author: BISSETT, Justice.

text:
    Edward BRYANT et ux., Appellants, v. MISSION MUNICIPAL HOSPITAL, Appellee.
    No. 1411.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 18, 1978.

      Oscar Alvarez, Weslaco, for appellants.
    Kirk L. James, H. Hollis Rankin, Jr., Rankin & Kern, Inc., McAllen, for appellee.
   OPINION

BISSETT, Justice.

The issue presented by this appeal is whether a municipal hospital’s suit to collect upon a debt owed by a paying patient is subject to the defense of limitations. We hold that it is not.

Edward Bryant, hereinafter referred to as the defendant, was admitted to Mission Municipal Hospital, a Division of the City of Mission, hereinafter referred to as the hospital, on December 19, 1973, and treated there until January 9, 1974, during which time he incurred a debt for certain medical goods and services furnished him. Subsequently, the defendant became in arrears in his payments and the hospital brought an action on a sworn account to recover the outstanding amount. Suit, however, was not filed by the hospital until March 1,1976. The defendant pled, among other defenses, the two-year státute of limitations.

Trial was to a jury, which answered all issues in favor of the hospital. The defendant moved the court to disregard certain jury findings, and to render a take nothing judgment against the hospital on the ground that the hospital’s suit was barred by Tex.Rev.Civ.Stat.Ann. 5526(5). The court overruled the defendant’s motion and rendered judgment for the hospital in the amount of $425.70 plus interest and attorney’s fees. The defendant, in two points of error, asserts that the hospital’s suit was barred by the two-year statute of limitations.

The trial court’s action in overruling the defendant’s motion to disregard the jury findings was apparently based on Tex. Rev.Civ.Stat.Ann. 5517, which provides that “the right of the State, all counties, incorporated cities and all school districts shall not be barred by any of the provisions of this Title, . . .” Since June 8, 1953, the effective date of the last amendment to article 5517, limitations do not run against an incorporated city. City of Port Arthur v. Tillman, 398 S.W.2d 750 (Tex.Sup.1965). Both article 5517 and 5526(5) are part of Title 91, which is expressly referred to in article 5517.

In this case, the plaintiff is a municipal hospital and is designated as a division of the City of Mission, an incorporated city. It is owned and operated by the City of Mission through an appointed board of directors and hospital administrator, who are ultimately accountable to the City Council of Mission. Although the hospital stands on its own feet financially, the City of Mission stands ready to serve a supportive function when needed. The money collected in suits of this kind will replenish the general operating fund of the hospital.

It is well settled in Texas that operation and maintenance of a public hospital by a municipality is a governmental function. City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (Tex.Comm’n.App.1937, opinion adopted). In this case, however, the defendant argues that the charging for services rendered by a municipal hospital to a paying patient renders such charging proprietary in nature. He relies on certain language contained in Ritch v. Tarrant County Hospital District, 476 S.W.2d 950 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.). We do not agree. In Ritch, suit was brought against a hospital for the wrongful death of a paying patient. The Court of Civil Appeals affirmed the trial court’s granting of a summary judgment for the defendant on the grounds of governmental immunity. In its opinion, the Court of Civil Appeals voiced its own inclination to hold, were it free to do so, that the hospital would be liable for torts committed against a paying patient on the grounds that, as to such a patient, the hospital is operated in a proprietary capacity. Nevertheless, that Court was compelled by settled law in this State to declare the hospital immune from tort liability, even as to a paying patient. In a per curiam opinion, the Supreme Court-ref used a writ of error to the Court of Civil Appeals with the notation “no reversible error.”

By refusing the writ, “no reversible error,” the Supreme Court, affirmed the judgment of the Court of Civil Appeals; it did not necessarily agree with the Court of Civil Appeals’ characterization of the hospital’s activities as being proprietary in nature. Rule 483, T.R.C.P. Moreover, Ritch was a tort action where the issue was governmental immunity; here, the action is on sworn account and the issue is limitations.

We do not believe that the “paying” status of the defendant in the case at bar has any bearing on whether the hospital was operating in either a governmental or a proprietary capacity. Whether the function performed by a municipally owned hospital is governmental or proprietary should not depend on the paying or non-paying status of a patient. District of Columbia v. Weiss, 263 A.2d 638 (D.C.Ct.App.1970).

The sources which generated and sanctioned the hospital constituted it a division of the City of Mission performing governmental functions. City of Dallas v. Smith, supra. It is, in other words, an arm of the city created to administer the enumerated governmental functions delegated to it. Because incorporated cities are expressly exempt from the defense of limitations, and the hospital in the case at bar is an arm of the city created to perform a governmental function, it seems to us that suits brought by the hospital should likewise be exempt from the defense of limitations. See Lewis Cox & Son, Inc. v. High Plains Underground Water Conservation District No. 1, 538 S.W.2d 659 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.).

It is established by the record that the operation and maintenance of the Mission Municipal Hospital is in the interest of the general public, and is not operated and maintained primarily for the benefit of the residents of the City of Mission. The “charging” and “billing” by the hospital for services furnished its “paying” patients does not change its operation from a governmental function to a proprietary function. The claim sued on is not barred by the two-year statute of limitations. Both of defendant’s points are overruled.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Sheila Marie McDonald ROBERTS, Appellant, v. Ernest A. TATUM, Appellee.
    No. 1316.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 21, 1978.
    Rehearing Denied Jan. 11, 1979.

      Lee Mahoney, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellant.
    Guy Allison, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is a suit for damages brought by appellee, Ernest A. Tatum against appellant, Sheila Marie McDonald Roberts, for injuries sustained as a result of a rear-end collision. Appellant Roberts admitted negligence, in the trial court and requested a trial on the issue of damages only. Trial was to a jury. The jury returned verdict in the amount of $278,000.00 which was rendered against Roberts, who appeals.

The complaints on appeal are directed to the jury’s answers to special issues 1, 2, and 3, subsections (a) through (f). The jury in answer to the several elements of damages inquired about, found the following amounts would reasonably compensate the appellee for his injuries:

1 $500.00 for necessary medical and hospital care received in the past;

2 $13,500 for medical and hospital care in the future;

3(a) $7,000 for physical pain and mental anguish in the past;

3(b) $25,000 for physical pain and mental anguish which in reasonable probability he will sustain in the future;

3(c) $67,000 for loss of earning capacity in the past;

3(d) $90,000 for loss of earning capacity which in reasonable probability he will sustain in the future;

3(e) $25,000 for physical impairment in the past;

3(f) $50,000 for physical impairment which in reasonable probability, he will sustain in the future.

These jury awards are generally attacked by “no evidence”, “factual insufficient evidence” and “against the great weight and preponderance of the evidence” points. We shall consider the legal insufficiency points according to the tests in Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975). And we will apply to the factual insufficiency points the rule in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.Sup.1951). In sum, though, appellant’s arguments under these points of error are not that the awards are totally unsupported by the evidence, but rather that the awards are excessive and show that the appellant did not receive a fair trial. In addition, appellant brings three points concerning the trial court’s improper admission and exclusion of certain evidence. Accordingly, appellant prays for a reversal and remand for a new trial, or in the alternative, that we require a remittitur by the appellee of $185,123.94.

In determining whether a verdict is excessive, the court must review only that evidence favorable to the verdict and the jury’s determination will not be disturbed as excessive where there is any evidence to sustain it. Southern Pac. Transp. Co. v. Peralez, 546 S.W.2d 88, 98 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.); Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.). There must be some proof, circumstantial or direct, of bias or prejudice, and in the absence of such proof, this Court is required to give every inference to the evidence in favor of the verdict. Southern Pac. Transp. v. Peralez, supra at 98.

A fair summary of the background facts shows these events and circumstances. The accident made the basis of this lawsuit occurred on January 6, 1973, on the ferry which transports persons and vehicles across the ship channel at Port Aransas, Texas. Appellee, a resident of San Antonio, was parked on the Ferry in his pick-up truck when appellant’s vehicle struck his truck in the rear. The force of the collision was sufficient to cause major damage to both vehicles.

