author: DOYLE, Justice.

text:
    Aline KEES et al., Appellants, v. MEDICAL DIRECTORS, INC., Appellee.
    No. 17438.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 7, 1979.
    Rehearing Denied July 5, 1979.

      Jefferson & Maley, Michael A. Maness, Houston, for appellants.
    Lieberman, Tratras & Markowitz, Murray L. Lieberman, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   DOYLE, Justice.

This case involves an appeal from a temporary injunction to enforce the non-competition provisions of employment contracts between Aline Kees, Martha Jane Tucker, Mike Hutchins and Miles Anthony Joanen (appellants) and Medical Directors (appel-lee). From an order granting a temporary injunction against all of them, appellants have perfected this appeal claiming that the trial court abused its discretion in granting the injunction because there was no evidence of probable injury resulting from appellants’ competitive activities and that there was no compliance with the specificity requirements of Rule 683, T.R.C.P. We agree.

The relevant facts are undisputed. All parties associated with this litigation are involved in various capacities in the weight reduction field.

Sometime between 1976 and 1978, all four appellants executed employment contracts with appellee and worked in one of appel-lee’s clinics. Contained in each appellant’s employment contract was the following clause which is the basis of this suit:

“that in the event of the termination of his/her employment with “Employers” for any reason whatsoever, he/she will not, for a period of five (5) years from the date of such termination (or for the maximum period provided by law, whichever is less) directly or indirectly enter the employ of or become interested or affiliated or connected, directly or indirectly, in any business in a county where there is one of “Employers’ ” “Clinics” or within 100 miles of a county where there is one of “Employers’ ” “Clinics,” which business is similar or of a like nature to the business of “Employers.”

During 1978, Joanen and Hutchins terminated their employment with appellee; Kees was fired and it is disputed as to whether Tucker was fired or voluntarily terminated her job. Subsequently, all four appellants accepted positions with another weight reduction center known as Dia-Medic, Nurti-Medic or Weight Loss Centers.

Alleging that such employment violated appellants’ contracts with it, appellee brought an injunction against Kees, Tucker, Joanen and later Hutchins, to prohibit them from attempting to solicit, diverting or taking away any customers, patients or employees of appellee whose identity appellants gained while in appellee’s employ. Although appellants state that evidence adduced at a prior hearing was incorporated in the hearing before us by stipulation of counsel, the record is silent on that matter and appellee denies any such stipulation, thereby restricting this court’s review to only the evidence elicited in the instant hearing.

Testimony at this hearing adduced the following facts: Kees, an LVN, stated she worked as a Licensed Vocational Nurse for appellee and now runs an electrocardiogram for her present employer. She did not operate this machine while employed by appel-lee. Tucker testified that her position with appellee included sales and management. She stated she has been employed in various weight reduction clinics for nine years or longer and that during this time her duties have all been essentially the same as when she worked for appellee. Testimony elicited from Hutchins showed he is an administrator with his present employer and served in this same position with appellee. Kees, Tucker and Hutchins did not testify at all as to any special training programs or “trade secrets” utilized by appellee.

Joanen testified that he was in an administrative position on a statewide level with appellee and that he is now in an administrative position on a citywide level with his present employer. He further testified that he has been in the health spa business for seven years and that prior to working for appellee he was employed by President’s First Lady when it operated weight reduction centers. He did not testify as to any special training programs or procedures of appellee, but did state he helped design the program appellee used and this program has been used throughout the weight reduction industry. When asked if he took forms from appellee, he replied “the forms were provided me by the company I work for which use the same type forms that are used throughout the industry.” He also testified that while both clinics had similar advertising, he did not approve or write any of the advertising. Further testimony showed that Joanen could recommend personnel to be hired by his new employer, but he could not hire anyone.

No testimony was introduced by any employee of appellee that they had been coerced, coaxed or induced in any manner by any of the appellants to leave appellee’s employ. No testimony was introduced from any customer or patient of appellee that they had been approached by any of the appellants or that they had mistakenly gone to the wrong clinic. Finally, there was no testimony from any employee of appellee that appellants had any special training, or knowledge of any “trade secrets” familiar only to appellee.

Greg Vosler, testifying on behalf of ap-pellee, stated appellants’ present employer was located within “six blocks” of one of appellee’s clinics and “four to seven miles” of another clinic. He further testified that appellee advertised on radio, TV, every newspaper and every local TV Guide and national magazine spending approximately $70,000 for advertising. Vosler did not specifically explain how, why or what competition had caused the increase in appellee’s advertising budget.

Upon conclusion of this hearing, the tern-, porary injunction was issued enjoining appellants from working for any competitor within a geographic location of 100 miles of appellee’s clinics for a period of 2 years, or when the case is decided on its merits, whichever occurs first.

Appellants bring two points of error, the first of which complains of the trial court’s abuse of discretion in granting the temporary injunction. Appellants contend that the evidence wholly fails to establish either a probable right to enforcement of the covenant not to compete or probable injury resulting from Appellants’ competitive activities.

As a general rule, to warrant the issuance of a temporary injunction, the applicant need only show probable right and probable injury; the applicant is not required to establish that he will prevail in litigation. State v. Southwestern Bell Telephone Co., 526 S.W.2d 526 (Tex.1975); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

The trial court is clothed with broad discretion in determining whether a temporary injunction should be issued, Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Texas Foundries, Inc. v. International Moulders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460 (1952), and its order should not be reversed unless an abuse of discretion is clearly demonstrated. State v. Southwestern Bell Telephone Co., supra; Transport Co. of Texas v. Robertson Transports, supra; MGJ Corporation v. City of Houston, 544 S.W.2d 171 (Tex.Civ.App.—Houston 1st Dist. 1976, ref’d. n. r. e.).

