author: McKAY, Justice.

text:
    WHITE ROCK NATIONAL BANK OF DALLAS, Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
    No. 1095.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 2, 1978.
    Rehearing Denied March 3, 1978.

      Michael W. Stucker, Brown & Stacker, Dallas, for appellant.
    James A. Knox, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appel-lee.
   McKAY, Justice.

This is a suit on a banker’s blanket bond. Appellant, White Rock National Bank of Dallas (the bank), brought suit against ap-pellee, United States Fire Insurance Company (the bonding company), on an indemnity agreement for losses sustained by reason of a settlement paid and attorney’s fees incurred by the bank as a result of a suit by a depositor against the bank on a contract and for negligence. Trial was to the court, and a take-nothing judgment was rendered against the bank, with the trial court holding that the bank’s losses in the settled suit were not covered by the bond. The bank has brought this appeal.

It is necessary to set out the factual background which led to the present suit. One Morris Witt brought suit against the bank and Winston Freeman alleging that Witt and Freeman were contracting to buy a corporation named United Modular Home Corporation, and that in order to make such purchase Witt obtained $25,000.00; that Witt and Freeman went to the bank, conferred with the President, Jerry King, and advised King that they desired to open a bank account upon which there would be two signatures on all items of withdrawal, i. e. Witt’s and Freeman’s; that King agreed to the proposal for dual signatures on the account and instructed one of the employees to so make out the new account; that Witt wrote his personal check for $25,000.00 to the bank which was deposited to the account of United Modular Home Corporation; that contrary to the instructions given and the agreement with the bank Freeman withdrew $15,000.00 from the account without the signature or authorization of Witt, and some of the funds were withdrawn in cash and some transferred into Freeman’s personal checking account, but none of it was used for Witt’s benefit.

The bank notified the bonding company of the suit by Witt against the bank but the bonding company refused to defend the bank in the suit. The bank then settled the suit for $7,500.00, paid the entire amount itself, together with attorney’s fees of $3,638.65. The instant suit by the bank against the bonding company followed. The bank alleges that its loss in settlement of Witt’s suit was covered by the provisions of the contract or bond then in force between the bank and the bonding company. The provisions of the bond relied upon by the bank are as follows:

“FIDELITY
“(A) . . .
“ON PREMISES
“(B) Loss of Property (occurring with or without negligence or violence) through robbery, burglary, common-law or statutory larceny, theft, false pretenses, hold-up, misplacement, mysterious, unexplainable, disappearance, damage thereto or destruction thereof, and loss of subscription, conversion, redemption or deposit privileges through the misplacement or loss of Property,
“DEFINITIONS
“(b) ‘Property’ means money (i. e., currency, coin, bank notes, Federal Reserve notes), postage and revenue stamps, U. S. Savings Stamps, bullion, precious metals of all kinds and in any form and articles made therefrom, jewelry, watches, necklaces, bracelets, gems, precious and semiprecious» stones, bond, securities, evidences of debts, debentures, script, certificates, receipts, warrants, rights, transfers, coupons, drafts, bill of exchange, acceptances, notes, checks, withdrawal orders, money orders, . . . ”
“COURT COSTS AND ATTORNEYS’ FEES
(Applicable to all Insuring Agreements now or hereafter forming part of this bond)
“D. The Underwriter will indemnify the Insured against court costs and reasonable attorneys’ fees incurred and paid by the Insured in defending any suit or legal proceeding brought against the Insured to enforce the Insured’s liability or alleged liability on account of any loss, claim or damage which, if established against the Insured, would constitute a valid and collectible loss sustained by the Insured under the terms of this bond. . . ."

The trial court made findings of fact and conclusions of law as follows:

“FINDINGS OF FACT
“The Court finds:
“1. That the Plaintiff Bank sought to hold the Defendant Bonding Company liable by giving notice of a suit (Morris Witt v. White Rock National Bank of Dallas and Winston Freeman, numbered 73-5269-E pending at the time of settlement in the 101st District Court of Dallas County, Texas) against the Bank, tendering the suit for defense, and following Defendant’s refusal to defend and assume responsibility therefor, later settling the case out of court; that apart from the notices of the suit, forwarding of copies of the pleadings and demands for defense, the Plaintiff made no other attempt to comply with the provisions of the bond with respect to giving notice and filing a sworn proof of loss; and that, therefore, the sole approach of the Plaintiff to making claim under the bond is by the contention that the said Morris Witt suit contained covered allegations and that the Defendant Bonding Company, though not a party to such suit, is effectively ‘vouched in’ and bound by the settlement and is further responsible for attorney’s fees incurred because of its refusal to defend.
“2. That the pleadings, and particularly the Plaintiff’s Second Amended Original Petition, in the said Morris Witt suit, clearly contained allegations of only two grounds of recovery, to-wit: negligence and/or breach of the true deposit agreement, and, accordingly, there are no allegations of liability against the Plaintiff Bank in the said suit, which if established against the Bank resulting in loss would constitute a valid and collectible loss sustained by the insured Plaintiff Bank under the terms of the bond.
“3. That the United Modular Homes Corporation account, opened in Plaintiff Bank, was a general checking account creating a debtor-creditor relationship between the Bank and the depositors, with no specific tangible property of the depositors being held by the Bank as bailee. Though opened as a corporate account, no corporation was ever acquired and there was no corporation so named in which Witt or Freeman had an interest.
“4. That both Winston Freeman and Morris Witt requested of the Plaintiff Bank, through its then president, Jerry King, that the account be opened as a dual signature account, but through a clerical error the account was opened and set up on the records of the bank as requiring only the single signature of either Freeman or Witt.
“5. That neither Witt nor Freeman had anything to do with causing the Bank to make the error in opening the account.
“6. That the account and depository agreement, as was intended by Witt and Freeman, gave equal contractual rights in both intended signatories.
“7. That the Plaintiff had no knowledge during all relevant periods of who actually owned the deposit.
“8. That Freeman did not know of the Plaintiff Bank’s error; at least, since the record is silent as to such knowledge, it must be presumed that he did not know.
“9. That Freeman was on the Bank’s premises on two occasions, both times in the company of Morris Witt, and on neither occasion did Freeman make any false pretense, or commit any of the offenses listed under Insuring Clause (B) of the bond.
“10. That the Bank records show that certain transfers within the Bank and withdrawals from the United Modular Home Corporation account did occur, for whatever reason, pursuant to the single signature of Freeman.
“11. That the Plaintiff Bank suffered a loss by the settlement of the lawsuit, and did not suffer a loss of its tangible ‘Property’ [as defined in the bond] through a physical taking of such property from the Bank’s ‘premises’ by and through false pretenses committed by Winston Freeman against the bank.
“12. That the producing cause of the Bank’s loss was the liability or arguable liability on uncovered grounds and not any wrongful intent, had it been shown, of Winston Freeman.
“13. That the bond in question is unambiguous.
“CONCLUSIONS OF LAW
“This Court concludes:
“1. That the bond is unambiguous in its terms.
“2. That a reasonable interpretation of the bond is that Insuring Clause (B) covers loss of tangible Property, as defined in the bond, physically taken from the premises of the Bank through one or more of the crimes or offenses committed against the insured Bank by the person charged.
“3. That the arguable liability of the Plaintiff Bank growing out of the alleged negligence and breach of contract in the Morris Witt suit constituted a remote, consequential and indirect loss to the Bank and does not constitute the loss of specific tangible property of the Bank, (in this case currency or coin) through or due to a covered crime or offense committed ‘on premises’ of the Bank.
“4. That the producing cause of the liability, if any, of the Bank to Morris Witt arose from the Bank’s own negligence and/or breach of contract and not from any duty of the Bank to be aware of what was happening to funds withdrawn from the account.
“5. That the producing cause of the liability, if any, of the Bank to Morris Witt was the Bank’s error and not any wrongful intent on the part of Winston Freeman, the Bank having no duty under the law to police the account and not being accountable to the true owner of the funds represented by the deposit for the misconduct, if any, of Winston Freeman.
“6. The bond in question does not cover losses due to the Bank’s negligence or breach of contract.
“7. The United Modular Home Corporation account was a general account creating a mere debtor-creditor relationship between the Plaintiff Bank and the depositor.
“8. That certain contractual obligations were created upon the opening of the account, but the Plaintiff Bank had no duty to know who owned the money represented by the deposit.
“9. That the claim for attorney’s fees must fail for the same reason as the claim for the amount paid in settlement, that is, the Morris Witt suit pleading contained no allegations which if proven true would have constituted a covered loss under the bond.”

The bank brings fourteen points of error in each of which it complains that the trial court erred in making a certain finding of fact or a particular conclusion of law. It seems clear that the ultimate question presented, however, is whether under the record here the loss claimed by the bank in settling the suit filed against it by Witt (and paying an attorney’s fee for legal representation) was an obligation of the bonding company under the language of the bond.

When the deposit was made in the bank a printed form headed “Corporate Resolution,” was signed in blank by Winston Freeman and Morris Witt, and above their signatures appeared the following: “And from which withdrawals are hereby authorized in the name of the corporation by any _1_ of the following: See below.” It is undisputed that the bank was requested that the account be set up for dual signatures, and that Jerry King, bank president, agreed to do so and instructed a new account secretary accordingly. Apparently the new account secretary put a “1” in the blank on the form and when Freeman wrote checks on the account the bank records indicated his single signature was sufficient and was authorized.

It is the contention of the bank in its first point that the allegations in Plaintiffs Second Amended Petition in the Morris Witt v. White Rock National Bank of Dallas and Winston Freeman suit were within the coverage of the banker’s blanket bond for the reason that a reasonable interpretation of such pleading reveals that the crux of such pleading was a cause of action arising out of the theft by Freeman, accompanied by the “negligence” of the bank. We do not agree with this contention.

