author: SPURLOCK, Justice. MASSEY, Justice,

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Allon D. WILSON, Appellee.
    No. 17977.
    Court of Civil Appeals of Texas, Fort Worth.
    March 9, 1978.
    Rehearing Denied April 6, 1978.

      Henderson, Bryant & Wolfe, and James E. Henderson, Sherman, for appellant.
    Henry & Hatcher, Gainesville, Kelsey, Wood & Gregory and Richard H. Kelsey, Denton, for appellee.
   OPINION

SPURLOCK, Justice.

Allon D. Wilson, the injured worker, obtained judgment in the trial court upon a jury verdict for workmen’s compensation benefits for total and permanent incapacity, beginning on August 12, 1972, the date of his injury. The insurance carrier, Texas Employers’ Insurance Association, has perfected its appeal.

We affirm.

By three points of error, the insurance carrier contends that the trial court’s judgment should be reversed because: (1) the evidence did not support a finding of any total incapacity under the workmen’s compensation law, because the worker did not sustain any loss of earning capacity; (2) the jury’s findings of permanent and total incapacity are so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust; and (3) since for three and one-half years after his injury, he retained his employment with the employer for whom he worked at the time of his injury (with periodic increases in wages), and thereafter (but before trial) obtained new employment at even higher pay for one year before trial, he could not have been totally incapacitated under the workmen’s compensation law.

Prior to his injury, the worker was an oil field roustabout, doing heavy physical labor in the oil field. His duties included (among others) the loading and unloading of boxcars, operating winch equipment, working on the rig, and driving various vehicles. His job necessitated climbing, lifting, stooping, and bending. The worker received an on-the-job injury while working for Ballew Trucking Company, for whom he had worked for seventeen years. The injury occurred on August 12, 1972. After that time, he had to have help from his fellow workers in doing his work. He was no longer capable of doing the same kind of work for his employer that he could do prior to his injury, even though he continued in the employment of that employer. The evidence established that before and after the accident, he worked long hours (including substantial overtime) because of economic necessity. Since the time of his injury, he has been getting progressively worse.

Dr. Gary Dodson, a chiropractor, testified that Wilson had approximately a fifty percent partial disability of his whole body and an eighty percent disability to his right arm. There was a collapse or narrowing of the disc space between C-7 and T-l which developed as a result of the accident. There is evidence of a narrowing of the disc space between C-4 and C-5. There has been some alteration in the sixth cervical segment, which puts further stress on the bones above. There is compression of the nerve roots in these areas. This irritates and causes some disfunction and pain in the nerves that go through this area and supply a portion of the arms. The first X-rays did not disclose arthritis; however, later X-rays demonstrated that he had developed traumatic arthritis with arthritic spurs pressing into the nerves. This arthritic condition is becoming progressively worse.

Texas Employers’ Insurance Association sent the worker to Dr. David Steiner, an orthopedic surgeon. He testified that he had seen the patient at least nine times between November 16, 1973, and April 28, 1975. He testified that the major problem is nerve root irritation and the thoracic outlet syndrome is secondary. The surgery that he had recommended consisted of fusing the cervical spine, which meant removing the disc at the area of irritation. The worker had considerable tenderness in the base of his neck, and he had some discomfort hyperextending and flexing his neck. The doctor also found that he had a weakness in the grip of his right hand, which indicated to him some nerve impairment. This nerve irritation is located at C-7. He also testified that the worker is suffering from numbness in his right arm. He testified that Mr. Wilson had a disability of thirty percent as to his upper extremity. He prescribed pain medication and a cervical collar. Since the time of the accident, arthritis had developed in his neck and he was becoming progressively worse.

Dr. William F. Powell, who is one of two of the injured worker’s regular family doctors, testified that there was a thirty percent disability to the man’s body as a whole. He further testified that if Mr. Wilson came to him for a pre-employment physical, he would not pass him. He had often given Mr. Wilson shots at the emergency room in order to relieve his pain. He has a narrowing of disc space between C-3 and 4 and between C-4 and 5. Traumatic arthritis has developed. His condition will get progressively worse.

Dr. R. L. McLeroy, who practices medicine with Dr. Powell, had been the injured worker’s doctor for over twenty years. He testified that there was about a thirty percent disability to the worker’s body as a whole. Further, he testified that the worker had no arthritis at first, but immediately after the injury, he had arthritis that had developed as a result of the accident. He has a thoracic outlet syndrome. Because of his injury, he has had some wasting of the muscles which could result in paralysis of the arm in the future. This condition is also beginning to develop in the left arm. He can work if he doesn’t have to lift his arms up. This doctor performs pre-employment physical exams and would not pass him as a laborer or doing any activity involving stooping, bending or lifting. Also, he testified that this man’s condition will become worse.

It is a well-established rule that no medical evidence is needed to support a total and permanent jury verdict in workmen’s compensation cases. Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.). But in the case at bar, there is substantial medical evidence.

In its instructions to the jury, the court defined “total incapacity” as follows: the term “total incapacity” does not mean absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment. Within the meaning of the workmen’s compensation act, the term “total incapacity” does not mean “total incapacity” as that term is understood by the general public. Rather, we hold that the term “total incapacity” means that one is disabled from performing the usual tasks of a workman to such an extent that he cannot get and keep employment performing the usual tasks of a workman. See Texas Employers’ Insurance Association v. Johnson, 323 S.W.2d 345 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.). Such a conclusion is particularly justified in that it is an accepted rule that our workmen’s compensation law should be liberally construed in favor of Texas employees. Shelton v. Standard Insurance Company, 389 S.W.2d 290 (Tex.1965); Southern Underwriters v. Hodges, 141 S.W.2d 707 (Tex.Civ.App.—Waco 1940, writ ref’d); Gulf Casualty Co. v. Garner, 48 S.W.2d 746 (Tex.Civ.App.—El Paso 1932, writ ref’d).

The insurance carrier’s contention that the evidence in the case did not support a finding of any total incapacity is overruled.

It is an established rule that a worker may be “totally and permanently disabled” within the meaning of the workmen’s compensation act while he is earning money. This is just one among many facts that the jury can properly consider in its deliberations. Traders & General Ins. Co. v. Collins, 179 S.W.2d 525 (Tex.Civ.App.—Galveston 1944, writ ref’d w. o. m.).

The insurance carrier is particularly concerned about the fact that this worker continued to put in a lot of overtime hours after his accident. However, the carrier has ignored the wage level of the worker at the time of his injury, which was $2.14 per hour. The injured worker testified that he was driven to work by necessity: He was paying off a loan on his car, he was paying a mortgage on his house, and he provided the sole support for his wife and fourteen year old son. The carrier also ignores the fact that it was not paying any weekly compensation benefits to this worker and that they (the carrier) refused to pay any of the worker’s medical bills after January of 1976. Because of these facts and his low wage scale, we can understand that this injured worker was driven to work a substantial number of overtime hours both before and after the accident because of necessity. We would be more persuaded by the carrier’s argument as to overtime work, if this injured worker at the time of injury had a very high wage rate and then continued to work substantial overtime after the injury, in that we might not be able to say under those circumstances that the worker was performing overtime work because of necessity. This worker was driven by economic necessity to work a substantial number of overtime hours both before and after his injury.

In Trinity Universal Insurance Company v. Scott, 342 S.W.2d 348 (Tex.Civ.App.—Port Worth 1961, writ ref’d n. r. e.), Chief Justice Massey, speaking for this court, wrote:

“Where there is prima facie proof in the record which supports the judgment of a trial court for compensation by reason of total and permanent incapacity, the judgment will not be reversed merely because there is evidence in the same record which establishes that the disabled employee is in fact working and earning money. This is true regardless of the amount of money being earned. . . ” Id. at 349.

As Dr. David H. Steiner (the orthopedic surgeon selected by the insurance carrier) said: “Some people work with a lot of disability and suffering.” We find that we must agree with Dr. Steiner, especially when a man is the sole support of his family and is driven to work by economic necessity, even though he is injured and in pain.

The insurance carrier is also concerned about the fact that the injured worker (three and one-half years after his accident) changed jobs by getting another job at a higher rate of pay. Of course, this was relevant information for consideration by the jury in its deliberations. The carrier, however, ignores the fact that much of the period between the time of the injury and the time of trial was a period of inflation (including double digit inflation at times), and once again, the carrier ignores the fact that this worker was working at a fairly low wage rate prior to changing jobs.

Having thoroughly considered the evidence in the record, we overrule the insurance carrier’s third point of error.

This worker testified that he had trouble rotating his head and that his back and shoulder problems prevented him from driving rig-up trucks and winch equipment. If he tries to do any lifting, his neck and shoulder will go into a spasm. In his current employment, he can’t drive as far as he could six months before without experiencing pain. Further, he experiences numbness in his right arm.

The evidence in this case shows that this worker was an admirable employee. He had worked for a total of seventeen years for the employer he was working for at the time of his injury. He continued in that employment for three and one-half years until he took another job. After his injury, he had not been able to perform the various tasks for his employer that he could perform before the accident. It appears that this admirable employee worked as hard as he could for his employer. Even though he was injured and despite the pain, he tried to do all the work that he could. He worked in order to provide the necessities of life for his family. He worked rather than allow himself and his family to become public charges.

We have carefully reviewed all the evidence in the record. We overrule the insurance carrier’s second point of error; we hold that the jury’s finding that this man was totally and permanently incapacitated (within the meaning of the workmen’s compensation act) is not against the great weight and preponderance of the evidence. We conclude that the evidence shows that this man cannot perform the usual tasks of a workman within the meaning of the workmen’s compensation act.