During the accident appellee’s neck was thrown forward into the steering wheel, causing a bruise on his throat and other unknown injuries. Following the accident, Tatum visited Dr. Walthall, who had been his doctor for 42 years. Dr. Walthall x-rayed the appellee’s back and prescribed medication. A few days later, appellee’s condition began to worsen with increasing neck and arm pain and Dr. Walthall sent him to see Dr. Branch, an orthopedic surgeon. Dr. Branch examined the appellee and prescribed a soft collar. Dr. Branch then recommended that appellee be tested with a myelogram. When the possible dangers of the myelogram, namely, death or paralysis, were explained to the appellee, he refused the test. Since that time the appel-lee has not entered the hospital but has visited Dr. Walthall for examination and medication of his neck, back and arms.

Prior to the accident herein, appellee was in excellent health with respect to his neck and arms. He had no difficulty performing his job as a switchman with the Missouri, Kansas and Texas Railway Company. This job involved climbing, stooping and bending. Appellee had previously gardened, fished, scuba dived, hunted, flown airplanes, driven his dump truck, both for hire as well as for personal tasks, and performed odd jobs as a carpenter and as an auto and airplane mechanic. All in all, he was a powerful, robust, active, manually-orientated person who enjoyed work and play.

Since the accident, though, he has ceased to enjoy the activities referred to previously. Any physical exertion causes pain. He is no longer able to work and will be unable to do so in the future. He also experiences numbness in his right hand, burning sensation in his arms, and tends to drop things from his hands. He is unable to turn his neck and head so that it is virtually impossible for him to safely operate his dump truck. He now spends most of his time lying around the house.

At trial, Dr. Walthall testified that the appellee’s x-rays showed that as a result of the accident, appellant had ruptured two discs and probably a third in his neck. This damage was causing atrophy of the muscles in his right arm, irregular curvature of the appellee’s spine and daily pain and discomfort.

Appellant brings forward twenty-nine points of error. Appellant’s first eight points complain that the jury’s awards for past and future medical expenses is excessive and shows bias and prejudice and that the awards are not supported by legally and factually sufficient evidence. She also complains, in points 27 and 28, that the testimony of Dr. Walthall concerning the cost of future surgery should not have been admitted.

As to past medical expenses, appellant argues that the testimony shows damages of only $370.45. But the record shows otherwise. Appellant’s counsel introduced evidence about medical bills which totalled $216.45 for the period from the date of the accident until sometime in April of 1973. Apparently, $43.00 of this amount represented Dr. Walthall’s bills. As of August 25, 1973, Dr. Walthall’s total bill from the time of the accident was $68.00, thus, from April 1973 to August 25, 1973, his bill was $¿.00. From August of 1973 to the date of Dr. Walthall’s deposition, sometime in 1975 or 1976, Tatum visited Dr. Walthall ten or fifteen times at $13.00 per visit causing a bill of somewhere between $130.00 and $195.00. Assuming fifteen visits was the correct number, the total would be $441.45 ($195.00 plus $216.45) from the date of the accident to the time of Dr. Walthall’s deposition. Appellant’s counsel, then asked Dr. Walthall if $268.00 represented his total bill from 1973 to the date of the trial, i. e. May 23, 1977. Dr. Walthall replied, “That sounds about right. You are doing the addition.” But, considering only the evidence favorable to the verdict, there remained a gap in Dr. Walthall’s bills from the time of his deposition in 1976 to the time of trial. The record reflects that appellee stated that in the few years prior to trial he had visited Dr. Walthall for his neck problem at least once a month and sometimes more often. This means that prior to the trial on May 23, 1977, appellee visited Dr. Walthall at least five times multiplied times $13.00 per visit or $65.00, bringing the total bill to $506.45 ($441.45 plus $65.00). And, if Dr. Walthall’s deposition were taken in the early part of 1976 this amount would be much greater. We find no bias or prejudice in the jury’s granting $500.00 damages for past medical expenses.

About appellant’s complaints of the award of $13,500 for future medical expenses, the record demonstrates the following. Dr. Walthall testified that he had no quarrel with the U.S. Government Life Expectancy Table which predicted that a man aged 65 would live an additional 17.2 years. Appellee was 65 years old at the time of trial. Dr. Walthall further testified that assuming no further surgery were performed he expected appellee to incur $500.00 medical expenses per year after the trial. In other words, appellant would incur $8,600.00 medical expenses over the period of his expected life. If surgery were performed, Dr. Walthall expected appellee’s yearly expenses to increase considerably over his $500.00 per year estimate. He further testified that in “reasonable medical probability” appellee would need back surgery in the future. Such surgery, Dr. Walthall estimated, would cost $10,000.00 or $1,000.00 per day for ten days. Thus, the surgery and future yearly expenses would total at least $18,600.00 or $5,100.00 more than the jury’s award. Appellant argues, however, that the testimony concerning the cost of the surgery should not have been allowed and should have been stricken when requested because Dr. Walthall could only guess as to how much of the $10,000.00 surgery estimate would represent surgeon’s fees. We find no reversible error for two reasons. First, Dr. Walthall’s testimony that the cost of surgery would be approximately $1,000.00 per day was admissible because he stated it was based upon past experience observed from others receiving neurological surgery in San Antonio. The fact that an expert’s opinion is based upon observation and past experience does not render it inadmissible. City of Arlington v. Tex. Elec. Serv. Co., 540 S.W.2d 580, 584 (Tex.Civ.App.—Fort Worth 1976 writ ref’d n.r.e.); Coffee v. William Marsh Rice University, 408 S.W.2d 269, 285 (Tex.Civ.App.—Houston 1966, writ ref’d n.r.e.). Moreover, just because an expert cannot state all supportive data for a conclusion does not negative all probative value of the statement but goes more to the weight to be given the opinion. See Texas Elec. Service Co., v. Wheeler, 551 S.W.2d 341 (Tex.Sup.1977). Secondly, even if we were to assume that Dr. Walthall’s testimony concerning the total cost of surgery was not admissible, his testimony concerning specific items of the hospital stay, e. g. room costs and medications, show at least a $3,600.00 expense for a ten-day stay. This would total $12,-200.00 ($8,600 plus $3,600) for future medical expenses when coupled with Tatum’s yearly maintenance expenses, even if we assume no surgery. The jury, however, was not bound by the life expectancy tables. Greyhound Lines, Inc. v. Craig, 430 S.W.2d 573 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). The jury could have, under the facts of this case, determined that the appellee would live longer than 17.2 additional years and could have awarded additional compensation for future medical fees. Furthermore, the jury was free to award greater than $500.00 per year assuming the appellee would receive surgery in the future. Thus, even if Dr. Walt-hall’s testimony concerning the total cost of surgery was too speculative, we find no reversible error. Rule 434, T.R.C.P. Appellant’s points 1 through 8 and 27 and 28 are overruled.

Next, appellant argues in points 9, 10 and 11 that the jury’s award for future physical pain and mental anguish is predicated upon legally and factually insufficient evidence and is excessive and shows an unfair trial. We disagree. Appellant argues that the average per annum award for pain and suffering prior to trial is less than the average award per annum after trial, and that these average per annum awards must be the same because all the testimony shows that the appellee’s condition will remain the same. First, appellant’s argument incorrectly assumes that the appellee’s life expectancy is 12.7 years from the date of trial; it is actually 17.2 years. Secondly, appellant assumes that all of the testimony shows that appellee’s condition will remain the same. To the contrary there is testimony by both the appellee and Dr. Walthall which indicates that the appellee’s condition is worsening and will probably worsen in the future. Thus, appellant’s points 9, 10 and 11 are overruled.

Appellant’s points 12 through 17 assert that the jury’s awards for past and future loss of earning capacity are based upon legally and factually insufficient evidence and are excessive and show an unfair trial.