To determine upon what grounds Witt sought recovery in his suit against the bank it is necessary to examine the pleadings and contentions of Witt as plaintiff there. The language of the Witt pleading against the bank with which we are concerned follows:

“Since that time there has been withdrawn from said account the sum of $15,-000.00 in funds, by Defendant Freeman only on the signature of Defendant Freeman, which funds . . . were taken by Defendant Freeman for his own uses and purposes, to Plaintiff’s detriment.
“Because of the negligence of the Defendant bank in preparing the corporate resolution as indicated, and/or because said Defendant breached its agreement with Plaintiff to prepare the corporate resolution as indicated, Plaintiff has been damaged in the sum of FIFTEEN-THOUSAND ($15,000.00) DOLLARS, for which he sues.”

It is seen from the quoted pleadings that Witt pled that the funds he sued for were taken by Freeman “for his own uses and purposes,” and to Witt’s detriment, and that the bank was guilty of negligence in erroneously preparing the corporate resolution, and that the bank breached its agreement to properly prepare such corporate resolution for dual signatures. Witt alleged that Freeman took the funds for his own uses and purposes without Witt’s permission and to Witt’s detriment. There is no allegation of theft or of false pretenses either on the bank premises or elsewhere. It seems clear that Witt alleged and intended to prove the true deposit agreement, and, alternatively, that the bank was negligent and that he suffered damage.

An examination of the bond indicates that it was not intended to, and does not, cover losses due to negligence or breach of contract. It covers certain listed classes of losses by which property may be lost (with or without negligence or violence), but these are specific and do not cover breach of contract or negligence by the bank in carrying out instructions of the depositor.

We believe the disposition of this case is controlled by National Surety Corporation v. First National Bank of Midland, 431 S.W.2d 353, 355 (Tex.1968). In that case a bank insured under a banker’s blanket bond contended that a suit which the bank had successfully defended contained allegations of liability, which if established, would have caused it to suffer a loss subject to indemnification under one of the insuring clauses of the bond. The suit there was only for attorney’s fees and court costs since there was a successful defense of the case, but the opinion seems to be clear that the bond underwriter’s liability for the principal indemnity is to be examined in the same manner as liability for court costs and attorney’s fees. We quote from the opinion.

“To determine whether National Surety is liable for court costs and attorney’s fees in a particular case, recourse must be had to the pleadings and papers in the suit which insured’s attorneys defended, and thence to the lettered classes of loss in the bond, (page 355)
“To sustain its recovery of attorney’s fees under the quoted language of section E, as we interpret it, the Bank was required to prove that Mrs. Beavers alleged that the Bank ‘acted upon’ bonds which were counterfeit or forged, or were proved to have been counterfeit or forged, as to signatures at the time it acted. Giving to the alternative plea the most liberal interpretation of which it is susceptible, we find no such allegation, (page 357)
“. . We conclude that the plea did not allege liability of the Bank which, if established, would have caused it a loss subject to indemnification under section E. (page 357)
“. . . Inasmuch as Mrs. Beavers’ petition, the crucial instrument which controls the point at issue, cannot be changed, there is no sound basis for remanding the cause for trial.” (page 357) [Emphasis theirs.]

See also the Aetna Casualty and Surety Company v. Southern Brokerage Company, 443 S.W.2d 45 (Tex.1969). Point 1 is overruled.

The bank attacks Findings of Fact 6, 7, and 3, and Conclusion 7 as being erroneous under the record. Argument is made by the bank that the undisputed evidence showed, contrary to Finding 6, that all the money deposited in the account was owned by Witt, and that it was the express intention of both Witt and Freeman that Witt retain control of the money. The bank further maintains that the trial court erred in Finding 7 that the bank had no knowledge of who actually owned the account because the undisputed testimony of Jerry King, bank president, established that he knew Witt owned all the money, and such knowledge was imputed to the bank. The bank also contends that the trial court erred in finding and concluding that the account was a general checking account creating a debtor-creditor relationship between the bank and depositors. While we believe there is merit in the bank’s contention that the above Findings 6 and 7 are not supported by the evidence in the record, we do not agree with the result arrived at by the bank’s deductions, nor do we believe they govern the outcome of the case. The argument is made that since Witt’s deposit was for the specific purpose of purchasing a corporation, and the bank president knew of such purpose and set up the account accordingly and styled it “Special Account,” then Witt and the bank had the relationship of bailor and bailee, or trustor and trustee, or principal and agent, and the disbursement of Witt’s money contrary to his express instruction to the bank requiring dual signatures constituted on premises theft of Witt’s property within Clause B of the bond.

We do not agree that the deposit was a special deposit. It is said in Citizens First National Bank of Tyler v. Cinco Exploration Co., 540 S.W.2d 292, 295 (Tex.1976):

“A ‘special deposit’ is the traditional designation of the bailment or agency or trust whereby the bank keeps or transmits identical property or funds entrusted to it. The usual creditor-debtor relationship does not arise. Hudnall v. Tyler Bank & Trust Company, 458 S.W.2d 183 (Tex.1970). In order for a ‘special deposit’ situation to exist, there must be an agreement between the depositor and the bank upon the use of deposited funds for a specific purpose. . . . ”

Since there was no special deposit created under the record the relationship was that of debtor-creditor between the bank and the depositor. While the record indicates that the bank president, Jerry King, was told the purpose of the deposit was to buy a certain corporation there was no agreement between the bank and the depositor that the bank would pay out the money only for that specific purpose. The designation of the account as “special account” does not make it a “special deposit”. Nor do we agree with the conclusion of the bank that the result of Freeman’s withdrawals from the account constituted theft from the premises. Points 13 and 14 are overruled.

By Points 4 and 11 the bank says the trial court erred in Finding 8 that Freeman did not know of the bank’s error in establishing the account, and in Conclusion 5 that the bank failed to establish the requisite wrongful intent of Freeman in order to hold the bonding company liable under the bond. By its point 6 the bank maintains that the trial court erred in Finding 12 that its loss was not primarily caused by the theft of Freeman because the undisputed evidence showed that Freeman misappropriated the funds for his personal benefit. In points 9 and 10 the bank contends that the undisputed evidence established, contrary to Conclusion 3, that a loss of the bank property was in Clause B of the bond, and that, contrary to Conclusion 4, the evidence established that the loss was caused by misappropriation of funds by Freeman, and Clause B encompasses such losses regardless of any negligence attributed to the bank.

We have noted that in our view the deposit was a general demand deposit which created the relationship of debtor and creditor. In the absence of an agreement to the contrary, a bank is under a duty to honor its depositors’ checks or orders, where there was sufficient funds of the depositor when checks are presented, regardless of the purpose for which the check is given. Frost National Bank v. Nicholas & Barrera, 534 S.W.2d 927 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.).

The bank’s exposure to liability to Witt may be traced to its error in opening the account. Freeman had nothing to do with the bank’s mistake nor does the record show that he knew of the mistake. The bank’s argument seems to be that the mere act of Freeman of sending the bank checks through with single signatures constituted obtaining funds by false pretenses on the premises. We disagree. Freeman may have breached the true deposit agreement by so doing, but there was no physical taking of tangible property on premises. These points are overruled.

In our view we must return to our earlier premise that the bank’s loss in settling the Witt suit must be measured by the allegations of Witt in his suit against the bank. We are of the opinion that the pleadings in the Witt suit control, and further that such pleadings, given a liberal interpretation, did not allege loss of property on premises as described and covered by Clause B. National Surety Corp. v. First National Bank of Midland, supra.

We have examined the bank’s remaining points, and they are overruled.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Frederick William MARTIN, Appellant, v. K. K. MOORE, Appellee.
    No. 12689.
    Court of Civil Appeals of Texas, Austin.
    Feb. 8, 1978.
    Rehearing Denied March 1, 1978.

      Thomas Goggan, Goggan & Cain, Austin, for appellant.
    Price R. Ashton, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant and appellee are neighbors. The plaintiff below, appellee here, brought this suit to compel the defendant below, appellant here, to remove a board fence that appellant had erected along a common property line. Appellee alleged that the fence was in derogation of certain building restrictions applicable to the subdivision.

Trial to the court, sitting without a jury, resulted in a judgment permanently enjoining appellant from maintaining the fence.

We affirm.

The parties hereto are adjacent lot owners in Allandale Terrace. Appellee’s residence is located at 3002 Carlisle and appellant’s residence is located next to appellee’s property on the corner lot at the intersection of Treadwell and Carlisle. The front of appellee’s residence faces Carlisle and the front of appellant’s residence faces Treadwell. The common boundary line between the parties is the eastern line of appellee’s lot and the western line of appellant’s lot at the rear of appellant’s residence.

Appellant purchased his lot in May, 1975. Prior to his purchase of the property, a two-story house was constructed on the premises. At that same time, the rear portion of the lot was enclosed by a wooden fence that extended no further than the southwestern corner of the house. This left unfenced a portion of the side yard adjacent to Carlisle Drive. It was when appellant extended the pre-existing fence from the southwestern corner of his house down to his boundary line and, as a result, enclosed that portion of his property adjacent to Carlisle Drive that had previously been unfenced that plaintiff brought this lawsuit.

The following drawing depicts the location of the parties’ property.

The restrictions in the deed with respect to fences are as follows. One restriction provides that “. . .no fence, wall or hedge shall be built or maintained forward of the front wall line of the respective house. . . .” Another restriction provides that “. . . No fence or wall shall be erected, placed or altered on any lot nearer to any street than the minimum building setback line unless similarly approved. . . . ” The “approval” part of the latter restriction refers to the method in which any of the restrictions can be changed; that is, by approval of an architectural control committee.