Appellee has asked that we assess an additional 10% damages against the insurance carrier for having taken a frivolous appeal only for the purpose of delay. See Texas Emp. Ins. Ass’n v. Thornton, 556 S.W.2d 393 (Tex.Civ.App.—Fort Worth 1977, no writ) for a discussion of the potential traps for appellees who make such a request. Although we see no merit in the points of error raised by the insurance carrier in this case, we are unable to conclude that this appeal was a frivolous appeal taken only for delay purposes. An appeal is not a frivolous appeal just because the appellate court does not agree with any of the appellant’s positions. Accordingly, appel-lee’s point of error asking for an additional ten percent as damages for a frivolous appeal is overruled.

The judgment of the trial court is affirmed.

MASSEY, C. J., dissents.

MASSEY, Justice,

dissenting.

Had the claimant in this case continued to work for the company which was his employer at time of his injury, I probably would agree with the majority. However, by the tests appropriate to the determination of whether a jury finding of total incapacity is against the great weight and preponderance of the evidence in this case, a case where the claimant was able to and did secure employment by another, I have concluded that such finding was thus erroneous.

Of his own volition claimant changed jobs. In May of 1976 he went to work for a different employer. He was able to both secure and keep the new employment. Services performed differed only in degree of effort; both involved the performance of labor.

I quote from Texas Employers Insurance Association v. Smith, 374 S.W.2d 287, 294 (Tex.Civ.App.—Beaumont, 1963, no writ hist.), viz.:

“Defendant presents an able argument in support of its position, and relies heavily upon Texas Employers Ins. Ass’n v. Moran, Tex.Civ.App., 261 S.W.2d 855, and Texas Employers Ins. Ass’n v. Vineyard, Tex.Civ.App., 316 S.W.2d 156. In each of these cases, the findings of total and permanent disability were found by the Court of Civil Appeals to be against the great weight and preponderance of the evidence. Also, in each of these cases, the plaintiffs had been able to obtain as well as retain employment. In the present case at bar, the plaintiff had stayed on the job with the same employer, and therefore had not passed a pre-employment examination, and being on the same job, had been able to get those following him on the next shift to perform some of the tasks required of him which he testified he could not do. The testimony of Dr. John Albert Brown that he would not pass the plaintiff for employment, together with the other testimony, raised an issue for the jury to determine, as to whether the plaintiff was physically able to obtain employment.” (Emphasis ours.)

Indemnity Insurance Co. of North America v. Cady, 356 S.W.2d 323 (Tex.Civ.App.—San Antonio, 1962, no writ hist.) was a case wherein the court, by an opinion of Associate Justice Pope, held that by appropriate tests a judgment for total and permanent disability based upon the jury finding of total incapacity should not be upheld on appeal because, among other things, he was able to secure employment from several employers other than that by whom he had been employed when he was injured after the date on which he was injured (apparently the date on which the jury found his period of total incapacity to have begun.) In that case it was stated that an additional reason for reversal lay in the claimant’s work record following his injury, one indicative that it would probably not have been the work record following injury of one entitled to permanent total disability benefits. In the case presently under test we have the same kind of work record. The record shows no change in the hours claimant worked after as compared with those he had worked before the injury. Both before and following the supposed period of total incapacity the claimant put in a great deal of “overtime”.

Yfhile I am aware of the rule that one may be totally and permanently incapacitated although he works and receives wages, nevertheless the proof in its entirety can be so overwhelmingly against the finding that it is the court’s duty to order a new trial. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). To pirate the words of Judge Pope in Cady, supra : While I do not say, as a matter of law, that the claimant in the case before us was not totally and permanently disabled; I do say that, as a matter of fact from all this record, he was not.

After claimant sustained his injury August 2, 1972 (date which the jury found to have been the beginning date of his permanent total incapacity) claimant lost no time from his usual work. While he was merely “carried” the remainder of that particular day he appeared the next working day thereafter and lost no time and no credit for having worked. His condition resultant from the injury gradually worsened; indeed, from the evidence adduced on trial it is probable that claimant ultimately will become totally incapacitated. However, it was the finding of the jury that a period of permanent total incapacity began August 12, 1972. Continually, after August 12, 1972, the claimant continued to work regularly at labor, though he was in pain. The evidence was that he was “carried” by his fellow employees from day to day while he refrained from performing the strenuous duties to which he was accustomed. Claimant admitted the performance of light duties.

There was not any interruption because of injury or effects therefrom and claimant continued to perform some labor. May of 1976 — nearly four years after he was injured — claimant voluntarily quit his employment upon obtaining a job requiring labor-type services with a new employer at an increased salary. Although I deem the fact of increase in remuneration of minor importance claimant’s new employment did result in his earning nearly half-again as much as was being earned at the time he quit working for his former employer.

As already noticed, this new employment beginning May of 1976 persisted for approximately one year and to time of the trial from which there was appeal. For his new employer claimant’s work record continued to be exceptional. Not only did he work the usual number of hours of one in his field of endeavor but he habitually worked many hours “overtime”, even up to trial.

In the above there is demonstration that (during the time the jury considered him totally incapacitated, and, more specifically, in May of 1976) claimant has actually been able to “get and keep employment”. Even with consideration given all the other facts and circumstances placed in evidence and tending to support the jury’s finding that the claimant was totally incapacitated I am of the opinion that the finding was so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous.

I would reverse the judgment and remand the case.


source: Caselaw Access Project

author: DODSON, Justice.

license: Public Domain

text:
    BANKERS COMMERCIAL LIFE INSURANCE COMPANY, Appellant, v. Evelyn MERRELL, Appellee.
    No. 8867.
    Court of Civil Appeals of Texas, Amarillo.
    March 13, 1978.
    Rehearing Denied April 10, 1978.

      Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant.
    La Font, Tunnell, Formby, La Font & Hamilton, Mark W. Laney, Plainview, for appellee.
   DODSON, Justice.

This is an action on an insurance policy. Evelyn Merrell, plaintiff-appellee, sued Bankers Commercial Life Insurance Company, defendant-appellant, for proceeds alleged due under an accidental death supplement to a medical insurance policy.

Mrs. Merrell’s husband, Robert Merrell, the insured, was killed when his pickup collided with a train on April 6, 1976. The accidental death supplement provided for payment of $1,000 if the insured died an “ordinary accidental death” and $2,000 if death resulted from bodily injuries sustained while riding in, operating or driving a “private passenger automobile.” In the supplement, the term “private passenger automobile” was defined to exclude various vehicles, including “any . . truck” from the provision’s coverage. The insurance company paid Mrs. Merrell $1,000 under the “ordinary accidental death” provision, but refused to pay an additional $1,000, asserting that Mr. Merrell was not killed in a private passenger automobile as defined by the supplement.

After a non-jury trial, the court entered judgment for Mrs. Merrell for the additional $1,000 plus attorney’s fees and a statutory penalty. From this judgment, the Insurance Company appeals. We reverse and render.

It is undisputed that Mr. Merrell died as a result of injuries sustained by him when his pickup collided with the train and that Mrs. Merrell, his beneficiary under the insurance policy, is entitled to recover an additional $1,000 if his pickup was not excluded by the definition of “private passenger automobile” in the supplement.

In part, the Insurance Company contends that the judgment should be reversed and rendered in its favor because the pickup is excluded as a matter of law by the definition of “private passenger automobile.” However, Mrs. Merrell says the question is one of fact. She maintains that the policy should be strictly construed against the insurance company because the definition does not specifically exclude a “pickup.” Thus she contends that the judgment should be affirmed because the definition is ambiguous and doubtful in its meaning, rendering it susceptible to more than one reasonable construction. We do not agree with Mrs. Merrell’s contentions.

The accidental death supplement states:

“Private passenger automobile” shall not include any motor bus, stage, taxicab, jitney, ambulance, truck, tractor, delivery ear, motorcycle (with or without side car), nor any vehicle in the service of Police or Fire Department or Salvage Corps, or in racing or in testing.

By common and accepted definitions the word “pickup” when used as descriptive of a motor vehicle means “a pickup truck.” A “pickup truck” is a “small, light truck with an open back, used for light hauling.” A “truck” is “a motor vehicle designed primarily for the carrying of things rather than people, ranging in size from small vehicles used to carry tools, deliver parcels, etc., to large vehicles used to carry very heavy objects, commodities in bulk, etc.”

The undisputed and stipulated facts show that the vehicle in question was a pickup truck by type and design. Although Mr. Merrell used the pickup for both his farming business and his personal pleasure, we specifically determine that the pickup truck is excluded from coverage under the policy by classification of type and design rather than use.

When, as here, the language of the insurance contract is plain, clear, unambiguous, and without doubtful meaning, it must be enforced as made. Here, the insurance contract must be construed as other contracts. And the court must give “effect to the intention of the parties as expressed or apparent in the writing.” Republic National Life Insurance Company v. Spillars, 368 S.W.2d 92, 94 (Tex.1963) and Royal Indemnity Company v. Marshall, 388 S.W.2d 176 (Tex.1965). Also, under these authorities we conclude that the rule of strict construction of insurance contracts in favor of the insured has no application in this case.