As to loss of past earning capacity, the evidence shows that a switchman working for the railroad which previously employed the appellee earned about $14,-000.00 in 1973, $15,000.00 in 1974 and $16,-000.00 in 1975. There is no indication of the salaries in 1976 or 1977. Appellant argues that by taking the average earnings of a railroad switchman for the years 1973 through 1975, i. e. about $15,000.00 and multiplying that amount times four, since appellee was going to retire at the age of 65, his age at the beginning of 1977, that the award would only be $60,000.00, instead of $67,000.00. Appellant’s result is incorrect. First, the incomes prior to trial were increasing at about $1,000.00 per year after 1973. The jury was entitled to consider the constant decrease in the value of the dollar and commensurate increase in salaries. See Southern Pac. Transp. Co. v. Peralez, supra. Moreover, in testifying before the jury, ap-pellee stated that he did not know whether he would retire at age 65 or not and that the railroad would have allowed him to work until age 80 if he maintained his health. Thus, assuming continuing increases of salary and a decision to continue working after age 65, the jury could easily find a loss in earning capacity for the 4¾⅞ years between the accident and trial far in excess of the $67,000.00 they awarded.

As far as loss of future earning capacity is concerned, appellant contends that the jury could only speculate as to the $90,000.00 award. This contention is without merit. During the trial, a truck driver testified that in 1970 he could make between $15,000.00 and $19,000.00 per year. This evidence, coupled with the evidence concerning the railroad salaries available to the appellee show that in the future the appellee possessed capacity to earn amounts much greater than $90,000.00 working for either the railroad or driving his dump truck or any other truck. Appellant’s points 12 through 17 are overruled.

We next consider the assertions in points 18 through 25 that the award of $25,000.00 for physical impairment in the past and $50,000.00 for physical impairment in the future are founded upon legally and factually insufficient evidence and are excessive and show an unfair trial.

Appellant argues primarily that the per annum award for the past physical impairment should equal the per annum award for future physical impairment based upon life expectancy. The law on the matter does not bear out this argument. The jury is not constrained to making precise mathematical comparisons, or to finding with mathematical certainty equality of damages on a per annum basis for past physical impairment and future physical impairment. Compare City of Houston v. Jean, 517 S.W.2d 596, 602 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.); Broesche v. Bullock, 427 S.W.2d 89, 97 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). Because personal injury damages are unliquidated and not capable of measurement by a certain standard, the jury has large discretion in fixing the amount of the award. Southern Pac. Transp. Co. v. Peralez, supra at 98.

We think the record shows that the appellee was a very active person outside of his work with the railroad prior to the accident, and that all of his previously enumerated activities were curtailed after the accident. Granted, the appellee still attempts some menial tasks, but the record shows he suffers severe pain and discomfort every time he does so. We find no basis in the record to sustain these points. Compare French v. Grigsby, 567 S.W.2d 604, 607 (Tex.Civ.App.—Beaumont 1978, writ ref’d n.r.e.). Appellant’s points 18 through 25 are overruled.

Appellant’s point 29 contends that all of the amounts awarded to the appellee were so excessive as to show the denial of a fair trial. In light of our prior discussions, we overrule her point 29.

Finally, appellant argues in point 26 that the trial court erred in sustaining appellee’s motion in limine and in not allowing the appellant to introduce any testimony concerning the appellee’s retirement from the railroad. The appellant did not, however, properly preserve error. Before a party can correctly claim error on the suppression of evidence by a motion in limine, the party must offer the evidence and secure an adverse ruling from the court. City of Corpus Christi v. Nemec, 404 S.W.2d 834 (Tex.Civ.App.—Corpus Christi 1966, no writ). See also Commercial Insurance Co. of Newark, N. J. v. Lane, 480 S.W.2d 781 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r. e.). We find no indication in the record that the appellant attempted to introduce this retirement testimony to the court. Appellant’s point 26 is overruled.

The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Pearl BUTTERY, Appellant, v. Mrs. Lee BUSH, Appellee.
    No. 1174.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 21, 1978.
    Rehearing Denied Jan. 11, 1979.

      James H. Pearl, Casseb, Leon, Rodgers, Strong & Pearl, San Antonio, for appellant.
    Craig C. Radtke, Edward G. Marion, Jr., Hollon & Marion, Boerne, for appellee.
   McKAY, Justice.

This is a declaratory judgment action by a lessor to have a lease of real property declared void and to declare the rights of the parties. Trial was to the court which granted judgment to the lessee based upon a plea of res judicata. The lessor now appeals.

Appellant Pearl Buttery, known also as Mrs. Miles Buttery, plaintiff below, owns a certain piece of real property located on the southwest corner of Main and Berry Streets in the city of Llano. Since at least 1961 the building located on that property has been used as a washateria. In that year, W. L. Bush, deceased husband of appellee, began operation of the business there. On October 23, 1970, appellant and W. L. Bush executed a written instrument, denominated a “contract” and dated October 19, 1970, whereby appellant agreed to lease the property at the northeast corner of said intersection, “known as a gasoline station,” to W. L. Bush for a period of five years from the date thereof, the consideration therefor to be fifty dollars ($50.00) per month beginning November 1, 1970. Appellant also granted Bush an option to renew the lease for an additional period of five years. There is no dispute that the property actually used by W. L. Bush and appellee and for which they have paid monthly rental under the lease is the southwest corner of the intersection. W. L. Bush died on April 29, 1971, before the expiration of the primary term of the lease. Although Bush had a will naming appellee as executrix, it has not been admitted to probate. On October 28, 1975, appellee attempted to exercise the option to renew the lease by notifying appellant by letter of her election to do so and enclosing a cashier’s check for the rental for the month beginning November 1, 1975. Appellant refused to accept the check and returned it to appellee. Appellee continued sending the monthly rental by cashier’s checks at least until the time of trial, but appellant never negotiated any of them.

On March 15, 1976, appellant instituted an action of forcible entry and detainer for possession of the property involved here (the southwest corner of the intersection, on which the washateria is located) in the Justice Court, Precinct One, Llano County. Judgment for possession was entered on April 9, 1976, in favor of appellee. Appellant then instituted this action in the district court on July 12,1976, against appellee to have the lease instrument and the attempted exercise of the option declared void. Appellee answered by general denial and interposed the affirmative defense of res judicata, citing the justice court judgment and alleging the parties and the issues therein to be identical to those involved here. A hearing was had before the court without a jury. Appellee was the only witness called and examined and the facts as generally set out above were established. At the conclusion of the testimony, appellee moved for judgment on her plea of res judicata. Judgment was entered sustaining the motion and denying appellant all relief. It is from this judgment that appellant has duly perfected her appeal.

The question presented here by appellant’s first point is whether a suit seeking a judgment declaring the rights of the parties to a written lease and renewal option on the premises in question is barred by res judica-ta because of the suit and judgment for possession in the justice court. There is also a prayer for general relief, but there is no pleading or prayer for immediate or actual possession. Art. 2524-1, Uniform Declaratory Judgment Act, sec. 2, provides:

“Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

Section 5 of Art. 2524-1 provides that the enumeration in sections 2, 3, and 4 does not limit or restrict the general powers conferred on the courts in section 1, and section 6 provides the court may refuse to render a declaratory judgment when such judgment would not terminate the uncertainty or controversy giving rise to the proceeding.

There are a number of Texas cases which hold that a justice court or a county court judgment in a forcible detainer suit is res judicata on the issue of the right to possession of the premises involved, and another suit may not be brought in another court which would again put in issue the right of possession. In those cases it was determined that the same issue, i. e., the right of actual possession, was directly litigated in a subsequent suit between the same parties, involving the same premises which had been litigated in a forcible detainer suit in the justice or county court, and such subsequent suit was barred by res judicata. In the instant case the right to actual possession is not directly at issue; moreover, if appellant here eventually prevails by obtaining a favorable construction of the lease or the option to extend, it will be necessary for her to take further steps to gain possession of the premises if she can do so. Art. 2524-1, sec. 8.