Appellant is before us on sixteen points of error which, in effect, present several questions for our determination.

The first question for determination is whether appellee waived or relinquished his right to enforce the restrictions as to the placement of the fence. Appellant contends that he did. Specifically, appellant argues that appellee approved the construction of the fence and, in fact, aided appellant in constructing the fence. Therefore, appellant concludes, that appellee’s right to enforce the restrictive covenants was lost by waiver.

We cannot agree with this contention. The record discloses that although appellee may have indicated approval of the fence before it became apparent that the fence would be made of boards, six feet in height, and although appellee may have aided appellant in finding the correct property line, when appellee realized that the new fence would be projected all the way to Carlisle Drive, that it would be over six feet in height, and constructed of solid board, protests were made immediately. In our opinion, the evidence fails to show waiver of the restrictions.

We also hold that although the record discloses that there are two or more fences on corner lots in Allandale Terrace similar to the fence under attack here, appellant cannot successfully contend that the restrictions have been waived or abandoned, as there is nothing in the record to indicate that there was a lack of approval of those fences by the developers along with the architectural control committee. There is no evidence in the record of frequent and numerous violations of the restrictions that would reveal the intent on the part of the property owners in Allandale Terrace to abandon the plan of development. See Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943 (Tex.1958). Wald v. West MacGregor Protective Ass’n, 332 S.W.2d 338 (Tex.Civ.App. Houston 1960, writ ref’d n. r. e.); Stanford v. Brooks, 298 S.W.2d 268 (Tex.Civ.App. Fort Worth 1957, no writ); Eakens v. Garrison, 278 S.W.2d 510 (Tex.Civ.App. Amarillo 1955, writ ref’d n. r. e.); Rudy v. Southampton Civic Club, 271 S.W.2d 431 (Tex.Civ.App. Waco 1954, writ ref’d n. r. e.); Ragan v. Mosher, 225 S.W.2d 438 (Tex.Civ.App. Galveston 1949, writ ref’d n. r. e.); Klein v. Palmer, 151 S.W.2d 652 (Tex.Civ.App. Galveston 1941, no writ); Plaster v. Stuzman, 8 S.W.2d 750 (Tex.Civ.App. Galveston 1928, no writ).

We also overrule appellant’s contention that the restriction as to fences within the twenty-five-foot setback line does not apply because of the encroachment of his residence and the pre-existing fence into the restricted area over a period of many years. See Ortiz v. Jeter, 479 S.W.2d 752 (Tex.Civ.App. San Antonio 1972, writ ref’d n. r. e.); First State Bank of Corpus Christi v. T. M. James, 471 S.W.2d 868 (Tex.Civ.App. Corpus Christi 1971, no writ). Although the record does not disclose the extent of the encroachment, indications are that it is minimal.

The next question for our consideration is whether this action was timely commenced. The applicable procedure for enforcement of the restrictions is specified in the restrictive covenants. It reads:

“Procedure: The committee’s approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its representative [sic] to approve or disapprove, within thirty days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.” (Emphasis added)

The evidence discloses that a two-month period elapsed between the date of construction of the fence and the date of institution of this suit. The trial court found that in the context of this case, the applicable procedure to enjoin construction was unreasonable, due to the fact that building was commenced on Saturday afternoon and completed on Monday afternoon. Appellant, in his brief and during oral argument, agreed with the trial court. However, appellant argues that appellee did not commence this suit within a reasonable time after completion of the project. Appellant suggests that thirty days from completion of construction would be a reasonable time in which to file suit.

We do not agree with appellant’s position. There is nothing in the record to suggest inexcusable delay on the part of appellee and, therefore, the determination of the trial court that appellee commenced this suit within a reasonable time after appellant constructed the fence is supported by the record. See Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167 (Tex.1943); Keene v. Reed, 340 S.W.2d 859 (Tex.Civ.App. Waco 1960, writ ref’d); Litvin v. Kennedy, 290 S.W.2d 707 (Tex.Civ.App. Eastland 1956, no writ).

We also overrule appellant’s contention that there is no pleading or proof that approval of the architectural control committee was, in fact, not obtained and that, therefore, appellee failed to prove his cause of action. Contrary to appellant’s assertion, the plaintiff does not have to anticipate defenses but it is the burden of the defendant to plead and prove matters in confession and avoidance.

We hold that approval of the fence by the committee is in the nature of an affirmative defense that was neither pleaded nor proved by appellant, defendant below, and, consequently, was waived. See Gerlach Mercantile Co. v. Hughes-Bozarth-Anderson Co., 189 S.W. 784, 791 (Tex.Civ.App. Amarillo 1916, writ ref’d).

The final question for our determination is whether the restrictions, set out above, are applicable. The trial court determined that the twenty-five-foot front lot setback line along Carlisle Drive controls the proper location of the fence in question. This is so even though appellant’s house was constructed so as to front on Treadwell Street. We sustain the trial court’s findings of fact and conclusions of law in this respect. When the photographs of the fence placed in evidence are viewed, it becomes apparent at once that the fence is unsightly, restricts appellee’s view of Treadwell Street to the east, and is not in harmony with the general pattern of the neighborhood. Thus, the applicability of the setback restrictions become readily apparent.

In this regard, we overrule appellant’s contention that the twenty-five-foot setback line restriction was neither pleaded nor proved. Appellant argues that the trial court erred in advising appellee of a ground of recovery that appellee had not invoked, and in allowing appellee’s trial amendment and entering judgment based thereon. In our judgment, defendant waived any objection he may have had to the trial court’s request for a clarification of the nature of the case or in allowing appellee’s trial amendment since the evidence admitted without objection clearly raised the issue of the setback restriction and, therefore, the issues raised in the amendment were tried by consent of the parties.

The judgment of the trial court is in all things affirmed.

Affirmed.


author: KLINGEMAN, Justice.

text:
    Joseph CHACON, Jr., Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 15861.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 8, 1978.
    Rehearing Denied March 1, 1978.
    Earle Cobb, Jr., Cobb, Thurmond & Bain, Inc., San Antonio, for appellant.
    James M. Parker, City Atty., Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellees.
   KLINGEMAN, Justice.

This is a suit by Joseph Chacon, Jr., appellant, against the City of San Antonio, its City Manager, and its Mayor, appellees, in the nature of inverse condemnation for damages allegedly caused by the passage of an ordinance known as the Airport Overlay Ordinance. Appellees answered that there had been no appropriation of appellant’s land and that the suit should be abated and dismissed. The trial court held that no cause of action existed until such time as the City passes a specific ordinance covering plaintiff’s land, and ordered that plaintiff’s suit be abated and dismissed. The property involved is in the City of San Antonio.

Appellant’s sole point of error is that the trial court erred in dismissing or abating plaintiff’s cause of action based upon the pleadings.

Appellant, in his brief, asserts that the questions to be decided on this appeal are: (1) Does official announcement of the plans for the Airport Overlay Ordinance constitute an appropriation of plaintiff’s property? (2) Does the passing of the Airport Overlay Ordinance constitute an appropriation of plaintiff’s property? We have concluded that the answer to each of such questions is, “it does not.”

This controversy has been the subject of a previous lawsuit between the parties. We think the holding and language in Chacon v. Granata, 515 F.2d 922 (5th Cir. 1975), cert. denied, 423 U.S. 930, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975), is particularly applicable to the case herein.

In such case, the Court said:

That the annexation itself inflicts no legal injury on these plaintiffs is clear, though it allegedly has caused a decline in the value of their property. Many kinds of legislative and administrative action affect property values, but, without some diminution in the owner’s rights of use, do not constitute a taking within the purview of the Fourteenth Amendment. See, e. g., Sayre v. City of Cleveland, 6 Cir., 1974, 493 F.2d 64 (approval of urban renewal plan allegedly causing decline in value of plaintiff’s property held not to constitute a taking of the property); Woodland Market Realty Company v. City of Cleveland, 6 Cir., 1970, 426 F.2d 955 (decline in property values caused by appropriation of adjacent land for urban renewal project held not a taking); 23 Tracts of Land, etc. v. United States, 6 Cir., 1949, 177 F.2d 967, 969-970. * *
It may develop that the City of San Antonio, in promulgating restrictions on the use of plaintiffs’ land or otherwise assuring adequate approach clearances for aircraft using the runways at the Air Force Base, will cause a taking of the land, either through improper zoning or abuse of its eminent domain powers. At present, however, we discern no more than an allegedly ill-intentioned legislative action causing no cognizable injury.

Appellant asserts and City concedes that, in the absence of an evidentiary hearing on a plea of abatement, the factual allegations of plaintiff’s petition must be accepted as true. See Brazos Electric Power Cooperative v. Weatherford Ind. School Dist., 453 S.W.2d 185 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.); Taylor v. United Assoc, of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, 337 S.W.2d 421 (Tex.Civ.App.—Fort Worth 1960, writ ref’d n. r. e.); Pait v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, 322 S.W.2d 340 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.).

Appellant’s petition alleges that a 23-acre tract owned by him was taken for public use without compensation in violation of the Texas Constitution, the U.S. Constitution, and the Charter and ordinances of the City of San Antonio; that such zoning is an unlawful exercise of the police power in that it benefits only Randolph Air Force Base, and not the safety or welfare of the community; and that it amounts to inverse condemnation. Plaintiff sought damages in the amount of $46,000.00, and punitive or exemplary damages of $46,000.00. A copy of the City’s Ordinance No. 44845, authorizing Military Aircraft Overlay Districts, was attached to the original petition.

The Ordinance involved amended Chapter 42 (Zoning) of the City Code by creating two classifications of Military Aircraft Overlay Districts (MAOD-1 and MAOD-2). It sets forth generally the anticipated location of such districts and gives approximate dimensions to be encompassed in each. It does not create or designate any specific zones. It does require that all procedures and requirements for zoning and rezoning of property must be followed in designation of property as being within such an overlay district. It does not mention any future acquisitions of land.