Mrs. Merrell relies on Mutual Benefit Health and Accident Association v. Hudman, 385 S.W.2d 509 (Tex.Civ.App.—Austin 1964), rev’d on other grounds, 398 S.W.2d 110 (Tex.1965); Prudential Insurance Company of America v. Lucas, 456 S.W.2d 429 (Tex.Civ.App.—Austin 1970, writ ref’d n. r. e.); State Farm Mutual Automobile Insurance Company v. Durrett, 472 S.W.2d 214 (Tex.Civ.App.—Fort Worth 1971, no writ); Hartford Accident and Indemnity Corporation v. Lowery, 490 S.W.2d 935 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.). In each of these cases there was no language in the insurance policy which excluded “any . . . truck” from coverage. We do not consider these cases applicable or controlling in the case before us. Mrs. Mer-rell also contends that the coverage issue is a question of fact rather than a question of law. We do not agree. See Pennell v. United Ins. Co., 150 Tex. 541, 243 S.W.2d 572, 574 (1951).

In summary, appellant Bankers Commercial Life Insurance Company’s points of error one, two and three are sustained. The judgment of the trial court is reversed and judgment is here rendered that Evelyn Merrell take nothing in her action against Bankers Commercial Life Insurance Company in Cause No. 6195 in the 110th District Court of Floyd County, Texas.

      . The World Book Encyclopedia Dictionary, 1966, at pages 1468 and 2090, respectively.


author: MURRAY, Justice.

text:
    George L. HACHAR et al., Appellants, v. COUNTY OF WEBB, Texas, et al., Appellees.
    No. 15964.
    Court of Civil Appeals of Texas, San Antonio.
    March 15, 1978.
    Rehearing Denied April 5, 1978.

      Lawrence A. Mann, Mann, Cronfel, Dickinson & Saldana, Nat B. King, Laredo, for appellants.
    Harvey L. Hardy, San Antonio, for appel-lees.
   MURRAY, Justice.

George L. Hachar and others, residents and taxpayers of Webb County, Texas, brought this suit for injunction against Webb County, Texas, to prevent the removal of the county courthouse of Webb County to a site outside the county seat of Webb County without an election, as required by Tex.Rev.Civ.Stat.Ann. art. 1596 (1962). This is an appeal from a judgment rendered by the court below granting a plea to the jurisdiction which had been filed by the defendants, dismissing this suit at plaintiffs’ cost.

The only issue before this Court is whether the trial court committed error by granting defendants’ plea to the jurisdiction. Jurisdiction, at a hearing on the plea to the jurisdiction, is properly determined solely by the allegations in the plaintiffs’ pleading, and these allegations are taken as true. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466 (1949).

Plaintiffs, in their petition, have alleged that they are taxpayers of Webb County and that the Commissioners Court of Webb County has purchased land outside of the county seat for the purpose of constructing a new county courthouse and, by resolution, has decided to build the county courthouse on this land. Plaintiffs further allege that such act on the part of the Commissioners Court is illegal in that it is in violation of Tex.Rev.Civ.Stat.Ann. art. 1603. (1962), which requires that the courthouse be located at the county seat. As this is an appeal from an order sustaining the defendants’ plea to the jurisdiction, we must assume that the above facts are true.

We have examined defendants’ pleadings and it appears that they base their plea to the jurisdiction on the ground that plaintiffs’ petition shows on its face that it is an attempt by plaintiffs to contest the legal right of Commissioners Court to provide for the location and construction of a new courthouse for Webb County. We agree with defendants that plaintiffs have no standing to bring suit for injunction to enjoin the Commissioners Court from doing an act that they have a legal right to do. However, it is the case alleged, and not such case as the evidence may show to be actually existent upon which the question of jurisdiction arises in this suit. Jones v. Maples, 184 S.W.2d 844 (Tex.Civ.App.— Eastland 1944, writ ref’d).

The cases cited by defendants are not in point in that they all involve an attempt to enjoin a local legislative body from performing a legal act.

Worsham v. Richards, 46 Tex. 441 (Tex.1877) was a suit by a local taxpayer to enjoin the county from changing the county seat by lawful means. We agree with the Supreme Court, who said, at 447:

But upon this particular question of the removal of the county seat, the decisions of this court have been numerous and uniform, from an early period to the present, that no such vested right exists as will authorize this proceeding in court to redress it. Following those decisions on this ground, we must affirm the judgment of the District Court dismissing the petition of plaintiffs.

The present suit is not a suit to enjoin the Commissioners Court from removing the county seat from one location to another within Webb County, but is a suit to enjoin the Commissioners Court from spending public funds to build the courthouse outside of the county seat in violation of law. We hold that a taxpayer may bring an action to restrain the illegal expenditure of tax money by the Commissioners Court. His interest in the subject matter is sufficient to support the action. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.1966); Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324 (1956). In Deacon v. City of Euless, Chief Justice Calvert put his finger on the controlling point as follows:

Since the cause must be remanded to the trial court, it seems imperative for the guidance of the trial court that we consider the holding of the Court of Civil Appeals that the plaintiffs have no right to maintain and prosecute their suit. We disagree with that Court’s holding. If the territory sought to be annexed exceeds the limits prescribed by the Legislature, the ordinances are in direct violation of Art. 970a and are declared null and void by the very terms of that statute. A taxpayer may maintain a suit challenging the validity of ordinances which are utterly void because not authorized by law or color of law.

The location of the courthouse outside of the county seat is not authorized by law or color of law.

The judgment of the trial court is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.


author: COULSON, Justice.

text:
    John HOLLOWAY et al., Appellants, v. HAR-CON ENGINEERING COMPANY, INC., et al., Appellees.
    No. 1738.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 15, 1978.
    Rehearing Denied April 12, 1978.

      John H. Holloway, Houston, for appellants.
    Daniel C. Pappas, Leo A. Kissner & Associates, Darrel E. Reed, Jr., Ralph S. Carri-gan, Baker & Botts, Daniel 0. Goforth, Sewell, Junell & Riggs, James S. Kelly, Offices of Richard G. Sedgeley, Houston, Knox D. Nunnally, Houston, D. Craig Olivier, Vinson & Elkins, Ervin A. Apffel, Jr., Rex N. Leach, McLeod, Alexander, Powel & Apffel, Galveston, Robert G. Taylor, II, Susan E. Crowley, Boswell, O’Toole, Davis & Pickering, Houston, for appellees.
   COULSON, Justice.

Plaintiffs, John H. and Nancy Holloway, appeal from a take-nothing judgment entered in their suit against multiple defendants for recovery of losses sustained as a result of a fire which severely damaged their home. We affirm.

In their petition the Holloways alleged that a hot water heater manufactured by Day & Night Manufacturing Company and installed by Har-Con Engineering Company, Inc. was the cause of the fire, arguing that the heater was defective and that safety devices on it had been negligently installed. Alternatively, the Holloways alleged that the fire was caused by a furnace manufactured by Lennox Industries, Inc. and installed by Gulf Coast Air Conditioning Company, Inc. At the conclusion of the plaintiffs’ case in chief the trial court instructed verdicts for Lennox and Gulf Coast, and at a later time instructed a verdict for Robertshaw Controls Company, manufacturer of a temperature control valve for the water heater, on a cross-action filed against it by Day & Night.

The case was submitted to the jury on issues covering the plaintiffs’ theories of breach of warranty and negligence, together with issues on damages. Although the jury returned several answers which were favorable to the Holloways, it refused to make findings which would justify the imposition of any liability. We have reviewed the entire record in this case and find that all of the jury’s findings are adequately supported by the evidence. Such conclusion renders harmless a number of possible errors. The jury’s refusal to make any favorable fact findings for the Holloways on the issues dealing with the Robertshaw control valve and the installation of the vent pipe and roof jack, and its refusal to find that the negligent installation of the temperature-relief valve was the proximate cause of the fire, render academic any discussion of the court’s action with respect to expert testimony or requested special issues which assumed contrary findings or which only became significant if contrary findings were made.

In several points of error the Hollo-ways complain that the trial court erred in excluding the testimony of their expert witness, Rufus Market, given during a bill of exception and relating to the cause of the fire. We find that any error which may have occurred was harmless since the evidence excluded was merely cumulative of testimony otherwise given by either Market or Ralph Tafelmeyer, another of the plaintiffs’ experts, and received into evidence; there is no reason to believe that repetition of the evidence would have caused the jury to be better informed on this matter or to have changed their answer to any special issue.

Finally, we are confronted with the propriety of the instructed verdicts granted Lennox and Gulf Coast. The Hol-loways candidly admitted to both the trial court and this court that such verdicts were proper in light of the evidence they produced, but they urge that such motions were ill-timed since the defendants were jointly and severally liable and evidence against Lennox and Gulf Coast might be brought out (and, it is argued, was brought out) during the presentation of the other defendants’ cases. Although we are aware of no Texas authority directly in point, this question has been addressed by the courts in a number of other states, albeit with differing responses. See generally Annot., 48 A.L.R.2d 535 (1956). After a careful consideration of the issues involved we are persuaded that the rule set out by the Supreme Court of Missouri in Gibson v. Newhouse, 402 S.W.2d 324 (1966) is the correct one. That court held that appellate review of directed verdicts is limited to a consideration of the evidence adduced at the time the motion was granted, and does not involve review of all the evidence in the case. Cf. Pope v. Clary, 161 S.W.2d 828, 832 (Tex.Civ.App.— Fort Worth 1942, writ ref’d w. o. m.) (subsequent jury findings cannot be used to attack an instructed verdict). In light of this rule, we find that the trial court did not err in directing a verdict for Lennox and Gulf Coast.

All points of error have been duly considered and are overruled.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice..

text:
    Phillip MULLER et ux., Appellants, v. NELSON, SHERROD & CARTER et al., Appellees.
    No. 17944.
    Court of Civil Appeals of Texas, Fort Worth.
    March 16, 1978.

      McGown, Godfrey, Decker, McMackin, Shipman & McClane and Robert G. West, Fort Worth, for appellants.
    Nelson, Sherrod & Carter and Eugene Sherrod, Wichita Falls, for appellees.
   OPINION

MASSEY, Chief Justice..

