from a trip to Kokomo, Indiana, in an automobile being operated by Parido, stopped at the Thoni Service Station to get some gasoline. Stafford sat in the car while Parido went into the service station. When the attendant, J. B. Stewart, asked Parido for $10 for the gasoline, Parido threatened him with a pistol and told him to give him his money or he would shoot him. Stewart surrendered all his cash, and Parido and Stafford departed. Within some forty-five minutes to one hour the two men were arrested in Parido’s automobile, and a pistol was found partly concealed under the front seat where Parido was sitting. Both men claimed to have been drinking rather heavily, and Parido said that he was so drunk he didn’t know what he was doing.

The two men were jointly indicted for armed robbery in the first degree. However, before the case was called for trial, Stafford entered a plea of guilty, and the court fixed his punishment at twenty years in the penitentiary. The Commonwealth, in trying Parido on the charge against him, called Stafford as a witness.. Upon direct examination, the following questions were propounded by the Commonwealth and answered by Stafford:

“D44 Were you charged by Detective McClain with robbery in the first degree?
A Yes, sir.
D45 Along with Walter Parido?
A Yes.
D46 Did you come in here before this court and enter a plea of guilty to that charge?
MR. WALTER: Objection.
THE COURT: Overruled.
D47 Did you enter a plea of guilty to that charge of robbery in the first degree?
A Yes, sir.
D48 And were you sentenced?
A Yes.
D49 What was your sentence?
MR. WALTER: Objection.
THE COURT: I will have to sustain as
to the form — what is the penalty.
D50 Has the penalty been fixed?
A Yes.
D51 What was the penalty?
A Twenty years.”

Upon redirect examination the Commonwealth again raised the issue of the prior plea of guilty and the penalty assessed by the following question?

“RD3 On this guilty plea of robbery in the first degree, you took the maximum penalty of twenty years?
A Yes.”

Later, in his closing argument to the jury, the Commonwealth’s attorney, in discussing Parido’s claim that he was too drunk to know what he was doing, cast this defense aside and made the following statement:

“Because what we boil down to is proof beyond all doubt that he committed this robbery, but the added proof by the co-defendant that he did it, because he came in here and took the maximum penalty for sitting in the car when the robbery went down, twenty years.”

No objection was made to the statement contained in the closing argument by Pari-do.

Parido now asserts that the court committed error prejudicial to his substantial rights by permitting the Commonwealth to elicit from the co-indictee or co-defendant evidence that he had pleaded guilty to the crime charged and accepted the maximum penalty of twenty years. This court finds that such evidence presented in this manner is highly prejudicial to appellant’s substantial rights, and its admission is error of such magnitude as to require reversal.

In Martin v. Commonwealth, Ky., 477 S.W.2d 506 (1972), this court said:

“It has long been the rule in this Commonwealth that it is improper to show that a co-indictee has already been convicted under the indictment.”

In Webster v. Commonwealth, 223 Ky. 369, 3 S.W.2d 754 (1928), evidence of the prior conviction of a co-defendant was elicited upon cross-examination. Of that evidence this court said:

“It was clearly improper to show on the trial of appellant that Oval Webster, jointly indicted with him, had been convicted under the indictment. * * *.
The defendant’s objection to the evidence should have been sustained. The commonwealth may show that Oval Webster has been convicted of a felony, but only for the purpose of impeaching him as a witness, and, if such evidence is given, the court should tell the jury that it is only to be considered by them on the credibility of the witness.”

In Foure v. Commonwealth, 214 Ky. 620, 283 S.W. 958 (1926), this court said:

“Gillis had been convicted a second time under this indictment and his appeal was pending at the time of this trial. He was introduced as a witness for defendant and on cross-examination was required to answer that he had been convicted of a felony, although it was shown that an appeal was then pending in his case. * * *. The effect of this evidence was to show that another jury had found Gillis guilty of the same offense here charged, which was quite prejudicial to appellant’s substantial rights.”

In Crawford v. Commonwealth, 242 Ky. 458, 46 S.W.2d 762 (1932), Kim Crawford, along with his brother, Porter Crawford, and others had been indicted for murder. Porter Crawford was first tried and found guilty. At the trial of Kim Crawford, Porter was required to testify on cross-examination over the objection of the defendant that he had been tried and convicted on the same indictment then pending against the defendant, Kim Crawford. Although the court instructed the jury only as to murder and conspiracy, it required the jury to believe beyond a reasonable doubt that Kim Crawford conspired with Porter Crawford to commit the murder. In discussing Porter Crawford’s testimony and its effect, this court said:

“ * * * But under such circumstanc- • es it was peculiarly prejudicial to the defendant to get before the jury the fact that Porter Crawford had been found guilty although an appeal was pending, and this evidence was used with telling effect in the argument of the case to the jury. Clearly this error was prejudicial to the substantial rights of the defendant, and that a new trial should be granted.”