In considering whether there has been an abuse of discretion by the trial court in the granting of a temporary injunction, this court is obliged to follow certain well-defined guidelines established by enlightened legal scholars and the decided cases. Thus, as in the case before us, where no findings of fact or conclusions of law were requested and none were filed, all questions of fact are presumed found in support of the judgment and the judgment must be affirmed if it can be upheld on any legal basis supported by the evidence. Lassiter v. Bliss, (Tex.1977) 559 S.W.2d 353; Buchanan v. Byrd, (Tex.1975) 519 S.W.2d 841; Seaman v. Seaman, (Tex.1968) 425 S.W.2d 339.

In reviewing the evidence by this standard, the only adduced testimony tending to show injury to appellee’s business was Greg Vosler’s explanation that appellee’s advertising budget had increased by approximately $30,000 since 1978. By his admission, however, he explained this increase was because appellee wanted to “saturate the market.” He did not claim it was because of any acts of appellants. The record does not show that such advertising harmed appellee’s business in any way. Copies of ads distributed to local papers and magazines were introduced showing similarities between appellee’s copy and that of appellant’s employer. Appellee offers no evidence to show that these ads harmed or injured his business in any way.

In Munzenrieder & Associates, Inc. v. Daigle, 525 S.W.2d 288 (Tex.Civ.App.—Beaumont 1975, no writ) the court held:

Plaintiff also attempted to show that the defendants were using plaintiff’s advertising techniques and methods which they learned and acquired from the plaintiff. But the use of plaintiff’s methods which proves no threat to plaintiff is not sufficient grounds to uphold a covenant-not-to-compete.

No employees or customers of appellee testified that they were any manner approached or affected by appellants or their advertising.

Probable injury must be imminently threatened and may not be speculative or conjectural. Bradford v. Cole, 559 S.W.2d 122 (Tex.Civ.App.—Texarkana 1977, no writ).

A trial judge abuses his discretion if he issues a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961). After carefully searching the evidence, we can find no reasonable basis for concluding that appellee has a probable right of recovery or that it would suffer probable injury resulting from appellant’s alleged competitive activities. Custom Drapery Company, Inc. v. Hardwick, 531 S.W.2d 160 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ).

By their second point of error appellants point out the trial court erred in not setting out the specific reasons for the issuance of its temporary injunction as required by Rule 683. Appellee argues that since the court’s order follows the language of the employment contracts’ provisions sought to be enforced, compliance with Rule 683 is achieved. The Supreme Court of Texas and the courts of civil appeals have held that compliance with the specificity clause of Rule 683 is mandatory. Transport Co. of Texas v. Robertson Transports, supra; State v. Cook United, Inc., 464 S.W.2d 105 (Tex.1971); Southwestern Bell Telephone Company et al. v. Gravitt, 522 S.W.2d 531 (Tex.Civ.App.—San Antonio 1975, no writ). The order granting the temporary injunction in the case before us clearly fails to “ . . describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; . . . ” Further, the order sets forth no reasons or grounds as to why or how harm or injury would be suffered by appellee if the injunction sought were denied. We sustain appellants’ second point of error.

The order granting the temporary injunction is reversed, and it is ordered that the same be dissolved.


source: Caselaw Access Project

author: PRESLAR, Chief Justice.

license: Public Domain

text:
    Beatrice HAYES, Appellant, v. Sam SNODDY, Independent Executor of the Estate of Gladys I. Kerr, Deceased, Appellee.
    No. 6801.
    Court of Civil Appeals of Texas, El Paso.
    June 13, 1979.
    Jay L. Nye, El Paso, for appellant.
    Diamond, Rash, Leslie & Smith, Donald S. Leslie, Malone & Snoddy, Orba Lee Malone, Robert B. Lyons, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a declaratory judgment suit to construe a provision in a Will, and the sole question is the sufficiency of the evidence to support a trial Court finding that certain property increased in value by more than 25% since the making of the Will. We affirm the judgment of the trial Court.

The Testatrix, Gladys Kerr, by her Will directed her Independent Executor to sell to Beatrice Hayes under a Contract of Sale certain property described as 8045 and 8053 Alameda Avenue in the City of El Paso, Texas, also legally described as Ayr Lawn Subdivision, Tracts 5 and 6, El Paso, El Paso County, Texas. The Will then provided:

Said property is to be sold on the following terms: The total price for the property is $25,000.00, and in the event that the property has appreciated in value by more than 25% it is to be sold at the fair market value.

The Will then outlined the terms of the sale, and provided that Mrs. Hayes would have thirty days to complete the transaction and in the event that she didn’t, it would then be offered to another friend on the same terms and conditions; and if that friend failed to complete the transaction, then the property would revert to the Estate of the Testatrix.

Mrs. Hayes, Appellant, brought this action for a construction of the Will contending that she is entitled to purchase the property for the amount of $25,000.00 under the terms of the Will for the reason that the-property had not appreciated in value by more than 25%. The Court, sitting without a jury, found that the land had appreciated over 25%, and that fair market value at the time of the Testatrix’ death was $52,500.00. Appellant questions that finding.

Appellant argues that price and value are not the same thing, and cites many examples and authorities for such examples. She reasons that the evidence is not sufficient to show more than 25% increase in value because its value at the time of the making of the Will was not necessarily the same as the $25,000.00 “price.” The trial Court’s construction of the Will is that the intent of the Testatrix was that the 25% increase was to be above the $25,000.00. This construction of the Will by the trial Court is from the terms of the Will itself. The trial Court has construed the Will to give Appellant the option to purchase for $25,000.00, and that that was the base figure from which the increase in value was to be calculated. Whether we call that base figure the “price” or “value,” it appears to be the intent of the Testatrix; that the 25% was to be calculated based on that figure of $25,000.00. The trial Court has so construed it, and there is nothing in the Will to indicate otherwise. The Will is not ambiguous; it speaks for itself. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888 (1948); Henneke v. Andreas, 473 S.W.2d 221 (Tex.Civ.App.-Austin 1971, writ ref’d n. r. e.).