In the recent case of Martinez v. Beasley, 572 S.W.2d 83 (Tex.Civ.App.—Corpus Christi 1978, no writ), it was held that (p. 85) “a judgment of possession in a forcible detainer action is a determination only of the right to Immediate possession of the premises, and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question.” [Emphasis added.] Martinez was a suit to cancel a deed of trust which would affect the title to the property there; however, the language of the opinion is not restricted to that type suit or to those named in Art. 3994. It has been held that the word “trespass” in Art. 3994 includes a suit for trespass to try title, and such a title suit filed subsequently on the same premises is not barred by a previous judgment on the issue of possession in county court.

“[T]he issue of temporary possession alone is adjudicated in the Justice Court in the Forcible Entry and Detainer action and it is not res judicata of an action to recover title brought in the District Court.
“Also, a Forcible Entry and Detainer action being one to determine only the issue of possession and damages, the judgment in such a case cannot be res judicata of other rights the parties may have, such as for breach of contract, profits, or waste.” 6A Texas Practice, Lowe, Remedies, sec. 1042, Forcible Entry and Detainer, p. 29 (1973).

The action for forcible detainer is strictly possessory in its nature — therefore, ordinarily the immediate right of possession is all that is involved or can be determined. 36A C.J.S. Forcible Entry and Detainer, § 3, p. 963; Martinez v. Beasley, supra; Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.).

This suit is not an action seeking the immediate right to possession or the right to actual possession. It is a suit under the Uniform Declaratory Judgments Act to obtain a declaration of rights. We hold that the justice court judgment involved here was not res judicata of the instant suit for declaratory judgment.

Appellant’s other points of error were not ruled on by the trial court, and we do not reach them.

The judgment of the trial court is reversed, and the cause is remanded to that court.

      . All statutory references are to Texas Revised Civil Statutes, unless otherwise indicated.

      . Rankin v. Hooks, 81 S.W. 1005 (Tex.Civ.App.-Dallas 1904, no writ); Slay v. Fugitt, 302 S.W.2d 698 (Tex.Civ.App.—Dallas 1957, writ ref'd n. r. e.); Young Women’s Christian Association of Austin, Texas v. Hair, 165 S.W.2d 238 (Tex.Civ.App.—Austin 1942, writ ref’d w. o. m.); Glau-Moya Parapsychology Training Institute, Inc. v. Royal Life Insurance Co., 507 S.W.2d 824 (Tex.Civ.App.—San Antonio 1974, no writ).


author: DICKENSON, Justice.

text:
    Melvin NIELL and Kathlee Niell, Appellants, v. Don MOONEY, Appellee.
    No. 5225.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 21, 1978.
    Rehearing Denied Jan. 11, 1979.
    Carol Campbell, Anderson, Martin & Rodriguez, Wichita Falls, for appellants.
    William H. Heatly, Heatly & Heatly, Pa-ducah, for appellee.
   DICKENSON, Justice.

Producers Grain Corporation secured a judgment against Melvin and Kathlee Niell. Don Mooney, Sheriff of Baylor County, failed to levy upon the Niells’ property, and Producers filed a motion under Article 3825, Tex.Rev.Civ.Stat.Ann. (1966), to make him pay the judgment. Producers’ motion was granted; judgment was entered against Mooney; and that judgment was affirmed. Mooney v. Producers Grain Corporation, 531 S.W.2d 699 (Tex.Civ.App.—Amarillo 1975, no writ). Mooney then paid the full amount of that judgment, and he sued Melvin and Kathlee Niell under the theory of subrogation to recover the money which he had been required to pay their judgment creditor. Summary judgment was granted in favor of the Sheriff, and the Niells appealed. This court held that the summary judgment proof did not establish that Mooney had paid the judgment. Niell v. Mooney, 555 S.W.2d 160 (Tex.Civ.App.—Eastland 1977, no writ). The case was then tried upon the merits, and the jury found that Mooney had paid in full the judgment of Producers Grain Corporation against Melvin and Kathlee Niell. Judgment was rendered on the verdict for the sum of $11,131.33 plus interest and court costs. Melvin and Kathlee Niell appeal. We affirm.

The Niells’ first- point of error is that, as a matter of law, Mooney is not entitled to subrogation to the rights of the judgment creditor against them. We disagree. This court said in E. Y. Chambers & Co. v. Little, 21 S.W.2d 17 (Tex.Civ.App.—Eastland 1929, writ ref’d) that:

Subrogation is said to be the substitution of another person in the place of a creditor to whom such person succeeds. The principle has a very liberal application. Judge Story, in his work on Equity Jurisprudence, characterizes this principle as “a doctrine belonging to an age of enlightened policy and refined, although natural, justice.”

The opinion in Chambers cites the case of Galbraith-Foxworth Lumber Co. v. Long, 5 S.W.2d 162 (Tex.Civ.App.—Dallas 1928, writ ref’d), which states:

A court of equity, when it becomes necessary to do exact justice between parties in a given transaction, may place one of these parties, to whom a legal right does not belong, in the position of a party to whom the legal right does belong. This mode, adopted for the purpose of doing justice, is termed “subrogation.” . This doctrine is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment and in discharge of an existing liability. . . . The right of subrogation is not dependent upon contract, agreement, or stipulation, or upon privity or strict suretyship; but it is a mode which equity adopts to compel the ultimate payment of a debt, by one who, in justice, equity, good conscience, ought to pay it. .

We hold that the sheriff is entitled to subrogation rights against the judgment debtors since he was required to pay their obligation to the judgment creditor under the provisions of Article 3825, supra, which reads as follows:

Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties.

All of the other points of error concern the jury’s finding that Mooney paid the judgment of Producers Grain Corporation against Melvin and Kathlee Niell. The Niells’ points claim (1) that there was no evidence to support that finding; (2) that the evidence was conclusively to the contrary; (3) that the evidence was factually insufficient; and (4) that the finding was against the great weight and preponderance of the evidence. We disagree. All of those points of error are overruled. On the “no evidence” points, we have reviewed the record under Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), considering only the evidence and inferences which support that finding. On the “insufficient evidence” points, we have reviewed all of the evidence as required by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). There is evidence, and it is factually sufficient, to support that finding of the jury. The record shows that Producers recovered a judgment against the Niells and that Mooney was required by law to pay the full amount of that judgment. Even though Mooney did not obtain an assignment from Producers, the record is clear that he paid the full amount of the judgment. Producers is entitled to have its debt paid, but it has no right to a double payment of the judgment. Having paid the Niells’ obligation for them, Mooney is entitled to recover from them. This principle was recognized in the early case of Sayles v. Taylor, 36 Tex. 307 (1871).

The judgment is affirmed.


author: WILHOIT, Judge.

text:
    CITY OF TAYLOR MILL, Appellant, v. CITY OF COVINGTON, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1978.
    Rehearing Denied Nov. 17, 1978.
    Discretionary Review Denied Jan. 30, 1979.
    Frank A. Wichmann, Covington, for appellant.
    Sheryl G. Snyder, A. Wallace Grafton, Jr., Wyatt, Grafton & Sloss, Louisville, Douglas M. Stephens, Charles P. Wagner, Covington, for appellee.
    Before GANT, HOGGE and WILHOIT, Judges.
   WILHOIT, Judge.

Appellant, City of Taylor Mill, appeals from a judgment of the Kenton Circuit Court holding that certain territory, which both it and the appellee, City of Covington, claim to have annexed, was annexed by and is now a part of the City of Covington.