The Supreme Court of Texas, in Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396 (1943), said:

We think it is now settled in this state that, generally speaking, ‘municipal corporations have the right, under the police power, to safeguard the health, comfort, and general welfare of their citizens by such reasonable regulations as are necessary for that purpose.’ 30 Tex.Jr. 120, Sec. 58. It is also equally well settled that zoning ordinances fall within the police power of municipalities and that such power, ‘may be exerted to regulate the use, and where appropriate or necessary prohibit the use, of property for certain purposes in aid of the public health, morals, safety, and general welfare, and that the constitutional limitations form no impediment to its exertion where the enactment is reasonable and bears a fair relationship to the object sought to be attained.’ [Citation omitted]

The Supreme Court of the United States, in Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1896), said:

And as all property, whether owned by private persons or by corporations, is held subject to the authority of the state to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the state shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the state by reasonable regulations to protect the lives and secure the safety of the people.

In a case somewhat analogous to the one before us, Sayre v. City of Cleveland, 493 F.2d 64 (6th Cir. 1973), it was held that the approval of an Urban Renewal Plan allegedly causing a decline in the value of plaintiff’s property did not constitute a taking of the property, the Court saying:

We are unable to find any judicial support for the broad proposition advanced by appellee in his brief that there is an unconstitutional taking whenever a city in the conduct of its urban renewal program commits acts that lead to the devaluation of property. The converse of this proposition is particularly true where the city, as in this case, has neither initiated eminent domain proceedings, evidenced any intent to begin procedures, or physically invaded the property.

An examination of the ordinance reflects that plaintiff’s property is nowhere mentioned nor is there anything in the record specifically describing such property or definitely placing its location within an overlay district. It is undisputed that no ordinance affecting such property has been passed subsequent to Ordinance 44845.

When and if a specific zoning district is created south of Randolph Air Force Base, appellant’s property may well be included therein and it may develop that the restrictions under such designation will prove so burdensome as to constitute appropriation. Before such things can come to pass, the City’s procedure and requirement for zoning and rezoning of property will have to be complied with. At this time, the City has neither initiated any eminent domain proceedings pertaining to plaintiff’s property; evidenced any intent to commence any such proceedings; or physically invaded such property. There has been no taking or appropriation of appellant’s property.

The trial court properly held that this suit was premature. The judgment is affirmed.

      . In Chacon v. Granata, plaintiffs were 20 landowners who sued the City after the City passed an ordinance annexing a large tract which included their lands. They asserted that the annexation was the first step in a scheme to deprive them of their property without just compensation, either by unlawful ordinance or eminent domain proceedings initiated after the annexation had driven down the property values. The City contended that the anticipated zoning or condemnation was to prevent uses of the subject land that would interfere with aircraft operations at Randolph AFB. The District Court held such annexation lawful and held that plaintiffs’ challenge to anticipated zoning or condemnation proceedings by the City was premature and dismissed the suit. Plaintiffs appealed the dismissal of their cause of action and the appellate court held that: (1) the annexation was procedurally proper; (2) the annexation by itself is nothing more than an inchoate wrong that may never ripen; (3) the annexation itself inflicts no legal injury on the plaintiffs, though it allegedly caused a decline in the value of their property; (4) at the time of the dismissal of their complaint, the City had passed no zoning ordinances applying to plaintiffs’ lands and under the circumstances the plaintiffs’ fear about future zoning ordinances was not imminent; and (5) there had been no taking of the property within the purview of the Fourteenth Amendment.


author: HUGHES, Justice.

text:
    Edward K. HAYSE, Jr., Appellant, v. SEABOARD FIRE AND MARINE INSURANCE COMPANY, Appellee.
    No. 17931.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 9, 1978.
    Rehearing Denied March 9, 1978.
    Thorne, Thorne & Robertson and Michael A. Robertson, Grand Prairie, for appellant.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk and Albon 0. Head, Jr., Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Edward K. Hayse, Jr., plaintiff, appealed the take-nothing judgment rendered by the trial court against him and in favor of Seaboard Fire and Marine Insurance Company, defendant. This is a workmen’s compensation case which was tried without a jury-

We affirm the judgment of the trial court.

Hayse appealed, urging fourteen points of error which he grouped under three headings, (hereinafter referred to as the points), namely, that the trial court erred in finding:

1. No injury in the course of employment;
2. No incapacity or loss of earning capacity;
3. No medical expenses incurred for reasonable medical treatment.

Hayse alleged that he had suffered an accidental injury in the course of his employment. The record reflects that Hayse had been employed by American Airlines, Inc. at the Fort Worth-Dallas Regional Airport as a fleet service clerk and had been employed by American Airlines since May 1966. He was chief steward of Local 513 of the AFL-CIO Transportation Workers Union. Hayse testified that he arrived for work at 5:00 a.m., on September 11, 1975. The line control desk notified him to meet Steward Tom Coker at Gate 16. He went to Gate 16 with Jerry Hicks, second vice president of the Local, to investigate a potential grievance matter (an informal procedure provided in the union contract with American to avoid formal grievances). His supervisor was not present when he received the notice and left his work area. He notified someone he thought was a lead man that he was leaving the work area.

Hayse further testified that as he returned to Gate 1 he was stopped by M. F. MacNamara, a group supervisor. After some discussion, MacNamara instructed that he be given written notice that he was being held out of service pending an investigation of his activities. His understanding was that this meant he was being suspended or separated from the payroll for a period of time pending investigation. After an hour or so, a meeting between management and union representatives resulted in Hayse’s reinstatement, and he went back to work.

Hayse further testified that throughout the suspension and investigation, he believed he was losing his job and was very upset because it was the sole source of support for his family. A few minutes after the hearing he was on his way to Airfreight in a van to confer with someone at the request of the President of the Local, when he felt a sharp pain, like a fist, in his chest. He felt cool and clammy and perspired heavily, his breath was short and he felt that he was going to pass out. A co-worker called his doctor but could not get an appointment. He stayed at work. When Hayse went home he called Dr. Michael Simmons, who advised him to lie down and rest and call back if there was a recurrence. After a recurrence the next day, he went to Dr. Simmons who found his pulse and E.K.G. to be normal. He returned to work that day.

During the next twelve days, Hayse said he had 10 to 15 recurrences, resulting in his going to the emergency room twice to see Dr. Simmons. He did not miss any work and his heart and E.K.G. were always normal when checked. On September 23,1975, he was hospitalized for tests. Dr. Simmons, in his testimony, diagnosed Hayse’s case as paroxysmal auricular tachycardia (P.A.T.) caused by the acute tension of the suspension incident. He also testified that the later episodes related to the first such attack, Seaboard also offered deposition testimony of Dr. Simmons in which he stated that, although it was his own opinion that the P.A.T. was incident-related, he could not say there was a direct cause-effect relationship.

Dr. Simmons described the condition as a rapid uncontrolled heart rate, which produces physical changes in the body, requiring medical treatment to prevent heart damage. He also testified that, in his opinion, Hayse was recovered from such episodes but, when excited, might need to take Valium, a mild (or medium) tranquilizer.

Except for two weeks’ stay in the hospital for testing, Hayse continued to work at his regular job, performing most necessary tasks, although going more slowly, pacing himself and trying to avoid stress situations. He stated it was November 1976 before he was able to return to the type of work he is now doing.

In point of error No. one Hayse attacks the trial court’s finding that he did not incur an injury in the course of employment because the evidence establishes as a matter of law that he suffered an injury as defined under the Workmen’s Compensation Act.

Hayse argues that Baird v. Texas Employers’ Insurance Association, 495 S.W.2d 207 (Tex.1973) which holds that a heart attack caused by strain or over-exertion is an accidental injury to the physical structure of the body under the Workmen’s Compensation Act also applies to his case of P.A.T. allegedly caused by fear of losing his job. He also argues that Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972) and Henderson v. Travelers Ins. Co., 544 S.W.2d 649 (Tex.1976) support his position.

We disagree with this contention insofar as it is attempted to be applied in this case. As set forth in City of Austin v. Johnson, 525 S.W.2d 220, 221 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.): “To hold that worry and anxiety over job loss is ‘connected with what a workman has to do in performing his contract of service’ would be in our opinion not be reasonable.” This could be just as well said in this case. Plaintiff has not shown that the alleged injury was of a kind and character that had to do with and originated in the employer’s work, trade, business or profession, as required by Tex.Rev.Civ.Stat.Ann. art. 8309 § 1(4)(4) (1967). Texas General Indemnity Company v. Bottom, 365 S.W.2d 350 (Tex.1963).

We overrule Hayse’s point of error No. one for the reason that there is no evidence that Hayse’s condition had to do with the work, business, trade or profession of American Airlines. Indeed Dr. Simmons’s testimony was to the effect that the P.A.T. was related to Hayse’s mental and emotional state over an incident and not job-related. This testimony as well as Dr. Simmons’s testimony that he could not say there was a definite cause and effect relationship between the P.A.T. and the incident adequately supports the trial court’s decision.

We overrule Hayse’s remaining points of error because such points are necessarily predicated in our sustaining point of error No. one.

Affirmed.


author: WALTER, Justice.

text:
    PIONEER NATURAL GAS COMPANY, Appellant, v. Lester CARAWAY, Appellee.
    No. 5075.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 16, 1978.
    Rehearing Denied March 9, 1978.

      Ira L. Edwards, Jr., Gibson, Ochsner, Adkins, Harlan & Hankins, Amarillo, for appellant.
    Johnny Splawn, Splawn Law Offices, Inc., Lubbock, for appellee.
   WALTER, Justice.