The Appellant’s sole point of error is that there is no evidence and insufficient evidence to sustain the trial Court’s finding that the property had increased in value by more than 25%. With $25,000.00 as the base figure, there is no question but that the evidence sustains the trial Court’s finding of 25% increase which would amount to a new value of $31,250.00, and no appraiser or witness placed a market value below that figure. Lonnie Skiff, an independent appraiser employed by the Executor of the Estate, testified that the land value was $52,500.00; Dennis Wagner, an appraiser employed by the Appellant, valued the land at $47,000.00; Frank Attaguile, a realtor, obtained two offers for the real estate of $56,000.00 and $50,000.00. Thus, there is ample evidence to support the trial Court’s finding that the value of the property had increased by more than 25%.

The judgment of the trial Court is affirmed.


text:
    Charles R. WOLFE, Appellant, v. EAST TEXAS SEED COMPANY, Appellee.
    No. 17277.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 14, 1979.
    Rehearing Denied July 5, 1979.
    Adams, Adams & Blackburn, Joe R. Blackburn, Houston, for appellant.
    Parks & Moss, Michael L. Parks, Houston, for appellee.
   DOYLE, Justice.

This is an appeal from a judgment based on a sworn account. East Texas Seed Company (appellee) sued Charles R. Wolfe (appellant) and Nick Wolfe, doing business as Wolfe Construction Company, for certain goods and merchandise sold and delivered to the construction company on an open account from February 9, 1974, through September 30, 1974, for a total amount of $6,323.05. Alternatively, appellee sued the partnership of Charles R. Wolfe and Nick Wolfe, doing business under the firm name of Wolfe Construction Company, for the amount of the debt, claiming that appellee had no knowledge of the dissolution of the partnership in 1973, said partnership having been formed in 1971. Appellee further alleged that if it had been aware of said dissolution it would not have extended credit to the construction company. Each of the Wolfes was represented by counsel at the trial before the court. Appellant defended on the grounds that he was without legal capacity to be sued since his partnership with Nick Wolfe had been dissolved in 1973 prior to the inception of debt made the basis of this suit. The merchandise invoices of appellee were introduced without objection by appellant. The trial court awarded appellee judgment against the defendants, jointly and severally, for $5,318.04 with interest. Only Charles R. Wolfe appealed. We affirm this judgment.

The record before this court includes appellant’s motion for new trial wherein he claims appellee did not rely on his credit as a requirement for transacting business with Wolfe Construction Company and he objects to allowing the photocopies of the sales invoices into evidence. This record also includes a statement of facts, transcript and the photocopy exhibits. No findings of fact or conclusions of law were requested or filed.

Appellant’s first two points of error complain of the trial court’s admission of machine duplicated copies of invoices of account, without which there would be no evidence of his indebtedness to appellee.

The evidence shows that defendant Nick Wolfe objected to the admission of the photocopies of the sales invoices, but appellant did not. On appeal, appellant seeks to avail himself of his co-defendant’s objection to the photocopies interposed at the trial. We hold that appellant can not do so. Appellant had at least two opportunities to object to this evidence when asked directly by the trial judge if there were any objections.

Objections to the admission of evidence must be timely made when the evidence is offered and not after it has been received. 3 Tex.Jur.2d Appeal and Error— Civil § 111 (1974) p. 451. Housing Authority of City of Galveston v. Henderson, 267 S.W.2d 843 (Tex.Civ.App.—Galveston 1954). Further, a party must make his own objection to the evidence, or an exception to the ruling of the court regarding the objection, if he wishes to preserve any error for appeal. 4 C.J.S. Appeal and Error § 251 (1957) p. 769; South Padre Development Co. v. Realty Growth Investors, 543 S.W.2d 880 (Tex.Civ.App.— Corpus Christi 1976, writ ref’d n. r. e.).

Appellant’s contention that the trial court had before it no admissible evidence that appellant was indebted to appellee is without merit. Appellant waived any error regarding the admissibility of photocopies when he failed to timely object. Sections 2, 3 and 4 of Article 3731b, V.A.T.S., specifically provide for the introduction into evidence of copies reproduced by “photographic, photostatic, microfilm or other process which accurately reproduces or forms a durable medium for so reproducing the original, . . .”

The court allowed extensive examination of the subject exhibits. Appellee’s manager of the Houston branch of East Texas Seed Company, Mr. Kirby, had to verify the signatures and circumstances regarding each exhibit. Also, the court allowed no damages for those invoices appellee could not substantiate, thus decreasing appellee’s damage amount from $6,323.05 to $5,318.04. We overrule appellant’s first two points of error.

Points of error three and four allege that the district court erred in rendering judgment for the plaintiff in that there was no evidence of probative value in the record to show that the plaintiff knew of or relied in any way on the individual credit of defendant Charles R. Wolfe as a partner in the company in selling the merchandise or incurring the account, and that the court also erred in rendering judgment for the plaintiff against defendant Charles R. Wolfe in that the evidence of record clearly shows that this defendant received no value or benefit from any of the items made a basis of this suit. We overrule these points of error.

Appellant argues that pursuant to the Texas General Partnership Act, article 6132b, V.A.T.S., he is not under any duty to tender notice of dissolution of the partnership to creditors and, further, that he is absolved from all partnership liability under section 35(2)(a) of the Partnership Act, stating:

(2) The liability of a partner under Paragraph (lb) shall be satisfied out of partnership assets alone when such partner had been prior to dissolution:
(a) Unknown as a partner to the person with whom the contract is made; and
(b) So far unknown and inactive in partnership affairs that the business reputation of the partnership could not be said to have been in any degree due to his connection with it.

Appellant cites no authority for his interpretation of this article.