Cf. West v. Commonwealth, 273 Ky. 779, 117 S.W.2d 998 (1938).

The Commonwealth seeks to ameliorate the prejudicial effect of the evidence introduced by arguing that it could at least have been introduced to impeach the witness. Upon this question, it is on sound ground except for this shortcoming. First, Kenneth Stafford was introduced as a witness on behalf of the prosecution. The evidence elicited was upon direct examination, and there is no showing at any place in the record that this Commonwealth witness ever reached the point of becoming a hostile witness to the extent that would have justified the introduction of evidence, if necessary, regarding his credibility. The truth of the matter is the Commonwealth was in no wise concerned with the credibility of this witness, and this issue was not raised because Stafford told exactly what the Commonwealth wanted to hear. He was a most cooperative and friendly witness. As Stafford’s credibility was not an issue, the admission of evidence concerning his guilty plea and the assessed maximum penalty of twenty years’ imprisonment was reversible error.

Parido complains mightily concerning asserted erroneous action of the court in refusing to instruct the jury on the question of intoxication. KRS 501.080 provides that intoxication is a defense to a criminal charge only if the condition negatives the existence of an element of the offense. One of the necessary elements of the offense of the robbery in the first degree is intent. Parido argues rather extensively that his intoxication clearly demonstrated that he had been unable to form the intent. However, the failure to give an instruction on intoxication creates a rather awkward situation where the accused has testified that he was so drunk that he didn't remember going to the service station, ever being there, buying any gasoline, robbing the man, or fleeing with the loot. In other words, there is a gap of total darkness in this area of recollection. An accused is always entitled to have this defense submitted to the jury if his evidence is sufficient to indicate the degree of intoxication required by KRS 501.080 to prevent his forming an intent to commit the robbery.

We do not reach and pass upon the other issues presented by the appeal, for the alleged errors may not occur upon a retrial of this case.

The judgment is reversed for proceedings consistent with this opinion.

All concur.


author: PALMORE, Justice.

text:
    Harry Curtis ROMANS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.

      Paul G. Tobin, Jefferson Dist. Public Defender, Scott T. Wendelsdorf, Asst. Dist. Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

By separate indictments Harry Curtis Romans, Jr., was charged with the forcible rape of Lois Jean McClellan on, November 24, 1974, and of Doris June Burnett on December 7, 1974. KRS 435.090 (now superseded by the Kentucky Penal Code). Following a denial of his motion for separate trials the two charges were tried together and he was found guilty and sentenced to life imprisonment on each. In this appeal he claims several prejudicial errors.

Romans admitted having had intercourse with Lois McClellan but denied that it was without her consent. His version was that he paid her $25 for the favor. The act took place in the parking lot of a hospital and was interrupted by the approach of a uniformed security guard. Both parties took the guard to be a policeman, whereupon Lois jumped out of the appellant’s car and he drove off. In the course of scrambling away from the automobile Lois fell down and knocked herself out. On cross-examination during the trial she admitted having been previously convicted of soliciting prostitution.

It was not denied that Doris Burnett was raped. Romans simply denied that he was the guilty party or that he had any knowledge of the incident. Doris first identified his photograph from a book at police headquarters and again identified him in a lineup and in the course of her trial testimony. Over objection, the Commonwealth was permitted to show that as a result of the rape she had conceived and borne a child.

On direct examination Romans disclosed that he had served time in the penitentiary for uttering a forged check or checks. At the conclusion of his testimony the court denied his motion that the jury be admonished to consider this information only insofar as it affected his credibility as a witness. In Shockley v. Commonwealth, Ky., 415 S.W.2d 866, 872 (1967), a divided court held that a defendant who voluntarily introduced evidence of his own prior conviction of a felony was not “absolutely” entitled to a limiting admonition. Since that time, however, the principles applicable to the reception of prior felony convictions were reconsidered and restated in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), wherein it was made clear that the fact of such a conviction should never be considered by the jury as substantive evidence tending to enhance the likelihood of his being guilty of the charge or charges presently being tried, and that the only way to protect against its being so considered is to admonish the jury to that effect. Unless he waives it by failing to request it, the defendant is entitled to the admonition and a failure to give it is reversible error. To the extent that it holds otherwise, Shockley may be considered as overruled.