Our opinion and judgment rendered on January 12, 1978, is hereby withdrawn and the following opinion and judgment is rendered in lieu thereof.

Lester Caraway brought suit for damages to his home resulting from a fire. Caraway proceeded to trial on his amended petition naming as defendants, S. E. Sparks and Thomas Wylie as partners d/b/a Sparks and Wylie Conoco, Pioneer Natural Gas Company and Gulf Insurance Company.

The cause of action asserted against Sparks and Wylie Conoco and Pioneer was based upon a claim of negligence. The cause of action asserted against Gulf was based upon a claim for breach of the insurance contract issued by Gulf to Caraway.

Gulf filed a motion for severance of Caraway’s cause of action on the insurance contract and this motion was granted. Thereafter, Gulf’s motion for intervention asserting its subrogation rights under the terms of the insurance contract was filed and granted.

The jury found against Sparks and Wylie Conoco and Pioneer, and judgment was rendered against them jointly and severally. Caraway was awarded $61,085.34 in damages. Pioneer has appealed. We affirm the judgment of the trial court.

On December 7, 1972, Sparks and Wylie Conoco delivered gasoline to Caraway’s farmhouse for the purpose of filling Caraway’s underground storage tank. While filling the tank, gasoline accidentally sprayed onto the outside wall of Caraway’s home. A fire resulted virtually destroying the residence.

Approximately four years prior to the fire, Pioneer Natural Gas Company installed a gas air conditioner. The air conditioner was installed near the underground storage tank. Caraway alleged the pilot light inside the unit was the igniting source of the fire and Pioneer was negligent in placing the unit in proximity to the storage tank.

Pioneer contends the court erred in submitting Special Issues 5 and 6 because use of the word “proximity” was so broad as constituting a comment on the weight of the evidence. We do not agree. Special Issues 5 and 6 read as follows:

“ISSUE NO. 5
Do you find from the preponderance of the evidence that the Defendant Pioneer Natural Gas Company placed the air conditioning unit in proximity to the underground tank?”
“ISSUE NO. 6
Do you find from the preponderance of the evidence that such placement of the air conditioning unit in proximity to the underground tank was negligence?”

Both special issues were answered in the affirmative.

The distance between the air conditioning unit and the underground storage tank was established by the evidence as being between ten and twenty feet. Caraway alleged, as a basis of his cause of action, Pioneer was negligent in positioning the air conditioning unit near the gasoline storage tank. Submission of Special Issues 5 and 6, using the word “proximity”, was supported by Caraway’s pleadings and evidence.

The word “proximity” is not a term of legal significance, but is a word of common usage and meaning. Therefore, the court was not required to define proximity. Golden v. Stevens, 138 S.W.2d 243 (Tex.Civ.App.—Eastland 1940, writ ref’d).

Rule 277, Texas Rules of Civil Procedure, gives the trial court discretion to either submit separate questions as to each element of a case or to submit issues broadly. We hold the trial court did not abuse its discretion and, therefore, did not comment on the weight of the evidence by using the word “proximity” in submitting Special Issues 5 and 6.

Pioneer also contends Caraway had actual knowledge of the open and obvious condition regarding the placement of the air conditioning unit thereby discharging, as a matter of law, any duty which may have been owed to Caraway by Pioneer. We do not agree with this contention.

The “no duty” doctrine, upon which Pioneer relies, is not applicable to the facts in the instant case. In Stafford v. Rodgers, 493 S.W.2d 297 (Tex.Civ.App.—Eastland 1973, writ dism’d), we approved the following language found in International Business Machines Corporation v. Pearsall, 422 S.W.2d 797 (Tex.Civ.App.—Dallas 1967, writ ref. n. r. e.):

“The ‘no duty’ doctrine applies only to occupiers of premises. The doctrine is not applicable here because appellant cannot be considered an occupier of premises since appellant did not have exclusive possession of the area in which its employee, King, was working. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963).”

See also: Restatement of the Law of Torts (2d Ed.), Section 328(e).

Pioneer was not the occupier of the premises nor was it in exclusive possession of the area where the air conditioning unit was positioned. Based upon the above authorities, we hold the “no duty” doctrine is not available to Pioneer. Furthermore, we recognize the Supreme Court has recently abolished the “no duty” doctrine. Parker v. Highland Park, Inc., 21 Tex.Sup.Ct.J. 18 (Feb. 11, 1978).

Pioneer further argues there is no evidence to support the jury’s finding that its negligence was the proximate cause of the fire. Alternatively, Pioneer argues the evidence is factually insufficient to support the jury’s finding of proximate cause or that such finding is against the great weight and preponderance of the evidence. We do not agree.

In passing upon no evidence points, we must apply the rule as stated in Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974):

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974). . ."

The Supreme Court in East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.1970) stated:

“. . . it is well settled that proximate cause includes two essential elements: (1) there must be a cause in fact — a cause which produces an event and without which the event would not have occurred; and (2) foreseeability. . ."

The cause in fact element of proximate cause must be proven beyond mere speculation, conjecture or guess. Texas Sling Company v. Emanuel, 431 S.W.2d 538 (Tex.1968); Leatherwood Drilling Company v. TXL Oil Corporation, 379 S.W.2d 693 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.). See also Sinclair Oil & Gas Company v. Adams, 392 S.W.2d 721 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.). Pioneer argues Caraway failed to establish this element by probative evidence. We hold there is some evidence of probative force establishing the cause in fact of the fire.

The testimony of two eyewitnesses established cause in fact beyond mere speculation. Mrs. Caraway testified:

“Q Do you have any idea what ignited it, you were standing there when it did, do you know from whence the flame came?
A I always believed it came from the air conditioner because that’s what went first and went up the side of the house.
Q Then you observed the flame started at the point of the air conditioner.
A Yes, sir.”

Mrs. Caraway, on cross-examination, testified:

“Q Now, you are clear in your recollection of the fire having started where that air conditioning unit was?
A Yes, sir.
Q In other words, this isn’t a hazy recollection or any question in your mind but that this is what you saw that afternoon?
A No, it’s not hazy.”

Co-defendant Sparks testified as follows:

“Q Do you have any idea where this fire came from?
A Well, yes, I have a pretty good idea.
Q Did you see it when it flashed?
A Yes, it flashed from the air conditioner right back and came right back on me.”

On redirect examination, Sparks testified:

“Q What do you want to swear to?
A I will swear where the fire came from.
Q Where?
A From under the air conditioner.”

In Thoreson v. Thompson, 431 S.W.2d 341 (Tex.1968), the Supreme Court reversed and remanded the court of civil appeals’ holding that there was no evidence of probative force to support the jury’s finding of proximate cause. The court relied upon the testimony of an adverse eyewitness who testified:

“Q Could you tell by observing where the fire started?
A It started at the truck.
Q Started under the truck?
A Yes.”

The court reaffirmed its position that broad latitude should be allowed jurors to infer proximate cause from the surrounding circumstances and held the testimony of the eyewitness “constituted some evidence from which the jury could reasonably infer . the cause in fact” of the fire. Thoreson v. Thompson, 431 S.W.2d 341 (Tex.1968).

The foreseeability element of proximate cause does not require the particular act to have been foreseen, but that the injury be of such general character as might reasonably have been anticipated. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962); Missouri Pacific Railroad Company v. American Statesman, 552 S.W.2d 99 (Tex.1977). The rule was clearly stated in Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970):

“The foreseeability element of proximate cause is established by proof that the actor as a person of ordinary intelligence and prudence should have anticipated the danger to others created by his negligent act, and the rule does not require that he anticipate just how injuries will grow out of that dangerous situation . The test is not what the wrongdoer believed would occur; it is whether he ought reasonably to have foreseen that the event in question, or some similar event, would occur . . . ”

The record shows Pioneer’s agents were aware of the gasoline storage tank at the time the gas air conditioning unit was installed and knew from time to time gasoline trucks would come to fill the tank. Based upon this evidence, we hold the jury was justified in concluding Pioneer should have foreseen the dangerous condition it created by positioning the air conditioning unit near the gasoline storage tank and that Pioneer could have reasonably anticipated a fire resulting therefrom.

We find there is some evidence to support the jury’s finding of proximate cause. Furthermore, after carefully considering all the evidence, as required by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), we hold the evidence is not factually insufficient to support the jury’s finding and the finding of proximate cause is not against the great weight and preponderance of the evidence.

Pioneer next asserts two points of error regarding new and intervening or independent cause. First, Pioneer complains the trial court erred in refusing to submit its requested instruction on new and intervening cause. Secondly, Pioneer argues the negligence of Sparks and Wylie Conoco was a new and independent cause which superseded any negligence of Pioneer. We overrule both points of error.

New and independent cause is not an affirmative defense, but is an element to be considered by the jury in determining the existence of proximate cause. Dallas Railway & Terminal Company v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952). A recommended instruction to the jury on new and independent cause is found in 1 Texas Pattern Jury Charges 47, PJC 2.03, which reads:

‘“PROXIMATE CAUSE’ means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
‘NEW AND INDEPENDENT CAUSE’ means the act or omission of a separate and independent agency, not reasonably foreseeable, which destroys the casual connection, if any, between the act or omission inquired about and the occurrence in question, and thereby becomes the immediate cause of such occurrence.”

The trial court’s charge reads as follows:

“By the term ‘proximate cause’, as used in this charge, is meant that cause which, in its natural and continuous sequence, unbroken by any new and independent cause, produced the result complained of, and without which said result would not have occurred, and before an act or omission can be the proximate cause of said result, it ought to have been foreseen, or reasonably anticipated by a person of ordinary prudence, in the exercise of ordinary care, that the result complained of, or some similar result would occur naturally and probably in the light of the attending circumstances. There may be more than one proximate cause.
The term ‘new and independent’ means the act or omission of a separate and independent agency which destroys the causal connection between the negligent act or omission of the plaintiff or the defendant — or either of them and the injury complained of, and thereby becomes, in itself, the immediate cause of such injury.”