A fair summary of the testimony concerning the partnership and its dissolution is as follows: Appellee’s manager, Mr. Kirby, admits he did not know whether appellant’s company was a partnership when it first began doing business with them. He stated that he first became aware of the partnership in 1974 after it had been dissolved. He further explained that if he had known of the dissolution he would have investigated the matter and that it would have made a “whole lot” of difference to his company.

Appellant strongly contends that since the partnership had been terminated before the inception of the debt, he should not be personally liable. As a general rule this would be true where notice of the dissolution has been given to third parties who had dealings with the partnership. On the other hand, absent any notice of dissolution, appellant can not escape personal liability for the subject debt unless he can show that prior to dissolution, he had been “So far unknown and inactive in partnership affairs that the business reputation of the partnership could not be said to have been in any degree due to his connection with it.” Article 6132b, Sec. 35(2)(b). The facts before us show that appellee did business with the company prior to the partnership dissolution; that appellant was known as Wolfe Construction Company; that the company was composed of two brothers, Nick and Charles R. Wolfe; that either man had authority to purchase seed; and that both men bought and paid for the seed. Appellant denies receiving any benefit from these transactions personally, but admits the partnership could have purchased the seed and benefited from it. Business was continued by appellant under the same name of Wolfe Construction Company, Nick Wolfe still worked for the company and no notice of partnership dissolution was sent to appellee. Appellant’s reputation was relied on in transactions with appellee, and even in the absence of any partnership agreement parties may be bound as partners as to third parties. Edwards v. West Texas Hospital, 89 S.W.2d 801 (Tex.Civ.App.—Amarillo 1935, dismissed).

The judgment of the trial court is affirmed.

COLEMAN, C. J., and PEDEN, J., also sitting.


author: HALL, Justice.

text:
    In the Interest of T. E. T.
    No. 6012.
    Court of Civil Appeals of Texas, Waco.
    June 14, 1979.
    Rehearing Denied July 5, 1979.
    John V. Elick, Elick & Elick, Bellville, for appellant.
    James E. Doyle, Foreman, Dyess, Prew-ett, Rosenberg & Henderson, Houston, George R. Moorman, Moorman & Tate, Brenham, Phyllis M. Bell, Houston, for ap-pellees.
   HALL, Justice.

The female child in question was born illegitimate on March 10, 1977. The child’s mother is appellee Cynthia T_(herein-after, “Cynthia”). She was 14 years of age when the child was conceived. It is undisputed in the record that the child’s biological father is appellant J. 0. He was 18 when the child was conceived. In October, 1976, Cynthia moved into a home provided for unwed mothers by plaintiff-appellee Catholic Charities of the Diocese of Galveston-Houston. She remained in the home until the child was born. She and J. 0. never married, and she was unwed at the time of trial.

After the child was born, Cynthia executed an affidavit in which she irrevocably relinquished her parental rights to plaintiff Catholic Charities and named plaintiff managing conservator of the child, under the provisions of V.T.C.A. Family Code § 15.03. The child is presently in a foster home. Adoptive parents have been approved by plaintiff, but the adoption awaits the outcome of this lawsuit.

Plaintiff filed this suit on March 21, 1977, in the 313th Judicial District Court of Harris County, Texas, to terminate the parent-child relationship between Cynthia and the child under the provisions of Family Code § 15.02(1)(I); to be appointed managing conservator of the child as provided by Family Code § 15.05(b); and to be appointed guardian ad litem of the child under the provisions of Family Code § 11.10(a). The relief sought was alleged to be in the best interests of the child. Plaintiff pleaded it is an “authorized agency” within the terms of Family Code § 11.01(7), approved and authorized by the State Department of Public Welfare to care for children and to place them for adoption. It also alleged that Cynthia had executed the irrevocable affidavit of relinquishment of parental rights to plaintiff and named it managing conservator of the child. (The affidavit, in evidence, was actually executed by Cynthia on May 11, 1977, after plaintiff filed its suit, but Family Code § 15.02(1)(I) provides that termination may be based on an irrevocable affidavit executed before or after the suit is filed).

In his initial pleading in the case, filed August 25, 1977, J. 0. moved the court to transfer the suit to the 155th Judicial District Court of Austin County, Texas, asserting that in a proceeding filed by him there he had been adjudged to be the natural and legitimate father of the child and had been appointed managing conservator of the child; that plaintiff Catholic Diocese and Cynthia were properly joined as parties in that suit but defaulted; and that under the provisions of Family Code § 11.05 the Court in Austin County had continuing jurisdiction over the matter in controversy in the present suit. He also moved for change of venue to Austin County on the ground that both he and Cynthia were residents of that County. Both motions were duly controverted by plaintiff on several grounds.

After a hearing before the court without a jury on September 14, 1977, J. O.’s motions to transfer and for change of venue were overruled by written order on October 7, 1977. The order recites that evidence was adduced on the motions.

Thereafter, additional pleadings were filed by the parties, and the case was tried to a jury in December, 1977, on these basic pleadings by the parties: J. O. generally denied the allegations in plaintiff’s petition, and pleaded for voluntary legitimation of the child and a decree designating him as the father of the child, under the provisions of Family Code § 13.01, and for judgment appointing him managing conservator of the child, alleging that he was a fit person to be named parent and managing conservator and that the orders he sought were in the best interest of the child. Plaintiff restated the pleadings set forth in its original petition and also alleged it “would require [J. O.] prove by a preponderance of the evidence that it is in the best interest of the child for [him] to be designated as parent of the child.” Cynthia contested J. O.’s petition for legitimation; asserted that he could not properly care for the child and was not a fit person to have custody of the child; alleged that his sole purpose in seeking to be declared parent of the child was “to forestall and prevent a criminal action for statutory rape” stemming from his sexual intercourse with Cynthia; denied that it was in the best interest of the child for J. O. to be adjudged the child’s parent; and pleaded that the best interest of the child would be served by granting the relief sought by plaintiff.