The appellees, individuals and partners of a law firm, and hereinafter referred to merely as Sherrod, sued the appellants, husband and wife, hereinafter referred to in the singular as Phillip, to recover attorney’s fees. From the award of attorney’s fees to Sherrod, Muller appealed.

Judgment is affirmed.

The judgment in favor of Sherrod was by the trial court, sitting without a jury, predicated upon right of recovery under the equitable principle of quantum meruit. We have no doubt of Sherrod’s alternative right to recover under that theory upon some correct measure of “value” of the attorney’s services, though we hold — as the trial court did not — that Sherrod was entitled to recover on the contract for his services.

The completion of the work of Sherrod upon the obligation of return performance by Phillip was in behalf of Phillip, his father Edwin Muller, and uncle Arnold Muller. By the findings and conclusions of the trial court the completion of Sherrod’s services was frustrated by Phillip through his settlement of the lawsuit filed by his cousin “Jack” Muller (son of a deceased uncle, Walter Muller). It was because of Phillip’s execution and delivery of a deed to “Jack’s” son John, transferring 70 acres of land out of the 140 acres in controversy by the suit, that there was a dismissal of “Jack’s” suit “without prejudice.”

It was after such lawsuit had been filed that Phillip engaged the services of attorney Sherrod to defend the same, and, in view of the settlement effected (unbeknownst to and without concurrence by Sherrod) there was nothing by way of performance thereafter remaining to be done by Sherrod under his contract with Phillip.

Sherrod accepted employment upon the representation of Phillip that he desired services to resist the lawsuit of “Jack” because of a promise he had made to Walter Muller, father of “Jack,” on his deathbed, that he would see to it that “Jack” should never have any part of the 140 acres. As is to be noticed the contract was conditional, one as applied to which no particular words were required to be construed in order to constitute a condition precedent or condition subsequent; and in the event there should arise a question on such a point the determination should be concluded by the intention of the parties as manifested by the circumstances of the particular case. Sulzbacher v. Wilkinson, 1 White & Willson, Texas Court of Appeals, Civil Cases, p. 555, § 994 (Commrs. of Appeals, 1881).

At time the contract of employment was made neither Sherrod nor Phillip thought that Phillip might be in any danger of losing more than a 70-acre undivided interest in the 140 acres (and the contingent fee contract dealt with only a further undivided one-half interest in and to the 70-acre undivided interest). It was for the conditional contingent fee out of the 70-acre interest that Sherrod contracted for representing Phillip and his father and uncle. (Occasion for presence of father Edwin and uncle Arnold need not be explained.)

The contract, in a letter prepared by Sherrod and signed with approval by Phillip, contained the following material language:

“ . . . Of the 70 acres of land so involved in dispute, our fee will be 50% of whatever part is successfully defended in your behalf. . . . If for any reason you should decide to compromise and settle with the Plaintiff for less than the 70 acres in dispute, our fee again would be one-half of whatever you received in settlement.
“ . . . Should we be unsuccessful in our defense, then there will be no charges for our legal services.”

By the evidence it was shown that Phillip had promised Walter Muller, on his deathbed, that at some later time he would deed “an undivided interest in some property” to John Muller, then and at time of the settlement of the lawsuit the minor son of “Jack.” Because of memory of such promise to Walter, and because of family unpleasantness, including the creation of such a hiatus in the Muller family relationships that Phillip’s mother did not feel free to attend her family church, that Phillip decided to hasten the time he would deed “an undivided interest in some property” to John if to do so would resolve all difficulties. Finding that to deed an undivided 70-acre interest in the 140-acre tract to John would enable the discharge of what Phillip deemed his moral obligation and would be by “Jack” deemed sufficient reason to dismiss the suit filed by him, Phillip did proceed to execute a deed to the undivided 70-acre interest to John. Upon his having done so “Jack” dismissed the lawsuit.

By necessary implication the parties had contracted that Phillip should have the right to settle the lawsuit. By express provision of contract that in event of settlement Sherrod would become entitled to “one-half of whatever you [Phillip] received in settlement,” the question is arisen upon the identity of the benefit Phillip received, and its value in money. Phillip contended that he received no benefit. By his pleading Phillip “stood on the contract” and insisted that any right of recovery by Sherrod should be by its terms and provisions, with any right of recovery by the theory of quantum meruit foreclosed.

In the Findings of Fact filed by the trial court appears the following:

“15. The disposition of the case between the Mullers themselves whereby Defendants Phillip and Carrol Muller conveyed a one-half interest in the 140 acres to Walter Muller’s grandson, John, and Wallace Muller entered a dismissal of his lawsuit ‘without prejudice’ but still without recovering any interest in the land by his suit, has resulted, substantially, in a successful defense by Plaintiffs under their contract.
“16. The consideration actually received by Defendants, however, is so intermingled with the discharge of their personal obligations to Walter Muller’s grandson in the dismissal agreement that it is impossible to say with certainty how much Defendants gained from the defense of the cause of action.
“17. The total legal services rendered by Plaintiffs under their employment by defendants was of the reasonable cash value of $10,500 as of December 16, 1975 when the services were terminated.”

In the Conclusion of Law Filed by the trial court appears the following:

“2. The conduct of Defendants in voluntarily taking over the negotiations for a disposition of the case, coupled with the acts of defendants in making a conveyance of a one-half interest in the land in litigation to their uncle’s grandson and securing a dismissal of the pending suit ‘without prejudice’ to the refiling of same, operated as a premature termination of Plaintiffs’ services and rendered the complete performance by Plaintiffs impossible.”

By other of its provisions the written contract of Sherrod and Phillip included an option for Phillip to repurchase from Sher-rod any interest in the subject property Sherrod might ultimately receive predicated upon an agreed valuation and price of $300.00 per acre. Thus, there was supplied a “value” as applied to each acre of the land by a mathematical computation in the event such be of any importance as we conclude it to be. By construction Phillip’s deed to John was of land having the value of $21,-000.00. To do this, or to do something of this nature, was a part of what Phillip considered his moral obligation. In substance, the effect of his deed to John constituted the performance of what Phillip ultimately intended in any event. Furthermore, he accomplished his intention to deny any recovery thereof to “Jack.”

Under the quantum meruit theory the court granted judgment for the identical amount to which Sherrod would have been entitled had there been a completed trial of the lawsuit, with judgment whereby Phillip should retain all his right, title, and interest to the land. This would be the maximum Sherrod could recover on the theory of quantum meruit. The rule appears to be: if the employee abandons his contract the employer shall be charged with only the reasonable worth, or the amount of benefit he has received upon the whole transaction, and in estimating the amount, the contract cannot be exceeded. Carroll v. Welch, 26 Tex. 147 (1861). Under the evidence and by the court’s finding this was the value of Sherrod’s services, and the record adequately supports the finding on value of the services. What the record does not show, and what the court found, however, was “it is impossible to say with certainty how much Defendants gained” as result of Sherrod’s having represented them. By construction the finding amounts to one whereby the court found that there was either no evidence by Phillip in showing the value — in advancing his purposes— received from Sherrod, or, if there was such evidence it was disbelieved by the court, sitting as the trier of fact.

It is upon the theory of unjust enrichment on which the liability on the quantum meruit count is founded. An aim to avoid unjust enrichment is observed and forms the basis of the implied obligation of a defendant to pay a plaintiff for the reasonable value of materials furnished or services rendered. 62 Tex.Jur.2d, p. 467, “Work, Labor, and Materials,” § 1, “In general.”

The question persists: What has Phillip gained? Under the hypothesis that he intended to deed some property to John in any event he would have lost nothing if it be proper to construe the legal situation as one whereby he did, in fact, discharge the very moral obligation which he stated he felt obliged to discharge when he deeded John the undivided interest in the 140-acre tract. With the discharge of the obligation Phillip was left in the legal position of having no outstanding obligation to discharge. Thus, he has lost nothing by his deed to John; while at the same time he has gained in that by discharging his moral obligation he obtained a victory over “Jack” in that the latter was thereby willing to and did dismiss the suit against him and his father and uncle. Thus, by construction which would result in accomplishment of right and justice in disposition of the case, we may hold, judicially, that by express contractual construction Phillip gained or preserved the full 70-acre interest, of which gain his obligation was to make compensation to Sherrod of a full 50% interest. Furthermore, other things besides material gain influence clients in the employment of professional services and their accomplishment has value. 1 Speiser, on Attorneys’ Fees, 323, “Determining Reasonable Value,” § 8:11, “Results and benefits obtained.” See also in some volume, p. 296 under § 8:2, “General rule,” the matters to be considered in determining value.

It is by what is called quantum me-ruit that equity seizes upon a transaction to deal with situations in which one person is accountable to another on the ground that otherwise he would unjustly benefit or the other person would unjustly suffer loss. A person who has been unjustly enriched at the expense of another is required to make restitution to the other; generally, however, where the benefit to the one person and loss to the other do not coincide the amount of recovery is usually limited to the amount by which there has been enrichment. However, a person who has been unjustly deprived of his property or its value or the value of his labor may be entitled to maintain an action for restitution against another although the other has not in fact been enriched thereby. Restatement of the Law, Restitution, Ch. 1, “Introductory Matters,” § 1, “Unjust Enrichment."