This controversy began in .1971 when the City of Covington, a second class city, passed an ordinance proposing to annex certain unincorporated territory in Kenton County. The residents of this territory filed a remonstrance action in the circuit court. This action was styled Clifton v. Covington. Thereafter, the City of Taylor Mill enacted an ordinance proposing to annex the same territory. Taylor Mill filed an action in the circuit court styled City of Taylor Mill v. City of Covington in which it sought a declaration of the rights of the two cities to the territory. The circuit court entered judgments in favor of Cov-ington in both of these suits. The Supreme Court of Kentucky affirmed those judgments in an unpublished opinion rendered on February 20,1976. The mandates of the Supreme Court were delayed by the filing of a petition for rehearing in each case. Before the mandates issued, the General Assembly enacted KRS 81.145 which became effective June 19, 1976. The provisions of this statute are as follows:

In counties in which there are located both a city of the second class and a city of the third class, twenty-five per cent (25%) of the freeholders of an unincorporated area .annexed by a city of the second class pursuant to a judgment of the circuit court or court of final disposition acting on petition or appeal of such annexation, may, within six (6) months of the effective date of the final annexing ordinance by the governing body of the city of the second class, petition the county clerk to place the following question on the ballots in the area at the next regular election: “Shall the area described in Ordinance _ of the City of _remain a part of the City of _?” Upon the receipt of such a petition, the county clerk shall, at the next regular election cause the question to be placed upon the ballots in the area annexed. If more than seventy-five per cent (75?) of the qualified voters answer the question “no” then the ordinance indicated in the question shall be void and of no effect upon the certification of the results of the election.

On June 10, 1976, prior to the effective date of this statute and before the issuance of the mandates, the City of Covington passed its second ordinance annexing the disputed area. Within 6 months of the effective date of this ordinance the requisite number of freeholders within the annexed territory petitioned for a referendum pursuant to KRS 81.145. At the regular election held on November 2, 1976, more than 75 percent of the qualified voters answered’ “no” to the question of remaining a part of the City of Covington. The following December, the City of Covington enacted another ordinance annexing the territory in the event that the previous annexation ordinance might have been void because of its enactment prior to the issuance of the mandates by the Supreme Court.

Actions contesting the validity of the annexation by Covington and the validity and effect of the referendum were filed. These actions were consolidated by the circuit court. In its judgment the court held that the territory had been validly annexed by Covington and that the referendum was void because KRS 81.145 violates Section 156 of the Kentucky Constitution. From that judgment this appeal is taken.

The principal question raised on this appeal is whether the circuit court erred in holding that KRS 81.145 is unconstitutional. If this question is answered in the negative then other questions raised will be rendered moot. Section 156 of the constitution provides in relevant part:

The organization and powers of each class [of cities] shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.

Appellee asserts, and appellant does not deny, that Kenton County is the only county in the state containing both a city of the second class and a city of the third class and that the City of Covington is thus the only city to which KRS 81.145 applies. Appellee argues that any statute applying to one or more, but not all, of the cities within a particular class is “blatantly unconstitutional.” In support of this argument appellee cites City of Corbin v. Roaden, Ky., 453 S.W.2d 603 (1970). That case involved KRS 81.195 which provided that a referendum must be held before a third class city located in more than one county could annex unincorporated territory. The Court held that statute conflicted with the requirement of Section 156 “that all cities of the same class ‘shall possess the same powers and be subject to the same restrictions.’ ”

Appellant maintains that City of Corbin, id., and Section 156 have no application to the situation here since KRS 81.145 does not relate to the organization and powers of any city but rather to the rights of freeholders and voters of certain areas. We do not agree and apparently neither did the General Assembly because this statute when enacted was entitled “An Act relating to annexations of unincorporated areas by municipalities.” 1976 Ky. Acts, ch. 383, § 1. The clear import of KRS 81.145 is to place a restriction upon the annexation power of certain cities of the second class, or more properly upon one such city, not placed upon the other cities within that class. This plainly violates Section 156 of the constitution.

Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974), and Pinchback v. Stephens, Ky., 484 S.W.2d 327 (1972), have no application to this case. Those cases involved an urban-county government which was held to be a separate classification of government not forbidden by the constitution; they did not consider powers of and restrictions on similar classes of cities.

Inasmuch as we have determined that the trial court correctly held KRS 81.145 to be constitutionally invalid, it is unnecessary to consider the validity of the annexation ordinance passed on June 10, 1976, because the ordinance which was passed the following December cured any defect in the prior ordinance.

The judgment of the trial court is affirmed.

All concur.


author: COOPER, Judge. PARK, Judge,

text:
    Freddie CAREY, Appellant, v. WASHINGTON COUNTY FISCAL COURT, by and through its members, John W. Logsdon, Judge, Thomas A. Bartley, Magistrate, Julian Kidwell, Magistrate, Edward Russell, Magistrate, Olson Scott, Magistrate, Willis Walker, Magistrate, Ernest Reed Goff, Magistrate, Appellees.
    Court of Appeals of Kentucky.
    May 5, 1978.
    Rehearing Denied Aug. 18, 1978.
    Discretionary Review Denied Jan. 30, 1979.
    H. Edward O’Daniel, Jr., O’Daniel, Mat-tingly & Simms, Springfield, for appellant.
    John W. Kelly, Springfield, for appellees.
    Before COOPER, GANT and PARK, JJ.
   COOPER, Judge.

This is an appeal from a judgment wherein the appellant, Freddie Carey, who was elected coroner of Washington County, seeks a declaration of his right to receive a salary in the amount of $150.00 per month where the original salary was set at $50.00 per month.

On April 3, 1973, the Washington County Fiscal Court fixed the coroner’s salary at $600.00 per year, payable in monthly installments of $50.00. During the said year, the appellant filed for and was elected to said office for a four (4) year term commencing on January 1, 1974.

The 1974 legislature revised and amended KRS 64.185, directing that coroners in counties within population range of Washington County receive a minimum salary of $150.00 per month. The act was to be effective as of July 1, 1974, but did not indicate an intent to provide for an immediate adjustment in salary of county officials covered by the act.

On January 17,1975, the appellant initiated this action demanding that the Washington Circuit Court render a declaratory judgment determining the minimum salary for which he is entitled as Washington County Coroner, and the effective date of minimum monthly compensation of such salary.

The Washington Circuit Court determined, ordered and adjudged that the “rubber. dollar principle” is not applicable in establishing minimum salaries; that the Washington County Fiscal Court is not mandated by KRS 64.185, as amended by the Kentucky General Assembly during its regular 1974 session, to change the minimum monthly salary of the appellant during his present term of office; and that the Washington County Fiscal Court may continue to pay said coroner a minimum monthly salary of $50.00, as fixed by order of said Fiscal Court prior to May of 1973, in compliance with KRS 64.530, for the term of office commencing January, 1974, without change until expiration of said term.

Said judgment was based on a written opinion by the trial judge, a part of which is as follows, to-wit:

The Fiscal Court of Washington County, prior to May, 1973, in compliance with KRS 64.530, fixed the salary of the coroner for the term commencing in January, 1974, at $50.00 per month. Plaintiff was elected coroner at the November, 1973, election and assumed the duties of that office the following January.
Thereafter, the 1974 General Assembly enacted H.B. 426 which provided in part that the minimum coroner’s salary to be fixed by a fiscal court in counties in the class applicable to Washington County should be $150.00 per month and further provided that this Act should become effective July 1, 1974.
The sole question really presented to the court in this case is whether or not H.B. 426 (KRS 64.185) is applicable to the plaintiff insofar as his present term of office is concerned. The plaintiff relies on the so called “rubber dollar” cases to support his claim that the Fiscal Court of Washington County must increase his compensation to a minimum of $150.00 per month despite the provisions of KRS 64.530 and KRS 64.720.
Those cases, however, dealt with situations in which the legislative body which had the authority to fix salaries had in fact increased the salaries involved above the constitutional limit set forth in Section 246 of the Kentucky Constitution. The rationale of those decisions is that there was not increase of change in salaries, but merely an adjustment of salary to compensate for the increased cost of living or inflation and that, therefore, Sections 161 and 235 of the Constitution were not violated.
In this case, however, the legislative body specifically authorized by statute to fix the salary has not seen fit to make an adjustment and this court feels that the Washington County Fiscal Court is justified in relying upon the provisions of Sections 161 and 235 of the Constitution of Kentucky and KRS 64.530 in not changing the salary of the coroner during his present term.

With this we agree.