The two special issues submitted to the jury, and the jury’s answers to the issues, were as follows:

SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that it would be in the best interest of the child, [T.E.T.], to terminate the parental rights of [Cynthia],
Answer, “We do” or “We do not.”
ANSWER: We do.
SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that it is in the best interest of the child, [T.E.T.], that this Court designate [J. O.] her parent?
Answer, “He should be designated her parent” or
“He should not be designated her parent.”
ANSWER: He should not be designated her parent.

In connection with the special issues, the court gave the jury these instructions:

Parent means the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the parent-child relationship has been terminated.
You are instructed that absent a marital relationship between the biological father and the mother of the child, the biological father is not a parent of the child and does not have the rights of a parent. The parent-child relationship means all the rights, privileges, duties and powers existing between a parent and child. You are further instructed that a biological father may petition to legitimate the child and show that it would be in the best interest of the child to allow him to legitimate the child.
In determining these special issues, you shall consider the circumstances of [J. 0.] without regard to his sex.

Judgment was rendered terminating the parent-child relationship between ■ Cynthia and the child; denying J. O.’s petition for legitimation and managing conservatorship; and appointing plaintiff managing conservator. The judgment recites that it was based upon the verdict; upon the irrevocable affidavit of relinquishment of parental rights executed by Cynthia; and upon the court’s findings “on the merits” that termination of the parent-child relationship and appointment of plaintiff as managing conservator were in the best interests of the child, but that designation of J. 0. as parent was not in the best interests of the child.

J. 0. brought this appeal. He does not contend that either answer of the jury to the special issues is not supported by legally or factually sufficient evidence; and although he does assign error to the court’s failure to give the jury an instruction he requested, he does not attack any instruction given by the court.

Several assignments of error by J. 0. are based upon the proposition that the rights of the biological father and the unwed mother in relation to their child are treated unequally in favor of the mother in the Texas Family Code, and that accordingly he has been denied due process under the Federal Constitution. He tacitly concedes in his brief that his contentions of denial of due process were raised by the biological father and rejected by our Supreme Court in the case of In Interest of K, (Tex.1976) 535 S.W.2d 168, certiorari denied 429 U.S. 907, 97 S.Ct. 273, 50 L.Ed.2d 189 (1976), rehearing denied 429 U.S. 1010, 97 S.Ct. 542, 50 L.Ed.2d 620 (1976); and they were. Of course, we follow the rulings of our Supreme Court on those questions. Swilley v. McCain, (Tex.1964) 374 S.W.2d 871, 875.

Error is assigned to the orders overruling his motion to transfer the case to the District Court in Austin County and his motion for change of venue to that court. As we have said, the orders reflect that proof was heard on the motions. The record before us does not contain a statement of the facts adduced on that hearing, although J. O. was granted leave to file it. Findings of fact and conclusions of law related to the hearing were not requested by the parties nor filed by the court. Therefore, we must presume the proof made on the hearing supported the court’s implied findings and rulings on the motions. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82 (1955); Ehrhardt v. Ehrhardt, 368 S.W.2d 37, 38 (Tex.Civ.App.—Waco 1963, writ ref’d). For example, we must presume the evidence established that the present suit was filed by plaintiff before J. 0. filed the Austin County suit. If the present suit in Harris County was filed first, then the suit in Austin County also involving the best interests of the child was abated by the previously filed suit and the orders issued by the Court in Austin County affecting the child were void. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1071, 1075 (1926).

Some of the remaining assignments of error were not preserved for appellate review by proper and timely objection. None presents reversible error under the record. All are overruled.

The judgment is affirmed.


text:
    PARIS MILLING COMPANY, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, et al., Appellees.
    No. 6069.
    Court of Civil Appeals of Texas, Waco.
    June 14, 1979.
    Rehearing Denied July 5, 1979.
    J. D. McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellant.

      Mark White, Atty. Gen., Martha E. Smiley, Gilbert J. Bernal, Jr., Asst. Attys. Gen., Austin, for appellees.
   HALL, Justice.

In its parts pertinent to this appeal, V.A. T.S. Tax.-Gen. Art. 1.05 contains the following provisions:

“(1) Protest. Any person, firm, or corporation who may be required to pay to the head of any department of the State Government any occupation, gross receipts, franchise, license or other privilege tax or fee, and who believes or contends that the same is unlawful and that such public official is not lawfully entitled to demand or collect the same shall, nevertheless, be required to pay such amount as such public official charged with the collection thereof may deem to be due the State, and shall be entitled to accompany such payment with a written protest, setting out fully and in detail each and every ground or reason why it is contended that such demand is unlawful or unauthorized.
“(2) Suits for recovery of taxes or fees. Upon the payment of such taxes or fees, accompanied by such written protest, the taxpayer shall have ninety (90) days from said date within which to file suit for the recovery thereof in any court of competent jurisdiction in Travis County, Texas, and none other. Such suit shall be brought against the public official charged with the duty of collecting such tax or fees, the State Treasurer and the Attorney General. The issues to be determined in such suit shall be only those arising out of the grounds or reasons set forth in such written protest as originally filed.”