To be applied to the particular matter involved in this suit would be the rule from Restatement of the Law, Restitution, Ch. 8, “Actions for Restitution,” § 155, “Non-Tor-tious Recipient Not More At Fault Than Claimant.” The section, in part, deals with a circumstance where the value of the benefit to the recipient may not be the same as the value of what is given him, considering his purposes. At the very beginning of the section is the following:

“Where a person is entitled to restitution from another because the other, without tortious conduct, has received a benefit, the measure of recovery for the benefit thus received is the value of what was received, limited, if the recipient was not at fault or was no more at fault than the claimant, to its value in advancing the purposes of the recipient . . . (Emphasis supplied.)

In the instant case Sherrod discharged his burden of proof to the extent of proving the general value of legal services rendered by him as his performance due Phillip under the contract. He proved the fact of benefit to Phillip as the advancement of Phillip’s purposes, but nothing of the “value” of the benefit to Phillip. Of course the value of the benefit to Phillip was, under the circumstances, peculiarly within Phillip’s own knowledge and as such matter available of proof by him while not available of proof by Sherrod. Yet the burden of proof on the issue remained Sherrod’s. Here what is called the “burden of going forward with the evidence” became that of Phillip. Sher-rod had completed all thereon necessary to be received in his behalf in the proof of his prima facie case when he proved the rendition of his services and their value on the market (as constituting value received by Phillip).

The “value” of the benefit found to have been received by Phillip was not in excess of the amount of the maximum prescribed by the parties’ contract. Sherrod was by the legal theory of quantum meruit found to be entitled to an amount decreed by the court which exactly matched the amount mathematically calculable by the parties’ contract if treated as fully and successfully performed by him.

We take occasion, however, to state that in our opinion we are not bound to affirm the judgment as restricted to the consideration of the case on the theory of quantum meruit. It is the duty of an appeals court to affirm a judgment if there be any authorized theory upon which such might be done. 4 Tex.Jur.2d, p. 542, “Appeal & Error — Civil Cases,” § 885, “(Affirmance) — In general.” The factual findings of the trial court in a case tried before the court without a jury are binding upon the appellate court, but the conclusions of law by the trial court are not likewise binding and the appellate court is free to make its own legal conclusions. 4 Tex.Jur.2d, p. 279, “Appeal & Error — Civil Cases,” § 783, “Findings, conclusions, and judgment of trial court.”

From the contract of the parties it is obvious that settlement of the case by Phillip would effect a completion of the contract exactly as would have been the situation had there been a successful defense of “Jack’s” suit in court. We hold that the proof demonstrated the completion of the contract. By a finding of fact by the trial court the settlement resulted, substantially, in a successful defense. In other words, there was the constructive fact finding that there was a completed contract. A contract fully performed entitles both parties to that for which they had contracted. Hence Sherrod was entitled to that for which he had contracted upon a contractual theory, as for specific performance by Phillip of the obligatory return performance. On his entitlement all that we have earlier written upon the matter of a proper determination of “value” to Phillip in the advancement of his purposes has application. Also noticed is that the contract, treated as one accomplished, specified the “measure” by which the property, per acre, might be valued in the event the contract might be treated as fully performed. The calculable amount to which Sherrod would thereby be entitled was exactly the same figure as the one upon which the court rendered its judgment, though upon a theory other than that of completed contract. Carroll v. Welch, supra; 62 Tex.Jur.2d, p. 502, “Work, Labor and Materials,” § 25, “(Measure and amount of recovery) — Effect of express contract.”

Hence there was no error in the judgment, either viewed as one upon which there was entry according to the theory of completed contract or, alternatively, according to the theory of quantum meruit.

All points of error have been severally considered; they are overruled.

Judgment is affirmed.


author: RALEIGH BROWN, Justice.

text:
    Mary H. WILLIFORD, Appellant, v. Dr. Richard L. BANOWSKY, Appellee.
    No. 5119.
    Court of Civil Appeals of Texas, Eastland.
    March 16, 1978.
    Rehearing Denied April 6, 1978.

      William J. Fleniken, Jr., Law Offices of C. Coit Mock, Fort Worth, for appellant.
    William T. Hankinson, Thompson, Knight, Simmons & Bullion, Dallas, for ap-pellee.
   RALEIGH BROWN, Justice.

This is a dental malpractice case.

Mary Williford sued Dr. Richard L. Ba-nowsky for damages as a result of personal injuries allegedly incurred as a result of a cut received while obtaining dental treatment. The trial court instructed a verdict for Dr. Banowsky. From the take nothing judgment, Mrs. Williford appeals. We affirm.

In six points of error, Mrs. Williford urges the court erred in granting Dr. Ba-nowsky’s motion for instructed verdict because (1) expert medical testimony was not required to establish negligence and proximate causation under the facts of this case; (2) under the doctrine of res ipsa loquitur, a fact question was raised; (3) there was evidence of negligence and proximate cause; and there was evidence of appellee’s (4) failure to keep a proper lookout; (5) negligence in the use of mechanical instruments; and, (6) negligence because the injury occurred to a portion of appellant’s body other than that which appellee was hired to treat.

She contends, however, “the issue before this court is, in reality, a narrow and uncomplicated, though difficult one. The real issue involved here is whether expert medical testimony is essential to make out a prima facie case.”

Although Mrs. Williford argues very forcefully that the rules of ordinary negligence should apply to the case at bar, we disagree. As stated in Allison v. Blewett, 348 S.W.2d 182 (Tex.Civ.App.—Austin 1961, writ ref. n. r. e.):

“Regardless of the designation given to this suit it necessarily is a suit for damages for the act of a physician or surgeon regularly engaged in the practice of medicine. Such suits are usually referred to as suits for malpractice which has been defined as follows:
‘ “Malpractice”, also sometimes called “malapraxis” means bad or unskillful practice, resulting in injury to patient, and comprises all acts and omissions of physician or surgeon as such to a patient as such, which may make physician or surgeon either civilly or criminally liable.’ Bakewell v. Kahle, 125 Mont. 89, 232 P.2d 127, 129.

It has also been said that

‘A “malpractice” action presents a claim of a hybrid nature, in that in one aspect it is based upon negligence and in another upon breach of contract, and the term “malpractice” may be applied to a single act or to a course of treatment.’ Giambozi v. Peters, 127 Conn. 380, 16 A.2d 833, 835.”

Dr. Banowsky at the time of the alleged injury was engaged in the practice of dentistry, thus the evidentiary rules applicable to medical malpractice cases should apply.

This being an appeal from an instructed verdict, we must accept as true the evidence supporting plaintiff’s allegations. All conflicts and inconsistencies must be resolved in favor of plaintiff, and we must draw all inferences therefrom most favorable to plaintiff’s alleged cause of action. Constant v. Howe, 436 S.W.2d 115 (Tex.1968); and Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965).

It is undisputed that while preparing Mrs. Williford’s second bicuspid for a crown, Dr. Banowsky made a laceration one-half to three-fourths of an inch long in her gum tissue. Other than the testimony of Dr. Banowsky, an adverse witness, and by deposition, Dr. Oscar Thompson, the oral surgeon who sutured Mrs. Williford’s laceration, Mrs. Williford presented no expert witness, and neither dentist gave favorable opinion testimony for her. She argues that no expert testimony was necessary under the facts of this case concerning negligence and proximate cause because of the doctrine of res ipsa loquitur and the negligence of Dr. Banowsky was such as to be within the common knowledge of laymen. Dr. Ba-nowsky contends that the absence of such testimony is fatal to Mrs. Williford’s case because without same, Mrs. Williford failed to present any competent evidence that he committed an act of negligence or that any act of negligence was a proximate cause of her alleged injuries.

By deposition and personally at trial, Dr. Banowsky testified that to prepare a tooth for a crown it was necessary for the enamel to be removed. This is accomplished by grinding the tooth down with a high-speed-rotary instrument. In order to prevent tooth decay at the point where the crown and tooth meet, it is necessary to remove the enamel below the gum line from two to three millimeters. To go below the gum line, a long tapered “burr”, which would cause less bleeding than the larger instrument used in removing the enamel for the rest of the tooth, was used.

As Dr. Banowsky was removing enamel below the gum line, the burr became entangled in fibrous material which was either a frenum attachment or a mental nerve. He testified that the entangling fibrous material was unexpectedly high and out of place saying:

“Q And can you tell me your explanation for the reason of the laceration?
A I can say that I feel that the frenum attachment, or the nerve, the middle nerve fibers in this area, were abnormally high and as I was preparing this finishing line below the gum level on the bicuspid, the — these fibers were encountered at a place where they would not normally be expected to be seen, or where I had not experienced them before.
Q Took you by surprise, in other words?
A Yes, sir.
Q That’s not something you had encountered before?
A Never had encountered that.”

He also testified:

“Q In other words, the mental nerve is not something like the frenum attachment, that you can look at it and tell whether it’s abnormally high or not?
A I would say that’s correct. Not without dissecting out the area.
Q Can’t see that like you can see this— or did see this frenum?
A Frenum attachment.
Q Frenum attachment?
A You cannot always tell how far the fibers of the frenum extend up the tissue or into the tissue either. You can only see where it’s attached. Without dissection, it would be difficult to tell how widespread the attachment is.
Q Now, the frenum attachment you referred to in Mary Williford, that was severed?
A The exact injury to Mary Williford was not caused particularly by a severing of the frenum. It involved the ligamentous frenum attachment becoming involved with the rotary cutting instrument to such an extent that more of a tearing injury took place, which explains the extent of the — of the injury. The extent of it being cut by the rotary instrument, the fibers became wound around the rotary instrument and it pulled and tore before the instrument could be stopped.
Q So, if I understand you correctly, you’re not telling me that the fre-num attachment was severed? That was just the area of the cut?
A Yes.
Q Area of the laceration?
A It was in the area.
Q And the drill became entangled in this frenum attachment?
A In the ligamentous strands of the endings of this frenum attachment.
Q What caused that?
A In my judgment, it was because this attachment extended up higher than one would normally look for.”