We hold this charge properly instructed the jury on new and independent cause.

In determining whether the negligence of Sparks and Wylie Conoco was a new and independent cause, we rely on the criteria suggested in Humble Oil & Refining Co. v. Whitten, 427 S.W.2d 313 (Tex.1968):

“. . .In deciding whether an act is a concurring or a new and independent cause we confront the difficulty of applying familiar principles to specific facts. Some of the criteria which aid decisions such as this, are found in section 442, Restatement, Second, Law of Torts:
‘The following considerations are of importance in determining whether an intervening force is a superseding cause of harm to another:
(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.’ ”

A review of these criteria requires the conclusion that Sparks and Wylie Cono-co’s negligent act was not a new and independent cause of the fire. The same harm was brought about by the negligence of Pioneer and of Sparks and Wylie Conoco. The jury could have properly concluded that a fire was an expected consequence of the dangerous condition created by Pioneer even before Sparks and Wylie Conoco’s negligent act. The negligent act of Sparks and Wylie Conoco did not independently cause the fire but was dependent upon the placement of the gas air conditioning unit by Pioneer. Therefore, the negligence in filling the tank, allowing gasoline to spew from the filler pipe, was not a new and independent cause relieving Pioneer of its negligence in positioning the air conditioning unit near the gasoline storage tank.

Pioneer also complains error was committed when the trial court allowed John Vick-ers, attorney, to represent co-defendant Sparks and Wylie Conoco and also represent Gulf Insurance Company as intervenor to protect subrogation rights. We overrule this point.

At the time of trial in the instant case, Gulf had made no payment to Caraway on its insurance contract. Therefore, no subro-gation rights had matured. Cannon Ball Truck Stop, Inc. v. Mobil Oil Corporation, 501 S.W.2d 927 (Tex.Civ.App.—Houston (14th Dist.) 1973, writ ref’d n. r. e.).

The rule determining who may complain of possible conflicts of interest is found in Ferguson v. Alexander, 122 S.W.2d 1079 (Tex.Civ.App.—Dallas 1938, writ dism’d jdgmt. cor.):

“The doctrine seems to be well settled that, ‘The objection that an attorney is disqualified by reason of his representing adverse interests, is available only to those as to whom the attorney in question sustains or has sustained the relation of attorney and client * * *.’ 7 C.J. Secundum, Attorney and Client, p. 826, § 47. To the same effect see: Harvey v. Harvey, 202 Wis. 553, 231 N.W. 580, 583; Michel v. McKenna, 199 Wis. 608, 277 N.W. 396; Van Veen v. Van Veen, 213 Iowa 323, 236 N.W. 1, 8, 238 N.W. 718.”

Vickers did not sustain an attorney-client relationship with Pioneer. Pioneer may not complain of Vickers’ representation.

We have carefully considered all of Pioneer’s points of error and find no merit in them. They are overruled.

The judgment is affirmed.


text:
    Jack Porter HOGUE, Appellant, v. NATIONAL BANK OF COMMERCE OF SAN ANTONIO, Appellee.
    No. 5102.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 16, 1978.
    Rehearing Denied March 9, 1978.
    James L. Branton, Hardberger, Branton & Herrera, Chilton Maverick, Haight, DeW-ees & Maverick, San Antonio, for appellant.
    J. Burleson Smith, R. Laurence Macon, Patrick K. Sheehan, Cox, Smith, Smith, Hale & Guenther, San Antonio, for appel-lee.
   WALTER, Justice.

Jack Porter Hogue filed suit against National Bank of Commerce of San Antonio under Article 14.07 of the Texas Election Code seeking statutory damages for double the amount of a loan made by the Bank to the Good Government League which opposed him in the 1975 San Antonio City Council election. In a trial before the court without a jury, judgment was rendered that Hogue take nothing. Hogue has appealed.

Hogue contends the court erred in his conclusion of law number one which is as follows:

“Article 14.07 of the Texas Election Code, as it existed on March 6, 1975 (unless otherwise specified, the term ‘Article 14.07’ will refer to the Article as it existed on March 6,1975), did not prohibit the loan that is the subject of this lawsuit because that article authorizes legitimate lending institutions to make bona fide loans to political committees unless the purpose of the lending institution in making the loan was to aid or defeat in the election or nomination of any candidate. In this case the parties stipulated that the Bank’s purpose was not to aid or defeat the nomination or election of any candidate.”

Article 14.07, Texas Election Code, as it existed on March 6, 1975, the date of the loan, was as follows:

“Sec. 8. Section 243, Texas Election Code, as amended (Article 14.07, Vernon’s Texas Election Code), is amended to read as follows:
‘(a) Except to the extent permitted in Article 213 of the Penal Code of Texas, 1925, no corporation shall give, lend or pay any money or other thing of value, or promise to give, lend, or pay any money or other thing of value, directly or indirectly, to any candidate, political committee, campaign manager, assistant campaign manager, or any other person, for the purpose of aiding or defeating the nomination or election of any candidate or of aiding or defeating the approval of any political measure submitted to a vote of the people of this state or any subdivision thereof; provided, however, that nothing in this section or in Article 213 of the Penal Code shall prevent the making of a loan or loans to any candidate for campaign purposes by any corporation which is legally engaged in the business of lending money and which has conducted such business continuously for more than one year prior to the making of such loan, provided the loan is made in due course of business and is not directly or indirectly a contribution.
‘(b) Any corporation making or promising a gift, loan, or payment to any candidate, political committee, campaign manager, assistant campaign manager, or other person in violation of Subsection (a) of this Section shall be civilly liable for double the amount or value of such loan or gift, promised or made, to each opponent of the candidate or political committee favored by such gift, loan, or payment, or to the particular candidate or candidates, political committee or political committees opposed by such gift, loan, or payment and additionally shall be civilly liable to the State of Texas for an amount equal to triple the amount or value of such loan or gift, promised or made.’ ”

Article 14.07 as it existed on March 6, 1975, the date of the loan, prohibited a corporation from lending money to a political committee for the purpose of aiding or defeating the nomination or election of a candidate.

The stipulation of facts reveals the loan was made by the Bank in the ordinary course of business and the Bank’s sole purpose in making the loan was to make a profit. The trial court construed the word “purpose” as used in Article 14.07 to mean the purpose of the Bank in making the loan. Hogue contends the word “purpose” in the Article refers to the actual use of the proceeds by the Committee.

Hogue presents no authority in support of his contention but urges the court to “apply the rule of common sense and reason”.

The word “purpose” is synonymous with the words plan, intent, object and aim. It is our view a strict and narrow construction of this statute, that is penal in nature, should not be extended beyond its plain import and terms.

In Pecora v. Queens County Bar Association, 46 Misc.2d 530, 260 N.Y.S.2d 116 (Sup.Ct.1965), the court said:

“Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms . . . Acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal . .

We hold the court properly construed the word “purpose” to mean the purpose or intention of the Bank in making the loan.

Another reason the judgment should be affirmed is because the court correctly construed the exemption contained in Article 14.07(a) authorizing loans to “candidates” to also exempt bona fide loans to “political committees”.

Another reason the judgment should be affirmed is because Article 14.07 was repealed and the amended statute expressly authorized loans to be made by banks to political committees.

Hogue’s cause of action was not saved by the Code Construction Act, Art. 5429b-2, V.A.T.S. Section 3.11(b) of the Act provides that if the penalty is reduced by a reenactment, revision or amendment of a statute, the penalty shall be imposed according to the statute as amended. The amended statute which expressly authorized loans by a Bank to political committees would be controlling and Hogue would have no cause of action against the Bank under the amended statute. Aetna Insurance Company v. Richardelle, 528 S.W.2d 280 (Tex.Civ.App.—Corpus Christi 1975, writ ref. n. r. e.).

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: STERNBERG, Justice.

text:
    Reike L. SHANNON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 10, 1978.
    As Modified On Denial of Rehearing Feb. 21, 1978.
    Jack E. Farley, Public Defender, M. Marie Allison, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On January 24, 1977, appellant was indicted by the McCracken County Grand Jury for two offenses of murder committed during the course of a burglary in the first degree (KRS 507.020(2)(b)) and one offense of murder by intentional acts which resulted in multiple deaths (KRS 507.020(2)(e)). On the same day that the indictment was returned, the Commonwealth’s Attorney filed a written election (KRS 532.030(1)) to prosecute the appellant for the capital offense of murder. At his arraignment on January 27, 1977, the appellant was represented by counsel and he entered a plea of not guilty. On February 22, 1977, after plea bargaining, the Commonwealth’s Attorney moved to amend the indictment from charging two capital offenses to charging two noncapital offenses and to dismiss the third charge. On the same day appellant sought to withdraw his not guilty plea and to enter a plea of guilty. The trial judge, thereupon, interrogated both the appellant and his counsel relative to this action, after which the plea of guilty was received by the court, and the appellant was found guilty of the two offenses of noncapi-tal murder. The entry of judgment was postponed pending a presentence investigation and report (KRS 532.050). On February 28, 1977, six days after the court received appellant’s guilty plea, he was returned into court and judgment pronounced. The court sentenced him to life imprisonment on each of the two offenses, with the condition that the sentences run consecutively.

On March 8, 1977, a notice of appeal was filed wherein appellant stated, “The sole question to be decided is whether the sentences were to be Concurrently as the defendant believes to be the law or as was the recommendation of the Commonwealth Attorney and the sentence of the Court.” Appellant attempts to present three issues, as follows:

“I. Were appellant’s guilty pleas invalid?
II. Should the appellant’s case be vacated because the trial court failed to follow the sentencing procedures of KRS 532.050?
III. Was it erroneous for the trial court to order appellant’s sentences to run consecutively?”