The facts in this case are undisputed. Defendant-appellee State Comptroller assessed deficiency franchise taxes against plaintiff-appellant Paris Milling Company for the years 1969 through 1975 totaling $12,749.25. Without first paying the taxes, and without joining the State Treasurer and the Attorney General as defendants, plaintiff filed suit in the 126th Judicial District Court of Travis County on October 14, 1976, against only the Comptroller to have the deficiency assessments “set aside and held for naught.” Plaintiff alleged in its petition that after exhausting all administrative hearings, it had brought the suit under the Administrative Procedure And Texas Register Act, Vernon’s Tex.Civ.St., Art. 6252-13a. On October 26, 1976, the Comptroller (represented by the Attorney General) excepted to plaintiff’s petition and sought dismissal on the grounds that appellant had not complied with “the jurisdictional requirements of Art. 1.05, Tax.-Gen., V.T.C.S., or otherwise [showed] consent of the State to be sued.” Thereafter, on February 1, 1978, plaintiff paid the taxes under detailed written protest to the Comptroller. Then, on April 24, 1978, appellant filed a second suit in the 126th Judicial District Court “for refund of said payment.” Plaintiff alleged the filing of the first suit, the Comptroller’s exception to the first suit on the ground that “plaintiff had not complied with the jurisdictional requirements of Article 1.05,” and that plaintiff had then paid the tax under protect. On May 12, 1978, the Comptroller (again represented by the Attorney General) moved for dismissal of the second suit on the ground the court lacked jurisdiction under the terms of Art. 1.05 because plaintiff had failed to file its suit “against . . . the State Treasurer and the Attorney General” within 90 days after payment of the tax. Later, on June 23, 1978, plaintiff filed its first amended original petition in the second suit joining the State Treasurer and the Attorney General as defendants, alleging (as in the first suit) that the suit was brought under the Administrative Procedure And Texas Register Act, and again praying (as in the first suit) that the deficiency assessment “be set aside and held for naught.”

On August 2, 1978, both suits were dismissed with prejudice by the trial court. The reason assigned in each judgment for the dismissal was, “Plaintiff’s suit did not meet the jurisdictional requirements of Article 1.05 [Tax.-Gen.], V.T.C.A.” The cases were consolidated on appeal.

Asserting that its first suit was properly and timely filed within the terms of § 19(a) of the Administrative Procedure And Texas Register Act, plaintiff contends that Act, which was enacted after Art. 1.05, repealed the latter statute and that the court accordingly erred in dismissing the suit on the ground of noncompliance with Art. 1.05.

The contention that Art. 1.05 was repealed by the enactment of the Administrative Procedure Act was expressly rejected in Robinson v. Bullock, 553 S.W.2d 196, 197-198 (Tex.Civ.App.—Austin 1977, writ ref’d n.r.e.); and Dan Ingle, Inc. v. Bullock, 578 S.W.2d 193, 194 (Tex.Civ.App. —Austin 1979, no writ). Without further discussion, we follow the reasoning and holdings in those cases on the question.

Plaintiff failed to meet the requirement of Art. 1.05 that it first pay the tax under protest before it filed its first suit. In the second suit, plaintiff sued the Comptroller within 90 days after it paid the tax under protest, but it failed to join the State Treasurer and the Attorney General as defendants within the 90 days as prescribed by the statute. If strict compliance with those provisions is necessary to invest the courts with jurisdiction of suits brought under the statute then plaintiff’s cases were properly dismissed. On the other hand, if suit properly brought against only one of the three named officials within the time limit confers jurisdiction, then plaintiff’s second suit was incorrectly dismissed.

It is a fundamental rule of law that a state cannot be sued without its consent, “and then only in the manner, place, and court or courts designated.” State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 424 (1936). Since a state may withhold its consent entirely, it may impose such conditions and limitations on its consent to be sued as it may deem desirable. Hardt v. Texas Dept. Of Corrections, 530 S.W.2d 897, 898 (Tex.Civ.App. —Austin 1975, no writ); Martin v. State, 75 S.W.2d 950, 952 (Tex.Civ.App.—El Paso 1934, no writ). A grant of consent to sue the state, being in derogation of sovereignty, must be strictly construed. Buchanan v. State, 89 S.W.2d 239 (Tex.Civ.App.—Amarillo 1936, writ ref.); 52 Tex.Jur.2d 769, State Of Texas § 54. Conditions and limitations imposed therein are jurisdictional facts, and there must be full compliance with them. State v. Isbell, supra; 81A C.J.S. States § 301, p. 961.

Art. 1.05 grants consent by the State to be sued by taxpayers who wish to seek recourse in the courts to question the legality of the State’s assessment of the tax. In line with the rules set forth in the preceding paragraph, the requirements in the statute (1) that the tax be paid before suit, (2) that a detailed written protest accompany the payment, and (3) that the suit be filed not later than 90 days from the date of payment, have been held to be jurisdictional facts. See, Robinson v. Bullock, 553 S.W.2d 196 (Tex.Civ.App.—Austin 1977, writ ref’d n.r.e.); Contran Corp. v. Bullock, 567 S.W.2d 616 (Tex.Civ.App.—Austin 1978, no writ); Bullock v. Electro-Science Investors, Inc., 533 S.W.2d 892 (Tex.Civ.App.—Austin 1976, no writ); Stelter v. Calvert, 456 S.W.2d 202 (Tex.Civ.App.—Austin 1970, no writ).

The Comptroller, the Treasurer, and the Attorney General have correlative statutory duties for the collection, preservation and disbursement of the taxes in question. By providing in the statute that plaintiff’s suit “shall be brought” against those officials, did the Legislature intend that all three must be joined as defendants within the 90-day period provided for bringing the suit in order to invest the court with jurisdiction? We hold that it did.

In Lambeth v. Texas Unemployment Compensation Commission, 362 S.W.2d 205 (Tex.Civ.App.—Waco 1962, writ ref’d n.r.e.) this court faced a similar problem under the terms of Vernon’s Tex.Civ.St. Art. 5221b— 4(i). That statute provides that an aggrieved party may obtain judicial review of a decision of the Unemployment Compensation Commission by commencing an action against the Commission within 10 days after the decision has become final “in which action any other party to the proceeding before the Commission shall be made a defendant.” Lambeth commenced suit against the Commission within the 10-day period, but first joined his employer as a party by amended pleading after the 10-day period had expired. The trial court dismissed the suit for want of jurisdiction. On appeal, this court interpreted the statute “to mean that the action must be commenced against the parties prescribed by its terms within 10 days after the decision becomes final in order to confer jurisdiction on the court.” Accordingly, the dismissal was affirmed.