It is clear that the rubber dollar doctrine is applicable to county officers. Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). However, it is also clear that the legislature must act affirmatively in order to put the rubber dollar doctrine into application. Meade County v. Neafus, Ky., 395 S.W.2d 573 (1965). Under Section 106 of the Kentucky Constitution, the legislature had the right to set the minimum salary payable to coroners. However, in order to avoid the restrictions contained in Sections 161 and 235 of the Constitution and KRS 64.530 against changes in salary during the coroner’s term, it would be necessary to show that the 1974 amendment increasing the minimum salary from $50.00 per month to $150.00 per month was pursuant to the rubber dollar doctrine.

The changing of the salary during the elected term without applying the rubber dollar doctrine would violate both constitutional and statutory prohibitions against the changing of the compensation during the elected term.

The judgment is affirmed.

GANT, J., concurs.

PARK, J., concurs by separate opinion.

PARK, Judge,

concurring.-

For many years, coroners were paid on a fee basis. In 1956, the legislature established a schedule of minimum salaries to be paid by counties graduated according to population, with authority in the counties to pay salaries in excess of the statutory minimum. City of Lexington v. Hager, Ky., 337 S.W.2d 27, 30 (1960); 1956 Ky.Acts, ch. 143. Under the 1956 legislation, Carey was entitled to a minimum monthly salary of $50.00 per month as coroner (based upon the population of Washington County). If the 1974 amendment to KRS 64.530 applied to Carey, increasing his minimum monthly salary from $50.00 to $150.00, there would be a violation of sections 161 and 235 of the Kentucky Constitution unless the increase can be justified under the “rubber dollar” doctrine. Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). However, there is nothing in the present record that indicates that the minimum salary fixed by the 1974 legislation equals, in real value, the minimum salary fixed by the legislature in 1956. This court cannot assume that fifty 1956 dollars equal one hundred fifty 1974 dollars.

Because of an absence of any proof justifying application of the “rubber dollar” doctrine, I concur in the result reached by the majority opinion to affirm the judgment of the circuit court.


author: HOGGE, Judge.

text:
    Gary D. SHANKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 14, 1978.
    Rehearing Denied Sept. 22, 1978.
    Discretionary Review Denied Jan. 30, 1979.

      Mark A. Posnansky, Asst. Public Defender, Commonwealth of Kentucky, Jack Emory Farley, Public Defender, Commonwealth of Kentucky, Frankfort, for appellant.
    Victor Fox, Asst. Atty. Gen., Robert F. Stephens, Atty. Gen., Frankfort, for appel-lee.
    Before HOGGE, HAYES and REYNOLDS, JJ.
   HOGGE, Judge.

This is an appeal from a judgment of the Fayette Circuit Court sentencing the appellant, Gary D. Shanks, to ten years in the penitentiary on his conviction for three counts of robbery in the first degree. On this appeal, Shanks raises certain issues with respect to the pretrial showup and lineup procedure, and denial of his motion for a continuance.

On October 20, 1976, three Indiana residents, Duard Leach, Richard Vance, and Harold Greathouse, were robbed in a Lexington hotel room by two armed men. One of the two men, whom Leach and Vance identified as Freddie Lynem, met the three victims who were attending the races at Keeneland and offered to help them get a room at the University Inn. After purchasing some liquor, the three companions and the stranger proceeded to the University Inn, where Leach, Vance, and Greathouse registered. According to the testimony of Leach and Vance, the new acquaintance then offered to take Vance’s car and bring back some party girls. When he returned he had a companion, and the two men, who were armed, took cash from Leach, Vance, and Greathouse.

Later that evening, Leach and Vance identified appellant and Lynem as the perpetrators of the offense on the basis of police photographs. The appellant testified that the next morning while he was in court on an unrelated matter, a detective was sitting there with three other people, whom he could not now identify because he was not paying attention. The detective was pointing at him. Appellant also stated that the victims saw him being brought in by the guards prior to lineup. However, Mr. Vance and Mr. Leach denied having seen Shanks other than during the robbery, at the lineup, and on the day of trial.

At the trial appellant denied having anything to do with the robbery. He maintained that he had spent the time in question with his girlfriend, Lana Caldwell, and that they had attempted to get a room at University Inn, but were there for no other purpose. The testimony regarding the attempt to obtain a room was corroborated by Miss Caldwell and a motel maintenance man.

The appellant was convicted of robbery in the first degree and received a sentence of ten years. He now appeals.

The first issue raised is whether the lineup procedure was unduly suggestive, and whether it was improperly conducted without the presence of counsel. An attorney, whom officers believed to represent appellant, a Mr. Larson, asked for the holding of a lineup and indicated that he would not be able to be present. The appellant contends that these facts are not sufficient to show a valid waiver of right to counsel if one existed, and this is not disputed by the appellee. Meekey v. Commonwealth, Ky., 467 S.W.2d 360 (1971).

The lineup in this case was held about a month after the offense was committed and the arrest was made, but before the preliminary hearing. The right to counsel in post-indictment lineups was established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), however, it was held that the right to counsel did not apply to an identification made shortly after arrest and before the defendant was formally charged with a criminal offense. In Kirby general principles regarding the right to counsel were discussed:

In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

It is not altogether clear from the record as to the relative timing of the lineup proceedings and the preliminary hearing. However, on oral argument, it was developed that the identification was made prior to the preliminary hearing.

The constitutional right to counsel attaches at or after the time that adversary judicial proceedings have been initiated. Kirby, supra; Moore v. Illinois, 429 U.S. 1061, 97 S.Ct. 783, 50 L.Ed.2d 776 (1977). Here the preliminary hearing was the initiation of an adversary judicial proceeding. Since the identification was made prior to the adversary judicial proceeding, we hold that the appellant’s constitutional right to counsel was not violated in this case. Kirby, supra; Moore, supra. At this preliminary hearing, the charges against the appellant were dismissed, but he was subsequently indicted.

The appellant further contends that the trial court erred in admitting evidence of the lineup for the reason that the lineup “may have been tainted” by the witnesses having seen the appellant in court prior to the lineup. This assertion is based on the fact that the victims were in the vicinity of the courtroom on the same day appellant was in court and that the appellant testified that he saw a detective point to him while accompanied by three people. Appellant testified that he did not know whether these people were the prosecuting witnesses or not. There was testimony from both of the two identifying witnesses that they had never seen appellant other than at the robbery and in the lineup. We hold that in view of the foregoing evidence, there was no error in admitting the lineup identification.

The remaining issue raised by the appellant is whether prejudicial error was committed when he was denied a continuance in order to obtain the testimony of Freddie Lynem, who allegedly would have testified that he had committed the offense himself and that Shanks had had no part in it. The motion for continuance was accompanied by an affidavit to the effect that the parties had stipulated that Lynem, if present, would testify “that Gary Shanks did not commit any robbery.” The trial court overruled the motion and read the contents of the affidavit to the jury. Appellant now contends that mere reading of the affidavit was not sufficient for the reason that it did not have the impact of an admission by Lynem in person that he himself committed the crime.

However, after the trial court overruled the motion for a continuance and announced Ms intention to read the affidavit, counsel for the appellant stated, “All right, sir. I don’t have any objection to that overruling.” This statement waived any objection which the appellant may have had, and in view of the reading of the affidavit, submitted by appellant’s counsel with his motion for continuance, we cannot say that any manifest injustice has occurred. CR 61.02.

The judgment is affirmed.

All concur.


author: GANT, Judge.

text:
    Henry WILEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. CA-1902-MR.
    Court of Appeals of Kentucky.
    Aug. 4, 1978.
    Discretionary Review Denied Jan. 30, 1979.

      Jack Emory Farley, Public Defender, Commonwealth of Kentucky, M. Gail Robinson, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before GANT, HOGGE and WINTER-SHEIMER, JJ.
   GANT, Judge.

Appellant was convicted on two counts of trafficking in a controlled substance (heroin) and sentenced to five years on each count.