There is no evidence Dr. Banowsky either dropped the drill or slipped in any fashion in handling same.

The Texas Supreme Court in considering malpractice cases has followed traditional principles enunciated in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949):

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries . .

The court in Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.— Houston (1st Dist.) 1967, writ ref. n. r. e.) said:

“The general rule applicable to cases of medical malpractice is well settled in Texas. The law presumes that the physician has done his work properly. The plaintiff can recover only when it can be affirmatively shown that the diagnosis or treatment was not an error in judgment but a matter of negligence, and that such negligence was the proximate cause of the damages claimed by the plaintiff. Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso 1964, n. w. h.). Ordinarily both negligence and proximate cause must be proven by medical testimony. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949).”

Some courts of civil appeals in Texas have suggested exceptions to the general principle. In Harle, the court continued:

“An exception to this rule has been recognized where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, as where the negligence alleged is in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. In such cases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains. Bell v. Umstattd, 401 S.W.2d 306 (Tex.Civ.App., Austin 1966, writ dism.); Henderson v. Mason, supra; Dobbins v. Gardner, 377 S.W.2d 665 (Tex.Civ.App., Houston 1964, writ ref. n. r. e.); Gorsalitz v. Harris, 360 S.W.2d 574 (Tex.Civ.App., Houston 1962, n. w. h.); Edwards v. West Texas Hospital, 89 S.W.2d 801 (Tex.Civ.App., Amarillo 1935, writ dism.); Hess v. Millsap, 72 S.W.2d 923 (Tex.Civ.App., Austin 1934); Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App., Texarkana 1930, writ ref.).”

It is generally recognized by Texas courts that the doctrine of res ipsa loqui-tur is inapplicable to medical malpractice cases. Rayner v. John Buist Chester Hospital, 526 S.W.2d 637 (Tex.Civ.App.—Waco 1975, writ ref. n. r. e.); Harle v. Krchnak, supra; Shockley v. Payne, 348 S.W.2d 775 (Tex.Civ.App.—Amarillo 1961, writ ref. n. r. e.).

As stated in Rayner, supra, however:

“An exception to this rule is recognized where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, as where the negligence alleged is in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. In such cases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains. Harle v. Krchnak, supra; Shockley v. Payne, supra; Goodnight v. Phillips, Tex.Civ.App., NRE, 418 S.W.2d 862; Louis v. Parchman, Tex.Civ.App., NRE, 493 S.W.2d 310; Stinnett v. Price, Tex. Civ.App., NRE, 446 S.W.2d 893.”

Therefore, Texas courts in medical malpractice cases have required negligence and proximate cause proven by medical testimony and have held the doctrine of res ipsa-loquitur inapplicable except where the alleged malpractice and injuries are plainly within the common knowledge of laymen. Such cases include negligence in the use of mechanical instruments, operating on the wrong part of the body, or leaving surgical equipment inside the body. Irick v. Andrew, 545 S.W.2d 557 (Tex.Civ.App.—Houston (14th Dist.) 1976, writ ref. n. r. e.); Hunter v. Robison, 488 S.W.2d 555 (Tex.Civ.App.—Dallas 1972, writ ref. n. r. e.); Harle v. Krchnak, supra.

In the case at bar, Mrs. Williford has alleged she has “suffered severe pain and numbness in her lower lip and her jaw; she has sustained a loss of feeling and sensation in her jaw; she has sustained a loss and/or diminishment of her ability to speak and express herself, causing her great pain and suffering and mental anguish in the past and will in all probability continue to sustain pain and suffering and mental anguish far into the future, if not for the remainder of her natural life, all to the damage of Plaintiff.”

None of the recognized exceptions to the requirement of the necessity of medical testimony are applicable in the case at bar. Mrs. Williford makes no claim that any surgical equipment was left inside her body and the evidence conclusively establishes that Dr. Banowsky was not operating on the wrong part of the body. The proper use of a high-speed rotary instrument in a dental treatment is no more a matter plainly within the common knowledge of laymen than the use of an X-ray machine. See Irick v. Andrew, supra.

Without qualified medical testimony, we hold there is no evidence of probative force showing that the treatment by Dr. Banow-sky was negligent and the proximate cause of Mrs. Williford’s injuries.

We have considered and we overrule all points of error. The judgment is affirmed.


author: PER CURIAM.

text:
    Noel E. SULLIVAN, Movant, v. KENTUCKY STATE BOARD OF BAR EXAMINERS, CHARACTER AND FITNESS COMMITTEE, Respondent.
    Supreme Court of Kentucky.
    March 14, 1978.
    Noel E. Sullivan, pro se.
    Thomas P. Bell, Lexington, for appellee.
   PER CURIAM.

Movant was admitted to the Ohio Bar in 1962 and actively engaged in the practice of law in that state until joining the faculty of the Northern Kentucky University in June, 1972. Since that time he has been actively teaching in the Chase College of Law.

On December 1,1977, movant made application for permission to practice law in the Commonwealth of Kentucky without taking an examination (SCR 2.110). On December 29,1977, his application was denied because his teaching did not take place in the state where he was licensed to practice law (Ohio).

The active engagement in the teaching of law at Northern Kentucky University for five consecutive years immediately prior to the application to be admitted to the bar on motion satisfies the requirements of SCR 2.110, to engage in the active practice of law for five of the seven years next preceding his application to be admitted to the bar in this state without examination. This is apparent in view of the provision in SCR 2.110 that active engagement in the teaching of law shall be considered active engagement in the practice of law.

The interpretation of the rule by the Character and Fitness Committee that required the period of active practice where admitted to so practice does not take into account that portion of SCR 2.110 dealing with the teaching of law.

Full court sitting.

All concur.


text:
    William H. McCLASKEY, Petitioner, v. The CHARACTER AND FITNESS COMMITTEE OF the KENTUCKY STATE BOARD OF BAR EXAMINERS, Respondent.
    Supreme Court of Kentucky.
    March 14, 1978.

      William H. McClaskey, pro se.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for respondent.
   PER CURIAM.

The petitioner, an attorney, licensed to practice in the states of Illinois and Indiana, desires to be admitted to the Kentucky Bar pursuant to the applicable rules of the Supreme Court of Kentucky. The parties agree that Rules 2.110 and 2.070, respectively entitled “Admission without Examination” and “Legal Education,” are directly at issue in this matter. A brief discussion of the chronology of the uncontroverted factual events which precipitated this matter is in order.

In September, 1947, the petitioner enrolled in the John Marshall law school, located in Chicago, Illinois. In 1949, the law school filed the necessary documents and application form requesting formal American Bar Association approval. The following year, 1950, the petitioner graduated from that institution with the degree of Juris Doctor, and on November 29, 1950, was admitted to the Illinois Bar as a result of his successful completion of the Illinois Bar examination. In 1951, the John Marshall law school was formally approved for the first time by the American Bar Association.

In 1957, the petitioner requested admission to the Indiana Bar pursuant to foreign license and in lieu of examination. It is admitted by the petitioner, and the exhibits clearly indicate that the Indiana State Board of Bar Examiners questioned his qualifications in light of the fact that the John Marshall law school was not approved by the American Bar Association until the year subsequent to the petitioner’s graduation. This matter was resolved in the petitioner’s favor, and on October 29, 1958, he was admitted to the Indiana Bar on foreign license by order of the Chief Justice of the Indiana Supreme Court.

On or about June 16, 1977, the petitioner filed with the clerk of this court an application for admission by motion to practice law in Kentucky. The motion was referred to The Character and Fitness Committee of the Kentucky State Board of Bar Examiners. There it was determined that the application for admission did not satisfy the requirements of Supreme Court Rule 2.110 because “ * * * you were admitted to the bar examination and to the Illinois Bar at a time when you would not have been admitted to the bar examination in the State of Kentucky.” This factual determination was based solely on the fact that the John Marshall law school was not approved until one year subsequent to the petitioner’s graduation.

This proceeding was instituted as a result of the petitioner’s right to a review of The Character and Fitness Committee’s decision as provided for by SCR 2.060, entitled “Committee’s Decision as to Eligibility.”

The sole issue presented is whether the John Marshall law school was approved “in law” by the American Bar Association when the petitioner herein was graduated therefrom on June 24, 1950, with a Juris Doctor degree within the meaning of SCR 2.110.

It appears that at the time the petitioner was admitted to the Indiana Bar, Rule 3-13(b) of the Indiana Supreme Court required an applicant to be a graduate of a law school on the “approved list of the Council of Legal Education,” an arm of the American Bar Association. Since the Indiana State Board of Law Examiners determined that this applicant satisfied all requirements for admission to the Indiana Bar under its rules for admission on the basis of foreign license, this issue has been fully determined and the finding may be accepted by this court as conclusive.