See also, Texas International Airlines v. Texas Alcoholic Beverage Commission, 566 S.W.2d 693, 695 (Tex.Civ.App.—Austin 1978, no writ) in which the Austin Court of Civil Appeals indicated that if faced with the question before us it would rule as we have ruled.

Plaintiff presents other contentions for relief which are also without merit. They are overruled.

The judgments are affirmed.


author: VANCE, Judge.

text:
    Arthur N. ANDERSON, Jr., and Sue Anderson, his wife, Juanita A. McGee, single, Marjorie A. Johnson, single, Charles Thomas Anderson and Mrs. Charles Thomas Anderson, his wife, Appellants, v. Sara Steger ANDERSON, a widow, and Planters Bank and Trust Company, Executor of the Will of Arthur N. Anderson, Sr., Deceased, Appellees
    Court of Appeals of Kentucky.
    June 15, 1979.
    James G. Apple, Stites, McElwain & Fowler, Louisville, for appellants.
    Pollard White, White & White, Hopkins-ville, for appellees. ■
    Before HAYES, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

Arthur Anderson, Sr. married Sara Steger Anderson in 1957. Both had been married previously and Mr. Anderson had four children from his first marriage. In 1975, he transferred approximately $47,000.00 into bank accounts held in joint tenancy with his children. Mr. Anderson died testate in 1977 and Sara Anderson elected to renounce the will and take her statutory share of her husband’s estate. She then instituted this action in the circuit court seeking to have the $47,000.00 brought into the estate alleging that the transaction had defrauded her of marital rights. This appeal is prosecuted from the entry of summary judgment in her favor.

The appellants contend that the circuit court erred in finding that the transfer of funds into joint tenancies constituted a fraud on Sara’s dower rights. It is their position that the inter vivos transfers were made in good faith with no intent to defraud Sara. Appellants assert that Sara was aware of the transfers at the time they were made, and even announced that she would not spend any of her money in support of Arthur if he became ill, and thus he wanted to make the money available both to himself and his children during his lifetime should he need it for his maintenance.

Appellants cite several recent cases from other jurisdictions which hold that a person may dispose of his property during his lifetime in any manner he sees fit, even though such disposition decreases the statutory share available to his spouse, so long as the disposition was not solely for the purpose of defeating the spouse’s marital rights. See, for example, Windsor v. Leonard, 154 U.S.App.D.C. 348, 475 F.2d 932 (1973). These cases, however, do not reflect the law as it stands in the Commonwealth of Kentucky. In the ease of Martin v. Martin, 282 Ky. 411, 138 S.W.2d 509 (1940), the Court noted that the decided weight of authority was that an absolute gift of personalty made during a person’s lifetime was not a fraud upon the spouse’s marital right even if made for the purpose of depriving the spouse of the right of sharing in such property, but that as to real estate, it was well settled that a conveyance made to prevent a spouse from securing marital rights therein was ineffectual for that purpose. The Court continued, “In our state, however, we find that no distinction is made between real and personal property.” We are of the opinion that this Court is bound to follow the law of this Commonwealth as set out in the Martin decision:

After a careful consideration of this question we are convinced of the soundness of the rule established in our court by the cases mentioned. We reaffirm the conclusion reached in those cases, namely, that a man may not make a voluntary transfer of either his real or personal estate with the intent to prevent his wife, or intended wife, from sharing in such property at his death and that the wife, on the husband’s death, may assert her marital rights in such property in the hands of the donee. 282 Ky. at 422, 138 S.W.2d at 515.

Appellants insist that the transfers may be set aside only upon a showing that the motive for the transaction was to defeat Sara’s marital right to a statutory share in the property. We are convinced that such a motive must be inferred from circumstances of this case. Appellants admit that Arthur wanted the money to be available in case he needed it for his health and maintenance during his lifetime, and yet he apparently did not want the money to become a part of his estate which was subject to Sara’s marital rights. As stated in Benge v. Barnett, 309 Ky. 354, 217 S.W.2d 782 (1949):

There are two ways by which the intent and purpose of one in performing an act may be established, (1) express testimony as to the fact of intent; and (2) by the acts and deeds of the one whose intent is the subject of inquiry. Under the latter method we have but little trouble in determining the intention of the testator in this case to defraud his wife of her distributable share of one-half of his personal estate. 309 Ky. at 359, 217 S.W.2d at 784.

The will gave to appellee less than she would have taken under the statutes of descent and distribution, and this in itself evidences some intention to deprive the wife of property she had a statutory right to claim. In addition, the gift to the children of at least three-fourths of his personal estate had the effect of disinheriting his wife as to that property. A man is presumed to intend the natural consequences of his acts, and where the effect of his acts is to disinherit his wife from such a substantial portion of his estate as was the case here, it would be unreasonable to infer that the gift to the children was made without an intention to disinherit the wife. Where only one reasonable inference may be drawn from the undisputed facts, summary judgment is proper.

The judgment is affirmed.

All concur.


text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Dayle B. FORTNEY, City of Louisville, Division of Fire, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    June 15, 1979.
    Denis S. Kline, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellant.
    John Frith Stewart, Rex Dunn, Louisville, for appellee Dayle B. Fortney.
    Stuart E. Alexander, Asst. Director of Law, Louisville, for appellee City of Louisville.
    Before HAYES, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

Dayle B. Fortney is a major in the Division of Fire of the City of Louisville. His duties include going into burning buildings to ascertain the progress of a fire in order to decide upon and supervise a plan for combatting the blaze. On September 28, 1976, while inside a burning building, Fort-ney suffered severe pains radiating from his chest to his neck, ears and left arm. His condition was diagnosed as severe atheros-clerotic heart disease, and he subsequently underwent a coronary bypass operation for relief of his symptoms. Fortney filed a claim for disability benefits, and the Workmen’s Compensation Board determined that he was 30% occupationally disabled, apportioning the liability 15% to the employer and 15% to the Special Fund. The Special Fund appealed to the circuit court alleging that the Board erred in charging it with liability for any portion of the award. The circuit court upheld the decision of the Board and dismissed the Fund’s appeal.