The first error assigned for reversal is that appellant was placed in jeopardy twice because a mistrial was improperly declared at his first trial and over his objection. The facts occasioning the mistrial were simple. While the defendant was on the stand on redirect examination, the following colloquy occurred between his attorney and the appellant:

RDQ 1. Henry, you’ve been in the penitentiary a long time, haven’t you?
A. Yes, sir.
RDQ 2. And every time you were convicted and sent to the penitentiary did you plead guilty?
A. Pled guilty every time.
RDQ 3. Did you ever go to trial on any charge?
A. No, sir.
RDQ 4. Did' you go to trial on a charge in Cincinnati?
A. No, sir.
RDQ 5. Why are you going to trial on this case?
A. Because I haven’t did (sic) anything. Every time I did a crime I have admitted it. They offered me five years on this and I wouldn’t take it.

At this point, the Commonwealth moved for a mistrial, which motion was granted, counsel for appellant urging the court that an admonition to the jury would suffice. The jury was thereafter dismissed, appellant entering his formal objection. The case was brought on for trial at a subsequent term of court, at which time the appellant made no objection to the second trial and did not complain of double jeopardy until a guilty verdict was returned.

This is a case of first impression, so far as we can ascertain. The question of whether the deliberate or inadvertent mention of plea bargaining or sentence negotiation by a defendant during the course of a trial is grounds for a mistrial has never been ruled on by the courts of this State.

The phrase “plea bargaining” has wormed its way into the parlance of the courts in the last five to ten years and is often referred to in a derogatory manner. This Court is of the opinion that there is a real difference between “plea bargaining” and “sentence negotiation.” The former connotes the reduction of the charge to a lesser offense or the reduction in the number of counts upon which a given defendant is charged in order to promptly dispose of the case, and is often resorted to in the name of expediency rather than basing such reduction upon the evidence at hand. Sentence negotiation is resorted to when the evidence is consistent with the charged offense and only the amount of time to be served by the defendant after a plea of guilty to the charged offense is discussed between the prosecutor, the defendant, the defense counsel and the judge. The case before us seems to fall in the latter category. In the opinion of this Court, sentence negotiation may be a useful and administrative tool, designed to expedite the disposition of cases and to save countless hours and dollars which might be expended in useless trials. The former, or plea bargaining, may be such a tool if properly based on the evidence and closely examined by the trial courts.

Neither plea bargaining nor sentence negotiation should be discouraged as long as they are conducted in such manner that the rights and interests of all concerned are properly protected and carefully scrutinized by the trial court.

We must then face the question of whether the injection of either plea bargaining or sentence negotiation into evidence constitutes proper grounds for declaring a mistrial. From the beginning of recorded cases, the courts have held that in order to constitute grounds for a mistrial there must appear in the record a “manifest necessity” for the ruling of the trial judge. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Wilson, 534 F.2d 76, 79 (6th Cir. 1976); Carsey v. United States, 129 U.S.App.D.C. 205, 392 F.2d 810 (1967). The courts of Kentucky have adopted the same basic rule and have, on occasion, referred to this necessity as “an urgent and real necessity.” Baker v. Commonwealth, 280 Ky. 165, 132 S.W.2d 766 (1939).

To permit.either side to disclose to the jury the fact of plea bargaining or sentence negotiation in an attempt to give credit or reflect discredit to the case before that jury would result in endless possibilities of material injustice. Had the prosecution, on cross-examination, elicited from the defendant the fact that he had offered to plead guilty in exchange for a light sentence, the outcry by his counsel would have been heard for miles. Can we then say that when, in an apparent attempt to bolster his credibility, the defendant brings to the attention of his peers the fact that he declined an offer, he is any less culpable? We think not. Although plea bargaining and sentence negotiation should be openly conducted, with the defendant present at all times and represented by counsel, and the trial judge in full awareness and command of the situation, this does not give to either side the right to disclose these negotiations to the jury.

An excellent summary of the problems and responsibilities of the harried trial judge is set out in the case of Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). In that case the Supreme Court quoted from an opinion of Justice Story in U. S. v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), when he stated:

. the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of justice would otherwise require. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. . . . The security which the public have (sic) for the exercise of this discretion, rests . upon the responsibility of the Judges.

In the case of Gori v. U. S., 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the court in speaking of the discretion of the trial court to declare a mistrial stated as follows:

Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.

Under the circumstances of this case, and in full knowledge that the appellant concedes error but claims that only an admonition would have been sufficient, this Court is of the opinion that the trial judge, who is obviously best able to intelligently evaluate the situation at hand, did not abuse his discretion in finding that there was, in fact, a manifest necessity to declare a mistrial.

Appellant next complains that the introduction of certain evidence was so prejudicial as to deny him a fair trial and due process of law. The first evidence which was the subject of his lamentation was that the narcotics agent testified that after the appellant had taken the agent’s money and bought the heroin, appellant shot some of this heroin into his own arm in the presence of the agent. In light of appellant’s denial that he had used heroin since 1962, and in further consideration of the failure to object to such testimony, we can see no basis for this argument. The totality of the circumstances surrounding the acts complained of and the ensuing arrest are and should be proper evidence to be considered. See Stidham v. Commonwealth, Ky., 444 S.W.2d 110, 112 (1969). The appellant cannot choose a part of his conduct and exclude the remainder on his allegation that the remainder was inconsistent with his defense — in this case entrapment.

The next evidence objected to was a description by the “narc” of his general duties and the fact that he testified that he often received information from informants and then sought to investigate to determine the correctness of this information. We perceive no error in this testimony. Had this testimony sought to include the defendant in a general category or relate to the number of occasions in which evidence or information given by these informants proved to be true, it would have clearly been irrelevant. However, in the instant case, there was no such attempt.

The final error complained of was the instructions by the court. The appellant had been indicted on the charge of trafficking in a controlled substance by transferring said substance and the instructions did not use the word “transfer” but substituted the word “sold.” If anything, under the evidence herein, the instructions were favorable to the defendant. Additionally, appellant did not object to the instructions and he is precluded from review of those instructions on appeal. See RCr 9.54(2); Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977); Eversole v. Commonwealth, Ky., 550 S.W.2d 513 (1977); Luckett v. Commonwealth, Ky., 550 S.W.2d 517 (1977).

The judgment of the lower court is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Harold BARNES, d/b/a Sulphur Creek Marina, Appellant, v. DEPARTMENT OF REVENUE, Commonwealth of Kentucky, and Maurice P. Carpenter, Commissioner, Kentucky Department of Revenue and Commonwealth of Kentucky, Office of the Attorney General and the Kentucky Board of Tax Appeals, Appellees.
    Court of Appeals of Kentucky.
    Dec. 22, 1978.

      Phyllis A. Sower, Michael L. Judy, Johnson, Judy & Gaines, Frankfort, for appellant.
    William P. Sturm, Dept, of Revenue, Frankfort, for appellees.
    Before HOGGE, VANCE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment entered March 6, 1978, which affirmed an order of the Kentucky Board of Tax Appeals, holding that the appellant’s houseboats were not exempt from use tax under KRS 139.-483.

Appellant owns and operates a boat dock located on Dale Hollow Lake and has been in the marina business since early 1960. The business has been audited by the Revenue Department for sales and use tax purposes on three occasions. Previous audits have not resulted in any deficiency assessments regarding the houseboats. In 1974, the sales and use tax records of the appellant were examined by the Department for the years July 1, 1970, through July 30, 1974, and the result was a deficiency assessment of $2,874.09 use tax for the purpose of four houseboats during the audit period. The boats are registered by the appellant as livery or boats for hire and are leased on a weekly basis. The deficiency was challenged by the appellant within the Revenue Department system and the Department ruled that the exemption relied upon by the taxpayer, for excluding the houseboats from use tax, related only to river-industrial vessels, such as barges and towboats, and was a provision of the Port and River Development Commission Act. A petition of appeal was taken to the Kentucky Board of Tax Appeals, which ruled that the houseboats were subject to use tax, and that KRS 139.483 is an integral part of the Port and River Development Act of 1966. Further appeal was taken to the circuit court which affirmed the decision of the Board of Tax Appeals. This appeal followed.

Appellant sets out the following arguments:

1) The orders of the circuit court and the Board of Tax Appeals are not in conformity with the law and are not supported by substantial evidence.
2) If the meaning of KRS 139.483 is in doubt, then any doubt must be resolved in favor of the taxpayer.
3) The Board of Tax Appeals and the circuit court erred in that they usurped the power of the legislature.