Appellant argues that his guilty plea was invalid because it was not entered knowingly, intelligently and voluntarily. The record does not disclose that this contention was ever brought to the attention of the trial judge so as to afford him an opportunity to make a determination of whether the guilty plea was entered knowingly, intelligently and voluntarily. The issue being raised for the first time on appeal and no justification having been shown for it not having been sooner presented, it comes too late for appellate review. Dalton v. Commonwealth, Ky., 478 S.W.2d 734. (1972).

Counsel for appellant vigorously argues that he was not sentenced in the manner required by KRS 532.050. His only attack is that,

“The record in the instant case contains absolutely no mention of the trial judge’s informing Appellant or his counsel of the contents of the presentence report or of Appellant’s requesting or failing to request time within which to controvert the data contained in the report. * * *”

On February 22, 1977, the trial judge entered an order which, among other things, provided that “* * * the Division of Probation and Parole is hereby ordered to prepare a written report of its presen-tence investigation of the defendant.” The final judgment which was entered on February 28, 1977, contains the statement “* * * and the Court having given due consideration to the written report of the presentence investigation prepared by the Division of Probation and Parole, and to the nature and circumstances of the crime, and the history, character, and condition of the defendant.” The Office of the Attorney General, on November 10, 1977, moved this court to supplement the record of the trial court with a copy of an order which was entered in the McCracken Circuit Court on November 9, 1977, which provides:

“and the Court having advised the defendant and his counsel of the factual contents and conclusions of the pre-sen-tence investigation report and having given the defendant and his counsel a fair opportunity and reasonable period of time within which to controvert the same, and such offer being declined, * * *”

Certification is made that a copy of this motion was mailed to counsel for appellant on the day it was filed, which was November 10, 1977. However, no response to the motion has been filed by counsel for appellant. By order of December 6, 1977, this court granted the motion.

It is fair to say that counsel for appellant seems to be grasping at straws and that this straw has given way to the weight of the true facts. The record reflects that the appellant was sentenced in the manner as required by KRS 532.050.

Appellant states that, “It was erroneous for the trial court to order appellant’s sentence to run consecutively.” The soundness of this argument is tacitly admitted by counsel for appellee, and well it should be. KRS 532.110(l)(c) provides:

“The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.-080 for the highest class of crime for which any of the sentences is imposed.”

KRS 532.080(6)(a) limits the sentence to no more than life. Consequently, the sentence of life imprisonment for each of the two murders, with provision that the sentences run consecutively, is not authorized.

The comments under section 3460 of the final draft (1971) of the Kentucky Penal Code, dealing with concurrent and consecutive terms of imprisonment, suggests as follows:

“* * * The third exception, provided in Subsection (l)(c), places an upper limit on the maximum term of imprisonment that can be imposed through consecutive indeterminate terms. This subsection establishes a maximum for accumulated indeterminate terms that is equivalent to the maximum term that can be imposed on a persistent felony offender under Section 3445. For example, if an offender stands convicted of three offenses, the greatest of which is a Class B felony, his consecutive sentences when accumulated could equal an indeterminate term which has a maximum of life imprisonment. But, if the greatest of his offenses is a Class C felony, his consecutive sentences when accumulated could equal an indeterminate term having a maximum of no more than twenty years.”

We hasten to add, however, that regardless of the number of life sentences that appellant was ordered to serve consecutively, the legislature has provided otherwise. Appellant has not been prejudiced by the challenged order. We notice, however, that this matter was not presented to the trial court for its consideration. It, therefore, has not been preserved for appellate review.

The judgment is affirmed.

All concur.


text:
    Wayne LYCANS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 31, 1978.

      Francis D. Burke, Pikeville, for appellant.
    Robert F. Stephens, Atty. Gen., J. Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

The appellant was charged with and, in due time, pled guilty in the Pike Circuit Court to the offenses of armed robbery, malicious shooting at without wounding, malicious striking with intent to kill, escape from jail, and an attempt to escape from jail. His sentences were ordered to run concurrently. While in jail awaiting trial, appellant’s efforts to be released from custody on bail proved fruitless. Lycans v. Burke etc., Ky., 453 S.W.2d 8 (1970). Subsequent to his trial and sentencing, appellant filed two successive, unsuccessful RCr 11.42 motions to set aside the judgment. He appealed to this court from the order of the trial court denying the latter motion, where it suffered the same unsuccessful fate. Lycans v. Commonwealth, Ky., 511 S.W.2d 232 (1974). Thereupon, the appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Kentucky. The petition was granted and the Commonwealth was ordered to resentence appellant within 120 days from October 4,1976, which was done. The extent of the penalty that should be adjudged against the appellant for armed robbery was tried to and determined by a jury, and fixed at life imprisonment. This appeal is from that judgment.

The circumstances surrounding the commission of the offense of armed robbery, which resulted in the remaining charges, are these. James Dotson operated a small store at Stone, Pike County, Kentucky. In November, 1969, the appellant, using a deadly weapon and accompanied by an accomplice, robbed Dotson of his money. In the course of the robbery Dotson was handcuffed, sprayed with a chemical, and beaten over the head, face and body until he was unconscious. After the robbery Dotson was hospitalized, where he remained in a coma for seven or eight days. Claude Trout, a regular neighborhood customer of Dotson’s, testified that he went to Dotson’s store on the present occasion to buy a soft drink; that the store’s door was locked; that when he couldn’t get in, he hollered for Dotson; and that upon receiving no response, he looked in a window, where he saw the appellant. The appellant shot at him, but missed. Objection was made to this testimony, but it was overruled by the court.

On this appeal appellant presents two issues:

“1. Where, on a plea of guilty, a charge or armed robbery is submitted to a trial jury for the fixing of punishment, may the Commonwealth introduce evidence of other offenses committed during the robbery to enhance punishment?
2. Where, on a plea of guilty, a charge of armed robbery is submitted to a trial jury for the fixing of punishment, may the Commonwealth’s Attorney make the ‘Golden Rule’ argument?”

It is significant that while the robbery was actually in progress, appellant shot at Claude Trout. Mr. Trout was outside looking in and appellant was inside looking out. Counsel for appellant objected to the introduction of this testimony, arguing that evidence of other crimes committed during the robbery are not admissible as evidence before a jury that had been impaneled to determine punishment. Also, appellant takes the position that in this particular case this evidence was introduced in an effort to persuade the jury to fix appellant’s penalty at the maximum. This, the Commonwealth’s Attorney had a right to do.

First of all, the Commonwealth had a right to and did select a jury to fix a penalty for these hideous crimes. Commonwealth v. Howard, Ky., 287 S.W.2d 926 (1956). It then became the prerogative of the prosecuting attorney to present to the jury such evidence as would enable it to fully understand and envision the manner in which the robbery was carried out, the identity of the persons charged with the offenses, the motive for the robbery, and any and all other facts pertinent to a full understanding of the circumstances surrounding the commission of the offenses. Appellant argues that since he had pled guilty to the offense of armed robbery, there was no need for this testimony relating to the offense of shooting at without wounding. Be that as it may, the testimony pertained to a part of the sequence of evidence which helped give the jury the entire picture and thus aided its perspective.

The appellant would have this court believe that he was not dealt with fairly. The record does not bear out this supposition. The challenged testimony is unquestionably a part of the res gestae and admissible.

Further, counsel for appellant accuses the Commonwealth’s Attorney of making the “Golden Rule” type of argument to the jury. In a criminal case a golden rule type of argument is one that urges the jurors collectively or singularly to place themselves or members of their families or friends in the place of the person who has been offended and to render a verdict as if they or either of them or a member of their families or friends was similarly situated.

In his summation to the jury, the record reflects that the Commonwealth’s Attorney said, “ * * * They almost beat him to death and left his eye laying out on his cheek and left him laying there handcuffed, bleeding all over. Suppose that you run a store and somebody comes in on you and does that to you. What’s it worth?" Appellant’s counsel objected to the latter statement. The trial judge should have sustained the objection and should have admonished the jury not to consider it for any purpose.

The remarks of a Commonwealth’s Attorney to cajole or coerce a jury to reach a verdict is error. However, the criterion is whether the error was prejudi-cially erroneous. Appellant refers to this type of argument as the “Golden Rule” argument. The Commonwealth argues that the golden rule type of argument is a creature of civil law and not of criminal law. We have referred to this type of argument in civil cases as a golden rule argument. Stanley v. Ellegood, Ky., 382 S.W.2d 572 (1964). We have not so referred to it in criminal cases, although we have recognized the salutary principles upon which it is established. Dennis v. Commonwealth, Ky., 526 S.W.2d 8 (1975). We have no hesitancy in saying that the golden rule type of argument is applicable in both civil cases and criminal cases.

The Attorney General characterizes the remark of the Commonwealth’s Attorney as a reference to the jury collectively rather than individually. The Commonwealth’s Attorney appropriately explained to the jury that it was trying the appellant on the robbery charge and that the other cases had been disposed of and should not be considered by it in arriving at a decision in the case on trial. The argument of the Commonwealth’s Attorney was short, terse, and to the point. Other than for this one offhand remark, it was wholly within the bounds of propriety. It matters not whether the challenged remarks of the Commonwealth’s Attorney in his closing argument referred to the jurors collectively or individually, they were not of such significance as to prejudice the jury.

The judgment is affirmed.

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


author: PER CURIAM.

text:
    S. Rush NICHOLSON, Appellant, v. JUDICIAL RETIREMENT AND REMOVAL COMMISSION, Appellee.
    Supreme Court of Kentucky.
    Jan. 31, 1978.