Both the petitioner and the respondent cite Kentucky Bar Association v. Signer, Ky., 533 S.W.2d 534 (1976), in support of their respective contentions. The petitioner calls our attention to so much of the Signer opinion as says:

“ * * * the facts adjudicated in the sister state, on which its disciplinary judgment was based, should be treated as conclusively established, eliminating any necessity of retrying the same factual issues, * *

On the other hand, the respondent cites the following from Signer:

“The action of the Supreme Court of Ohio in barring Signer from the practice of law in Ohio did not purport to affect his right to practice law in any other state, and could not validly have done so anyway. The Full Faith and Credit Clause cannot possibly be twisted into giving to the Ohio action an effect it did not purport to have. * * * ”

Although Signer is related to a disciplinary proceeding and the matter presently before this court is related to being admitted to the practice of law in Kentucky, it is a difference without a distinction as far as the applicable law is concerned. To paraphrase the facts in the present proceeding in light of Signer is to say that the facts adjudicated in Indiana, on which its judgment to admit the petitioner is based, should be treated as conclusively established, eliminating any necessity of retrying the same factual issues in Kentucky. Accordingly, we accept the findings of the Indiana Supreme Court that petitioner graduated from an American Bar Association approved law school. When we accept the Indiana determination, we find that petitioner has complied with all of the requirements for admission to the Kentucky Bar under the rules for admission on the basis of foreign license.

These proceedings are remanded to The Character and Fitness Committee of the Kentucky State Board of Bar Examiners, from whence it came, for proceedings consistent with this opinion.

All concur.

      . Rule 3-13, in effect in Indiana in 1957, also required applicants to the Bar to be graduated from American Bar Association approved law schools.


author: REED, Justice.

text:
    Pauline HOOK, Movant, v. Albert Warren HOOK, Respondent.
    Supreme Court of Kentucky.
    March 14, 1978.
    David A. Lambertus, Louisville, for mov-ant.
    August A. Klapheke, Louisville, for respondent.
   REED, Justice.

This is a child custody case involving an “interstate child.” The mother was awarded permanent custody in a divorce judgment in a foreign state. The father later moved to Louisville, Kentucky. The mother brought the child to the father. The father, while in possession of the child, brought an action against the mother in the Jefferson Circuit Court to modify the foreign custody order. The mother questioned the jurisdiction of the court. The circuit court held a hearing and on the pleadings, affidavits, and statements of counsel entered an order that it had jurisdiction to determine the issue of modification. This order confined itself to the question of jurisdiction but contained a recital that it was “final and appealable and that there was no just reason for delay.” CR 54.02. The mother filed a notice of appeal from this order. A subsequent order found her in contempt for removing the child from this state and awarded “immediate possession” of the child to the father. No appeal was attempted from this order.

The Court of Appeals rendered an opinion in which it affirmed the “jurisdiction order” of the circuit court and remanded the case back to that court for a disposition of the question of modification of the foreign custody order on the merits. The mother moved this court for discretionary review of the decision of the Court of Appeals which we granted. We now hold that the circuit court’s “jurisdiction order” was not reviewable by direct appeal and that the decision of the Court of Appeals should be vacated and the appeal dismissed.

Prior to the adoption of the Civil Rules of Procedure, the appellate court had no jurisdiction to review by direct appeal orders, and judgments of a circuit court unless they were final. Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (1946). In 1953 the adoption of the Civil Rules of Procedure retained this rule in a modified form by the provisions of CR 54.

CR 54.01 declares: “. . .A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.”

CR 54.02 is confined to actions involving multiple claims or multiple parties. It permits an interlocutory judgment or order to be made appealable under specified circumstances. The action before the circuit court involved neither multiple claims nor multiple parties. CR 54.02 did not apply.

Where an order is by its very nature interlocutory, even the inclusion of the recitals provided for in CR 54.02 will not make it appealable. Hale v. Deaton, Ky., 528 S.W.2d 719 (1975). See also Clay, Ky. Prac., 3rd Ed. Civil Rule 54.02, p. 14 (1977 Pocket Part).

Although the question is not raised by the parties or referred to in the briefs, the appellate court should determine for itself whether it is authorized to review the order appealed from. Hubbard v. Hubbard, supra.

This “jurisdiction order” was plainly an interlocutory determination. The recitals made by the trial judge added nothing. It was not reviewable by direct appeal.

The decision of the Court of Appeals is vacated and the cause is remanded to that court with directions to dismiss this appeal.

All concur.


author: STERNBERG, Justice.

text:
    EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Dan T. LAWRENCE, Appellee.
    Supreme Court of Kentucky.
    March 14, 1978.
    Stephen D. Gray, Henderson, for appellant.
    Earl T. Osborne, Paducah, for appellee.
   STERNBERG, Justice.

This appeal involves the nature and adequacy of a notice required to be given to terminate a contract of employment. A jury trial in the Marshall Circuit Court resulted in the dismissal of appellee’s claim for damages, which he charges to have sustained by reason of the alleged failure of the appellant to properly terminate his employment. On appeal to the Court of Appeals of Kentucky the judgment of the Marshall Circuit Court was reversed. On September 13, 1977, we granted discretionary review.

The questions presented by counsel are:

“Did the trial court commit prejudicial reversible error in its interrogatory instructions to the jury?
Did Lawrence have an affirmative duty to inquire of Equitable about his employment status?
Was the contract terminated by Equitable according to its terms?
If the contract was not terminated according to its terms, then was it breached by Equitable?
If the contract was breached by Equitable, what damages was Lawrence entitled to?”

We find that Lawrence had actual knowledge of the cancellation of his contract of employment. Actual knowledge is sufficient to bring about its termination. Consequently, we do not reach any of the other questions posed by counsel.

In July, 1974, the appellee, Dan T. Lawrence, was employed by the appellant, Equitable Life Assurance Society of the United States, under what is known as a preem-ployment agreement. Thereafter, on September 1, 1974, he entered into what is known as a 12th edition contract. A controversy arose between the parties and ap-pellee’s employment was terminated.

The appellee spent several years in the United States military service. After leaving the service he went to work for the United States Foreign Service in a classified communications section of the Department of State. He attended college and, while doing so, performed odd jobs. Upon graduation he went to work for the “Combined Insurance Company of America” selling travel accident insurance policies, where he worked for about four months before joining Equitable. While employed by Equitable, the appellee worked out of the Jett Agency office and under the direct supervision of D. B. Jett, an agent for the appellant. Justifiably or not, Jett became displeased with Lawrence and on July 1, 1975, told him that he (Lawrence) was through as of June 30, 1975. By letter of the same date Jett advised Lawrence that he was recommending that Lawrence’s employment with Equitable be terminated as of June 30,1975. Lawrence had no doubts but that Equitable would follow Jett’s recommendation. Jett also advised Lawrence that he could no longer sell insurance to anyone because his license to sell was being pulled. Thereafter, Lawrence cleaned out his desk, left the agency’s office, and ceased to act as an agent for the appellant. Lawrence went back to college, while looking and interviewing for other work.

On July 2, 1975, Lawrence applied for unemployment insurance, representing that his last employer was Equitable and that he last worked on June 30, 1975. On July 8, 1975, Lawrence signed a participation agreement wherein he assigned to one of Equitable’s agents at Princeton, Kentucky, the percentage of commissions he would have received had he not been terminated. On July 10, 1975, he wrote a letter to the President of Equitable, which stated in part as follows:

“I was under a 12th edition contract with Equitable from September 1,1974 to my termination by you on June 30, 1975. * * * If nothing else, my 10 months with the Equitable has been a real education * * * The only other thing I wish to say is that I feel that the Equitable owes me my 12th edition check for July and August as I fulfilled my required production credits through my last evaluation date of 31 May.”

By letter dated July 15, 1975, a director of Equitable further notified appellee that his 12th edition contract had been terminated as of June 30, 1975.

As we see the case, the controlling issue is whether Lawrence was duly notified that his employment with Equitable had been terminated as of June 30, 1975. Paragraph XII of the contract under which Lawrence worked provides as follows:

“Unless automatically terminated by expiration or otherwise as herein elsewhere provided, the Agent’s employment hereunder may be terminated forthwith at any time at the option of either party hereto by notice to the other, as of the date therein set forth for such termination. Such notice, if from the Agent, shall be sufficient if in writing and delivered in person to the Agency Manager or mailed to him or the Society. Such notice, if from the Society, shall be sufficient if in writing and delivered in person to the Agent or mailed to him at his last known address on file with the Society.”

It is admitted that Lawrence could terminate the contract at any time. Likewise, it is admitted that Equitable could terminate the contract at its pleasure, provided, of course, proper notice was given. The contract does not provide that the only methods of giving notice are those contained in the contract. The methods of giving notice provided for in the contract are but two of many ways that notice can be given. The specifying of a method of giving notice does not exclude other methods. Actually, one of the methods of giving notice is far from assuring Lawrence that he would ever actually receive written notice of his termination because, under the terms of the contract, the notice is sufficient if mailed to Lawrence at his last known address on file with Equitable, which may or may not have been the address at which he received his mail.

We do not have before us a situation where the agent was of low intellect. The evidence discloses that Lawrence is a man of above-average ability and his conduct indicates him to be a bright and energetic person. He is a college graduate, having graduated from Murray State University with a degree in accounting. At the time of the trial of this action Lawrence was working for the United States Internal Revenue Service. A man of such qualities, that he formerly was employed by the United States in a classified communications section of the Department of State, is not a stumblebum.

58 Am.Jur.2d, Notice, Sec. 4, is as follows:

“What amounts to actual notice.
* * * * * *
It has been said that when a person knows of a thing he has ‘notice’ thereof, as no one needs notice of what he already knows. But it may be more accurate to say that actual knowledge supersedes a requirement of notice, that there may be actual knowledge' acquired in modes which do not amount to notice, and that this knowledge may produce the same effects which the rules of equity attribute to notice.
While extrajudicial proceedings, or proceedings without jurisdiction, do not operate as constructive notice, yet express notice obtained from such proceedings operates the same as notice obtained in any other manner.”