This Court reverses the judgment of the trial court and the Kentucky Board of Tax Appeals.

The crucial issue is whether the houseboats of the appellant are exempt from sales and use tax under KRS 139.483.

KRS 139.483 is a sales and use tax statute which specifically exempts from taxation ships and vessels used principally in the transportation or conveyance.of persons for hire. The Revenue Department contends that the statute is an integral part of the Port and River Development Commission Act, and therefore, relates only to river-industry vessels such as barges and towboats, not including pleasure craft. It appears to us that the statute is on its face an integral part and is located in the sales and use tax provisions of Chapter 139 of the statutes.

Statutory language must be given its clear and commonly accepted meaning. We find that the statute contains no language excluding houseboats from the application of the exemption. The statute draws no distinction between industrial commercial craft and pleasure commercial craft.

We must also consider the past practice of the Department of Revenue which was not to collect use tax on houseboats. Appellant had been previously audited and no deficiency assessments regarding houseboats were made. Appellant testified that others in the marina business have not been paying nor were required to pay use tax on their houseboats. Similar testimony was received from the appellant’s accountant. The testimony of Department of Revenue officials indicates that there had been no previous taxation of houseboats. It is well established that the practical construction of a statute by administrative officers over a long period of time is entitled to controlling weight. Grantz v. Grauman, Ky., 302 S.W.2d 364 (1957). Because the Revenue Department has not previously assessed a use tax on houseboats they should not be permitted to impose this tax at this time without statutory authority.

The Kentucky Board of Tax Appeals and the trial court committed reversible error in holding that the Revenue Department was correct in excluding houseboats from the tax exemption. The statute contains no reference to a distinction between industrial commercial craft as opposed to pleasure commercial craft. Such a distinction is neither evident nor implied by the language of the statute. It appears to us that the statute has a general application to all ships and vessels which are used primarily in the transportation of property or in the conveyance of persons for hire. If the application of KRS 139.483 is to be modified in any way, such a distinction must come from the legislature and not from the Department of Revenue. If there is an omission in KRS 139.483 it must be rectified by the General Assembly only. The construction of the statute by the Revenue Department is improper because the applicability of a tax is not a matter of administrative manipulation. Commonwealth ex rel. Ross v. Lee’s Ford Dock, Ky., 551 S.W.2d 236 (1977).

If the statute is applied so as to exclude from taxation boats or vessels such as the Belle of Louisville or the Delta Queen, but not other vessels, then the statute is unconstitutional because it results in discrimination and unjust treatment of a particular taxpayer. George v. Scent, Ky., 346 S.W.2d 784 (1961). Uniformity of taxation is required by Kentucky law.

It is well settled that when there is confusion, ambiguity or doubt about the meaning of a statute, such doubt must be resolved in favor of the taxpayer. Brown-Foreman Distillers Corp. v. Commonwealth, Dept. of Revenue, Ky., 346 S.W.2d 752 (1961).

Here, it appears that the judgment of the trial court and the Board of Tax Appeals are at variance with the clear meaning and language of the statute. If there is a doubt as to the meaning of the statute, such doubt should be resolved in favor of the taxpayer, and therefore, the Board and the lower court were erroneous in their decisions.

It is the holding of this Court that houseboats are exempt from the use tax provision of KRS Chapter 139 by virtue of the exemption created in KRS 139.483. Therefore, the judgment of the trial court and the Board of Tax Appeals is reversed.

All concur.


author: DONNELLY, Judge. BARDGETT, Judge,

text:
    WESTERN TRAILER SERVICE, INC., Respondent, v. Dr. James T. LePAGE, Director of Revenue, et al., Appellants.
    No. 60570.
    Supreme Court of Missouri, En Banc.
    Nov. 6, 1978.
    Rehearing Denied Dec. 18, 1978.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for appellants.
    William K. Waugh, III, Sam D. Parker, Lathrop, Koentz, Righter, Clagett, Parker & Norquist, Kansas City, for respondent.
   DONNELLY, Judge.

The issue in this case is whether the payments received by respondent Western Trailer Service, Inc. (hereinafter Western Trailer) from Santa Fe Trails Transportation Company (hereinafter Santa Fe), for certain tangible personal property sold to Santa Fe is exempt from the Missouri state sales tax by reason of § 144.030.1, RSMo Supp. 1977. This Court has jurisdiction since construction of the revenue laws of this state is required, Mo.Const. Art. V, § 3.

Western Trailer is a Missouri corporation engaged in the business of repairing and servicing commercial truck trailers. Among the trailers serviced are those of the Santa Fe, a corporation located in Kansas. Under the Western Trailer-Santa Fe contract, employees of Western Trailer went to Kansas, picked up Santa Fe’s trailers, and brought the trailers to Western Trailer’s place of business in Kansas City, Missouri. After repairs were made and repair parts installed, the contract required the trailers to be returned to Santa Fe in Kansas by Western Trailer’s employees.

In October, 1976, Western Trailer was assessed $2,947 in additional sales tax and interest. Western Trailer disputes $1,336 of the tax, the portion attributable to repair parts installed in Santa Fe’s trailers. The balance of the assessment has been paid. On a petition for reassessment, a Department of Revenue Hearing Officer reasoned that “All sales of repair parts were made at the time the repair parts were installed. This took place in the state of Missouri” and concluded, inter alia, that the sales “were not retail sales in commerce between this state and any other state” and thus “were not exempt by virtue of Section 144.030.1 RSMo 1969 . . . .” The Hearing Officer’s decision is adopted by the Director of Revenue.

The Missouri sales tax is “levied and imposed upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail in this state.” § 144.020.1, RSMo 1969. Section 144.030 contains a number of exemptions from sales tax liability. The subsection at issue in this case provides:

“There is hereby specifically exempted from the provisions of sections 144.010 to 144.510 and from the computation of the tax levied, assessed or payable under sections 144.010 to 144.510 such retail sales as may be made in commerce between this state and any other state of the United States, or between this state and any foreign country, and any retail sale which the state of Missouri is prohibited from taxing under the constitution or laws of the United States of America, and such retail sales of tangible personal property which the general assembly of the state of Missouri is prohibited from taxing or further taxing by the constitution of this state.” § 144.030.1, RSMo Supp. 1977.

On appeal to the circuit court, the Department of Revenue’s position was reversed as unsupported by competent and substantial evidence upon the whole record and as being arbitrary. The trial court concluded that the sales in question were in interstate commerce since they were made to a resident of Kansas and delivery of the parts was taken outside Missouri. The Director of Revenue appealed to this Court.

In our opinion, the position of the Director of Revenue cannot be sustained. We believe there was a “dealing between persons of different states in which importation * * * [was] an essential feature or * * * [formed] a component part of the transaction * * City of Eldorado Springs v. Highhill, 268 Mo. 501, 508, 188 S.W. 68, 70 (1916). Importation of the trailers from Kansas to Missouri was a component part of the transaction. The retail sales were made in commerce between Missouri and Kansas. § 144.030.1, RSMo Supp. 1977. The exemption applies.

Western Trailer has filed a motion for damages under Rule 84.19 on the ground that this appeal is frivolous. The motion is denied.

The judgment is affirmed.

MORGAN, C. J., and FINCH, REND-LEN, SEILER and SIMEONE, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

BARDGETT, Judge,

dissenting.

I respectfully dissent. The principal opinion premises the exemption on the fact that the Missouri company, Western Trailer Service, Inc., brought the trailers into Missouri and delivered them back into Kansas after performing all of the repair work in Missouri. Apparently, the tax would be applicable and the exemption not applicable had Santa Fe Trailer Corporation brought the trailers into Missouri for Western Trailer Service, Inc., to work on and then took its own trailers back into Kansas. I do not believe the applicability of the exemption is to be determined simply on the basis of who brings the equipment into Missouri. I would hold the exemption not applicable and, therefore, I dissent.