It was prejudicial error also to allow proof that as a result of the rape upon her Doris Burnett had conceived and given birth to a child. No one questioned the fact that she had been raped. The question being tried was whether Romans was the guilty party. That pregnancy ensued from it was utterly irrelevant and obviously calculated to incite the jury, a plain case of reckless overkill. Cf. Jordan v. Commonwealth, 180 Ky. 379, 202 S.W. 896, 898 (1918).

During the course of the trial the Commonwealth was permitted over objection to elicit from a police detective, and also from the defendant himself on cross-examination, that when he was arrested and interrogated and after he had received the Miranda warnings Romans did not come forth with the explanation or story upon which he ultimately relied for his defense, which was that Lois McClellan had prostituted her services to him. This was the most egregious error committed in the trial and, as in the instance of the other two errors we have already mentioned, it was compounded by the prosecuting attorney in his closing remarks to the jury. Rarely does such a proliferation of indefensible blundering crop out in a single trial. The point is so clear that it needs no further discussion. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976).

Some time before the trial counsel for the appellant moved pursuant to RCr 7.24 for the production, among other things, of representative samples of any physical substances taken for testing purposes from the bodies of Lois McClellan and Doris Burnett. The Commonwealth responded in writing that it had none. However, it developed during the trial that hair samples, blood and saliva samples, and vaginal smears had been taken from both women and analyzed at the state police laboratory. The evidence did nothing to help or hurt the appellant, but he moved for a dismissal and contends now that he was deprived of due process of law in that the samples in question could very well have provided exculpatory evidence.

The samples taken from Lois McClellan, of course, were immaterial, since Romans admitted having had intercourse with her. Those taken from Doris Burnett could possibly have contained evidence that he was not the culprit. It was stipulated, however, that the swabbings of spermatozoa from her vaginal cavity “were insufficient to classify into blood types and that all other items of real evidence were inconclusive.” The record does not indicate whether court or counsel ventured an inquiry into whether any of the material was still available or, for instance, whether the samples of pubic hair taken from Doris Burnett contained any hair other than her own. When something like this happens during a trial we think counsel for the aggrieved party must exhaust all reasonably available means to have the error rectified (including, for example, a motion that the trial be recessed until the facts can be ascertained) before he can be in a position to demand a mistrial. If and when the case is retried, the appellant will have an opportunity to explore and explicate the possibility that he was really prejudiced. At this stage, however, we do not perceive enough possibility of it to say that he has been deprived of due process.

The last question pertinent to future proceedings in the case is whether the appellant is entitled to separate trials on the two rape charges. RCr 9.16 requires separate trials if it appears that the defendant will be prejudiced by a joinder. “Prejudice” is a relative term. In the context of a criminal proceeding it can mean only that which is unnecessarily or unreasonably hurtful. It has been observed, for example, that a defendant already is “prejudiced” by having been indicted and by having to stand trial. Ware v. Commonwealth, Ky., 534 S.W.2d 174, 176 (1976). Unfortunately, however, that particular prejudice is unavoidable. It is not always and inevitably prejudicial, in the legal or relative sense of the word, that two separate and unrelated charges of forcible rape against the same defendant be tried together. See, for example, Edwards v. Commonwealth, Ky., 500 S.W.2d 396 (1973).

As the charges brought in this case must be retried anyway, we need not decide whether, with the facts placed before him in support of the motion for separate trials, the trial court did or did not err in denying the motion. However, a post-factum review of the evidence makes it clear that the two charges ought not to be tried together for this reason: In the McClellan case appellant admitted the act of intercourse but claimed it was by consent. That the prosecuting witness had been previously involved in prostitution lent some degree of credence to his defense. It was a matter of his word against hers. In the other case it is undisputed that Miss Burnett was forcibly raped, but he denied being the guilty party. If the jury was convinced that the appellant did in fact rape Miss Burnett, it would for that reason be less inclined to doubt that he did the same thing in the McClellan case. Stated another way, the evidence in the Burnett ease was calculated to and most probably did diminish the credibility of his testimony in the McClellan case. We recognize that to some degree the same will always be true when proof of separate crimes is allowed in a single trial. Where to draw the line depends on the facts of the individual case. In this one it is our judgment that the trials should be separate.

The judgment is reversed with directions that the appellant be granted a new trial under each of the indictments.

All concur.