In Mitchell v. First National Bank of Hopkinsville, 203 Ky. 770, 263 S.W. 15 (1924), this court stated:

“One who has reasonable grounds for suspecting or inquiring ought to suspect and ought to inquire, and the law charges him with the knowledge which the proper inquiry would have disclosed. If a person has knowledge of such facts as would lead a fair and prudent man, using ordinary care and thoughtfulness, to make further inquiry, and he fails to do so, he is chargeable with the knowledge which by ordinary diligence he would have acquired.”

What may be notice to one person may not be notice to another. Each case must stand, or fall, on its own facts. It can hardly be conceived that a person who had any doubt as to whether he had been terminated would not go to the Jett Agency and inquire of Mr. Jett whether his employment had been actually terminated. That is not the way an intelligent person like the appel-lee would act. The evidence is more than sufficient to demonstrate that Lawrence was fully cognizant on July 1, 1975, that he no longer worked for Equitable, and the trial court, as a matter of law, should have so found.

The opinion of the Court of Appeals rendered on June 3, 1977, reversing this action is set aside and held for naught, and the judgment of the Marshall Circuit Court dismissing appellee’s claim is affirmed.

All concur, except JONES, REED and STEPHENSON, JJ., who dissent on the basis that the review was improvidently granted.


text:
    Simon Sylvester HAYDEN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 14, 1978.
    Jack Emory 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.
   REED, Justice.

Simon Sylvester Hayden, Jr., the appellant, was indicted for killing Shirley Yates and for killing and robbing Truong Huy Do. The crimes occurred on or about November 15,1976. Hayden at this time was 15 years old. The juvenile court transferred the case to circuit court where Hayden was tried as an adult. The jury convicted him of two counts of first-degree manslaughter and one count of first-degree robbery. KRS 507.030 and 515.020. The jury fixed his punishment at 15-years’ imprisonment on each of the two first-degree manslaughter convictions and 10-years’ imprisonment on the robbery conviction. The trial judge entered judgment in accordance with the jury verdict and provided that the sentences were to be served consecutively. Hayden appeals.

We reverse for a new trial because Hayden was denied due process as interpreted by the United States Supreme Court when the trial judge failed to hold an evidentiary hearing to determine whether Hayden was mentally competent to stand trial.

Hayden was tried in February 1977. On January 26, 1977, his attorney notified the trial judge that he (the attorney) doubted “the present fitness of the defendant to proceed or to participate rationally in his own defense upon the charges brought against him under this Indictment.” The trial judge ordered a “mental examination upon the defendant, Simon Sylvester Hayden, Jr., for the purpose of determining whether said defendant’s mental condition and the existence of any mental disease or defect would effect (sic) said defendant’s competency to stand trial . . ..” Pursuant to this order, Hayden was sent to Green River Comprehensive Care Center for evaluation of his mental condition.

At Green River Center, Hayden was examined by a clinical psychologist and later by a psychiatrist. The psychologist found that “ . . . the evidence supports a schizophrenia of fairly long standing which is exacerbated by recent stress situations.” He expressed no opinion on Hayden’s competence to stand trial. The psychiatrist reported that, in his opinion, Hayden was a “Schizoid personality” who “probably de-compensated into a psychotic episode when under stress.”

The psychiatrist made the following report concerning Hayden’s competence to stand trial:

“ . . . In addition at this point in time, it is my feeling that he probably could assist his attorney in the preparation of his defense and therefore probably is competent to stand trial although due to his dullness and looseness of associations, one would have to be very concrete with him using extremely simple phrases and ideas.”

KRS 504.040(1) provides:

“No person who as a result of mental disease or defect, lacks capacity to appreciate the nature and consequences of the proceedings against him or to participate rationally in his defense shall be tried, convicted or sentenced for the commission of an offense, so long as such incapacity endures.”

RCr 8.06 states:

“If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant is insane, the proceedings shall be postponed and the issue of sanity determined as provided by law.”

It appears that KRS 504.040(1) delineates the criterion for determining whether a defendant is “insane” as that word is used in RCR 8.06. The commentary to the Kentucky Penal Code of which KRS 504.040 is a part explains:

“This section [KRS 504.040] adopts the accepted criterion for determining whether a defendant is mentally able to proceed. The criterion that is used here is different from that of KRS 504.020 [mental disease or defect] since the two provisions serve substantially different purposes. This section has significance only as of the time of the proceedings against an offender, therefore, it is framed in terms of his capacity to appreciate the nature of the proceedings and to participate rationally in his own defense. If an alleged offender’s mental state does not meet this minimum standard, this section prohibits trial, conviction or sentence.”

According to the report of the psychiatrist, Hayden could not define the function of a jury and did not know what it was. ■He said the function of the judge was to set bond and pass sentence and to give a subpoena. The psychiatrist meaningfully qualified his opinion that Hayden probably could assist his attorney by recommending that “one would have to be very concrete with him using extremely simple phrases and ideas.” We have read Hayden’s testimony at his trial. It illustrates the reason for the psychiatrist’s recommendation.

The conviction of an accused person while he is legally incompetent violates due process and state procedures must be adequate to protect this right. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

In the case before us, Hayden’s attorney expressed doubt concerning the competence of his client to stand trial based on his interviews and conferences with him. The psychiatrist would only qualify Hayden to participate in a trial procedure that would be “very concrete” and where only “extremely” simple phrases and “ideas” would be used. In our opinion, such procedure could hardly be characterized as a “due process trial” for criminal conduct. Cf. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Hayden’s testimony at the trial fails to inject evidence sufficient to overcome the previous reasonable doubt we find to exist concerning his mental competency to stand trial determined by the criterion expressed in KRS 504.040(1). We therefore hold that the trial judge erred when he failed to conduct an evidentiary hearing concerning Hayden’s mental competence to stand trial as mandated by RCr 8.06.

We reject Hayden’s other assertions of error. His contention that he was entitled to a directed verdict of acquittal on his exculpation defense of insanity at the time of the commission of the offenses is without merit. The criterion to be applied is specified in KRS 504.020. In order to exculpate the criminal conduct he was required to establish that at the time of the commission of the offenses he suffered from a mental disease or defect that caused him to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. His evidence in this respect was not so compelling as to require a finding in his favor by the court as a matter of law. Therefore, the issue was properly submitted to jury for its determination. Cf. Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974).

Hayden argues that his confession to the police should not have been admitted in evidence because Miranda was violated, and the confession was involuntary. All of the evidence heard by the trial judge on the admissibility of the confession was produced by the prosecution. The prosecution’s proof established careful compliance with the Miranda requirements by the authorities. It also explained in detail the police conduct in securing the confession. “ . . . Most courts hold that a minor may waive his rights and confess without first seeing a lawyer or his parents, although waiver may be more difficult to prove because of the suspect’s age. See cases collected in 1974 Model Code at 155 fn. 4.” Kamisar, LaFave, and Israel, Model Criminal Procedure, 590 (4th ed. 1974). The trial judge found the confession to be voluntary. We cannot call his finding clearly erroneous. Allee v. Commonwealth, Ky., 454 S.W.2d 336 (1970) requires us to reject this assertion of error.

Hayden’s final contention is that jurisdiction of the juvenile court was invalidly waived and he was improperly transferred to circuit court to be tried as an adult. The juvenile proceedings and the transfer were in accordance with the standards recently announced. Hayden’s constitutional rights in this aspect of the case were fully afforded him. See Sharp v. Commonwealth, Ky., 559 S.W.2d 727 (1977).

In view of our conclusions, what then shall be the disposition of this appeal? We are frank to say that if we were writing on a clean slate we would adopt the procedure used by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), where the case was remanded to the trial court for a separate hearing on the voluntariness of the defendant’s confession with provision that if the confession was found to be involuntary he would be awarded a new trial with the confession suppressed, but if the confession was found to be voluntary the judgment of conviction would remain undisturbed.

Pate v. Robinson, supra, however rejected this resolution where the issue was the defendant’s mental competence to stand trial. The court noted “the difficulty of retrospectively determining an accused’s competence to stand trial.” The court noted that the hearing would be held six years after the fact. It was therefore directed that if the state elected to retry the defendant, it was open to him to raise the question of his competence to stand trial at that time and to request a special hearing thereon. “In the event a sufficient doubt exists as to his present competence such a hearing must be held. If found competent to stand trial, Robinson [the defendant] would have the usual defenses available to an accused.” Pate v. Robinson, 86 S.Ct. 836, 843 (1966).

In Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the unanimous opinion stated:

“The question remains whether petitioner’s due process rights would be adequately protected by remanding the case now for a psychiatric examination aimed at establishing whether petitioner was in fact competent to stand trial in 1969. Given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances, (citations omitted) we cannot conclude that such a procedure would be adequate here. (Citation omitted). The State is free to retry petitioner, assuming, of course, that at the time of such trial he is competent to be tried:”

Although some of the difficulties in Robinson, supra, and Drope, supra, are absent in this case, and the opportunity for concurrent determination is much greater, nevertheless, the Supreme Court before the decisions in Robinson and Drope had declared in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960):

“In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner’s competency as of more than a year ago, we reverse the judgment of the Court of Appeals affirming the judgment of conviction, and remand the case to the District Court for a new hearing to ascertain petitioner’s present competency to stand trial, and for a new trial if petitioner is found competent. It is so ordered.”

See also Via v. Commonwealth, Ky., 522 S.W.2d 848 (1975).

Thus we are compelled to reverse the judgment of conviction and remand the case to the circuit court for an evidentiary hearing and determination of Hayden’s present mental competence to stand trial. If Hayden is found mentally competent he may be tried again, if he is found incompetent to stand trial, he shall be dealt with as provided in KRS 504.040(2).

The judgment is reversed for further proceedings consistent with this opinion.

All concur.