      Frank E. Haddad, Jr., Louisville, for appellant.

      Paul W. Willis, Executive Secretary of the Judicial Retirement and Removal Com’n, Larry S. Roberts, Amos S. Eblen, Chairman, Judicial Retirement and Removal Com’n, Lexington, for appellee.
   PER CURIAM.

This is an appeal from a final order of the Judicial Retirement and Removal Commission which found that Nicholson, a judge of the Jefferson Circuit Court, so ineptly handled a RCr 11.42 proceeding as to bring the judicial office into disrepute. The Commission issued a public censure. RAP 4.020(b), now SCR 4.020(b). He appeals and attacks the order on three fronts.

I.

Nicholson contends that the “ex post fac-to” prohibitions of the state and federal constitutions prohibit the Commission from acting in this case because the conduct in question occurred after the effective date of Section 121 of the Kentucky Constitution but before that section was implemented by the promulgation of RAP 4.000, et seq. by the Supreme Court. His position is that the constitutional authorization for discipline of judges “for good cause” is so vague as to be ineffective without implementation by the publication of rules establishing more particular conduct guidelines. He asserts that this vague standard provides no advance warning of that conduct which would fall within its perimeter. Hence he claims that this proceeding deprives him of due process of law.

It is clear that the “ex post facto” prohibition applies only to criminal matters. Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (1925); Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Calder v. Bull, 3 U.S. (3 Dall.) 386,1 L.Ed. 648 (1798). A proceeding before the Commission is not a criminal matter. See Napolitano v. Ward, 457 F.2d 279 (7th Cir. 1972), cert. den. 409 U.S. 1037, 93 S.Ct. 512, 34 L.Ed.2d 486, reh. den. 410 U.S. 947, 93 S.Ct. 1351, 35 L.Ed.2d 616; In re Haggerty, 257 La. 1, 241 So.2d 469 (1970); Sharpe v. State, 448 P.2d 301 (Okl.Jud.1968), cert. den. 394 U.S. 904, 89 S.Ct. 1011, 22 L.Ed.2d 216.

The purpose of Section 121 of our constitution is the regulation of the conduct of those persons charged with the administration of justice. The aim of proceedings instituted pursuant to this section is to improve the quality of justice administered within the Commonwealth by examining specific complaints of judicial misconduct, determining their relation to a judge’s fitness for office and correcting any deficiencies found by taking the least severe action necessary to remedy the situation. The target is not punishment of the judge. Consequently, the action of the Commission does not constitute a violation of the “ex post facto” prohibitions of the federal and state constitutions. See Flemming v. Nestor, 363 U.S. 603, 614, 80 S.Ct. 1367, 4 L.Ed.2d 1435, 1446 (1960); DeVeau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109, 1120 (1960). Cf. Ex parte Garland, 4 Wall. 333, 71 U.S. 333,18 L.Ed. 366 (1866); Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 18 L.Ed. 356 (1866).

Nicholson can not claim a lack of notice that his conduct would be subject to review by the Commission. The authority to remove members of the judiciary for good cause is not ambiguous to the members of the legal profession. Such phrases as “for cause” or “for good cause” are terms of art which possess a special meaning manifest to the profession when used in this context. These terms denote a legal cause which affects the ability and fitness of a judge to perform the duties of the office. Napolitano v. Ward, 317 F.Supp. 79 (D.C.Ill.1970); Sarisohn v. Appellate Div., Second Dept., Supreme Court, 265 F.Supp. 455 (D.C.N.Y.1967).

Such a standard is not so vague as to violate due process requirements. Although the specific acts of misconduct encompassed within the phrase are numerous, ample guidelines for the determination of proper conduct may be found in the ethical standards applicable to lawyers and judges adopted by national and state bar associations and in the moral standards expected of judicial officers by the public. Sarisohn v. Appellate Div., supra. Such a standard is no more vague than that of “good behavior” used with respect to federal judges contained in Section 1 of Article 3 of the United States Constitution. Friedman v. State, 24 N.Y.2d 528, 301 N.Y.S.2d 484, 249 N.E.2d 369 (1969).

II.

The Commission investigated the allegations of misconduct, instituted formal proceedings and issued a public censure after conducting an evidentiary hearing. Nicholson contends that the mere combination of the investigative and adjudicative functions within the Commission violates his due process right to an unbiased trier of fact. He argues that involvement in the investigation of this incident so influenced the members of the Commission that they could in no way remain impartial at the adjudicative stage of the proceedings.

A similar position has been taken by others in similar situations in the past and has been rejected. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); NLRB v. Donnelly Garment Co., 330 U.S. 219, 67 S.Ct. 756, 91 L.Ed. 854 (1947). This issue was recently raised in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). This case dealt with the combination of investigative and adjudicative functions within an examining board vested with the authority to discipline physicians pursuant to a Wisconsin statute. The court rejected the argument that Nicholson raises here, 421 U.S. at 47, 95 S.Ct. at 1464, 43 L.Ed.2d at 723, 724:

“The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”

This case does not present a situation where common sense dictates that the investigative and adjudicative roles must be played by different persons in order to avoid inevitable bias. E. g., Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Nicholson has not overcome the presumption of honesty and integrity of the members of the Commission, most of whom are members of the bench or bar and cognizant of the proper standards applicable at each stage of the proceedings. “The case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a denial of due process . ” 2 Davis, Administrative Law Treatise, Sec. 13.02, p. 175 (1958). E. g., In re Haggerty, 257 La. 1, 241 So.2d 469 (1970).

III.

Nicholson challenges the authority of the Commission to issue a public censure. Because Section 121 of the Kentucky Constitution expressly delineates only three courses of action, retirement for disability, suspension without pay and removal for cause, he contends that the Commission is precluded from imposing lesser sanctions. We interpret this section differently.

The language of Section 121 is so similar to the language contained in Article YI, Section 22(a) of the New York Constitution, before its amendment in 1975, that we conclude that the drafters of Section 121 used Section 22(a) as a model. Section 22(a) of the New York Constitution, effective from 1948 to 1975, created a Court on the Judiciary and expressly provided that a judge could be removed for cause or retired for mental or physical disability. Pursuant to this provision the Court on the Judiciary issued a severe public reprimand to two judges without removing or retiring them. In re Sobel and Leibowitz, 8 N.Y.2d(a) (Ct. on the Jud.1960).

Our own reason and experience leads us to the same result reached by the New York court. If the Commission can remove a judge from office, it can certainly impose lesser sanctions in order to achieve the ultimate goal of judicial purification. We hold that the express grant of authority to retire, suspend or remove judges for good cause contained in Section 121 of the Kentucky Constitution includes by implication the authority to impose the lesser sanctions set forth in RAP 4.020(b).

IV.

On September 27,1977, the date on which the Commission decided this case, and for a considerable period prior thereto, amendment of RAP 4.020, now SCR 4.020, was under consideration by this court. On October 14, 1977, this court amended the rule effective January 1, 1978. One of the most significant changes was to add subsection (d) which provides: “An erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.”

The purpose of this addition was to make explicit that which we recognized to be implicit in our constitution and the rule. In a state which has an elected judiciary incompetence which is not gross and persistent can be safely left to elimination at the ballot box. Error can be adequately corrected by the appellate courts. Any other approach to the problem would destroy judicial independence by causing judges to keep one eye on their reversal rate and the other on the Commission. Both judicial eyes should be trained on the just disposition of the case at hand and not on the welfare of the sitting judge.

The final order of the Judicial Retirement Commission is vacated and the cause is remanded to the Commission for reconsideration in the light of section IV of this opinion.

All concur.


text:
    COMMONWEALTH ex rel. Ed W. HANCOCK, Attorney General, Appellant, v. Maurice BOWLING, Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.

      Ben B. Fowler, Stites, McElwain & Fowler, Frankfort, for appellant.
    Larry M. Greathouse, Frankfort, for ap-pellee.
   PER CURIAM.

This is an appeal from a judgment which dismissed the ouster proceedings instituted by the attorney general against appellee, a member of the Board of Education of Owen County.

In November 1972, Dr. Maurice Bowling, appellee, was elected for a second consecutive term as a member of the Owen County Board of Education. On January 2, 1973, the Owen County Fiscal Court appointed Dr. Bowling to the Owen County Hospital Board, and reappointed him to the hospital board on March 5, 1974.

The instant suit, initiated by the attorney general prior to the selection by the Owen County Board of Education of a new school superintendent, sought to oust appellee from his position on the school board. The attorney general cited KRS 61.080, KRS 160.180(l)(d), and section 165 of the Constitution of Kentucky for the proposition that membership on the local board of education, a state office, was incompatible with membership on the Owen County Hospital Board.

The trial court made the following findings concerning the Owen County Hospital Board: The hospital board was established by order of the Owen County Fiscal Court. Members of the hospital board serve without compensation. The Owen County Fiscal Court exercises complete authority over the appointment of the hospital administrator, who oversees the operation of the hospital in conjunction with the hospital board. All actions of the hospital board are subject to the approval of the fiscal court. Although most actions of the hospital board have been approved by the fiscal court, occasionally the fiscal court has vetoed certain recommendations of the hospital board. The hospital board serves as an advisory body to the fiscal court and is not an agency or deputyship of the county as those terms are used in KRS 160.180(l)(d).

A study of the evidence convinces us that the trial court’s findings concerning the advisory nature of the hospital board were not clearly erroneous. And we agree with the trial court’s conclusion that appellee, as a member of the hospital board, was not a city or county officer or employee thereof within the meanings of KRS 61.080, KRS 160.180(l)(d), or section 165 of the Kentucky Constitution. Cf. Kereiakes v. Graham, Ky., 458 S.W.2d 162 (1970).

The judgment is affirmed.

All concur.