Upon appeal to this Court, the Fund’s primary contention is that K.R.S. 342.120 limits the situations in which its liability arises to the following:

(l)(a) The employe is disabled, whether from a compensable injury, occupational disease, preexisting disease, or otherwise, and has received a subsequent compensa-ble injury by accident, or has developed an occupational disease;
(b) The employe is found to have a dormant nondisabling disease or condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury by accident or an occupational disease.

It is the Fund’s position that the incident of September 28, 1976 was not a subsequent injury or subsequent occupational disease as contemplated by the statute, but merely the time at which Fortney became aware of the dormant nondisabling condition. The Fund argues that in this situation, where there is no subsequent injury, there is no legitimate reason to relieve the employer of the responsibility for any of the liability.

We are of the opinion that the Fund is correct in asserting that the evidence contradicts the Board’s finding that Fort-ney sustained an “injury” on September 28, 1976. The medical testimony by several physicians indicates that the pain suffered by Fortney on that date caused no discernible damage to his heart, but rather acted as a “warning signal” of the then undetected atherosclerotic condition.

In Haycraft v. Corhart Refractories Company, Ky., 544 S.W.2d 222 (1976), the Court considered a similar problem with respect to a degenerative disc condition. There the Court noted that “although a particular affliction is of common occurrence among the population in general, it may nevertheless be found to be work-connected, hence compensable, when the nature of the victim’s occupation has increased the victim’s susceptibility to it.” 544 S.W.2d at 224. In the instant case, the physicians testified that studies have established that firefighters have an increased tendency to develop coronary atherosclerosis as compared with the general population. They were unable, however, to state what proportion of Fortney’s disability was ascribable to his occupation and what proportion may have developed because of other factors such as smoking. The Board likewise failed to make a finding as to the percentage of Fortney’s disability that was due to factors other than his occupation.

We believe that the holding in Haycraft provides the proper resolution of the issue raised in this case. The Court stated:

We are therefore of the opinion that if it be found, or should be found, that the nature and duration of the work probably aggravated a degenerative disc condition to the degree that it culminated in an active physical impairment sooner than would have been the case had the work been less strenuous, to that extent the pre-existing condition is itself an injury as now defined in KRS 342.620(1), and that compensation for a disability to which it has contributed should be apportioned between the employer and the Special Fund as follows: (1) to the Special Fund, that portion of the disability that probably would exist regardless of the work; (2) to the employer, the remainder, being the percentage attributable to the work. 544 S.W.2d at 225.

As the Board failed to make the findings necessary to the disposition of this issue, we conclude that the case must be remanded for a determination of the percentage of Fortney’s disability that is attributable to his employment and that which is the result of other factors.

The judgment of the circuit court is reversed with directions to remand the case to the Workmen’s Compensation Board for proceedings consistent with this opinion.


author: GANT, Judge.

text:
    William J. SMITH, Appellant, v. ALLIED TOOLS & SUPPLY COMPANY, INC., Appellee. ALLIED TOOLS & SUPPLY COMPANY, INC., Appellant, v. William J. SMITH, Special Fund, Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    June 15, 1979.
    John Frith Stewart, Rex Dunn, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for William J. Smith.
    James M. Graves, William P. Swain, Thomas H. Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Allied Tools and Supply Co., Inc.
    Before GANT, LESTER and REYNOLDS, JJ.
   GANT, Judge.

This is a consolidated appeal from an opinion and order of the Jefferson Circuit Court reversing an award of the Workmen’s Compensation Board, and remanding the case to the Board with instructions to reduce the liability of Allied Tools & Supply Company, Inc. (hereinafter referred to as Allied), from $51.75 per week to $26.40 per week. Also on appeal are two subsequent orders, one of which assessed 50% of the cost of the circuit court action against the claimant, William J. Smith, and 50% against the Special Fund, and the other requiring Allied to continue payment of benefits to Smith in the amount of $26.40 per week pending appeal.

On February 10, 1975, the claimant sustained a work-connected injury to his hip while employed by Allied. In October of that year Smith filed his claim alleging permanent occupational disability as a result of the injury. The Special Fund was joined as a party-defendant, pursuant to a motion by Allied, on the grounds that there could possibly be excess liability from the combined effects of a prior active disability and the subsequent injury. In October of 1976 the Board issued an opinion finding the claimant to be 100% occupationally disabled, of which 50% was noncompensable; 30% was the liability of the employer and the remaining 20% was assessed against the Special Fund. In addition to the above-mentioned orders, the circuit court on appeal held that the Special Fund was bound by the Board’s decision that it was liable for $34.50 per week since the Fund did not appeal from the Board’s Opinion and Award. On March 17, 1977, Smith filed a Notice of Appeal in the Circuit Court appealing from that portion of the order reducing Allied’s liability from $51.75 per week to $26.40 per week, and from that portion of the judgment assessing 50% of the costs against Smith. On March 31, 1977, Allied appealed from the order requiring that it continue to pay benefits to the claimant in accordance with the previous order. This Court subsequently consolidated the appeals into the one presently before us.

Allied submits that the circuit court does not have the authority under KRS 342.300 to direct the continuation of payment of benefits pending an appeal to the Court of Appeals unless there is a sufficient showing of reason and necessity in the circuit court for such a continuation. We agree. KRS 342.300 provides as follows:

Upon motion of either party and a sufficient showing of reason and necessity therefor, the circuit court to which an appeal is taken may continue in force the award, judgment, or order appealed from, pending its decision of such appeal, but to be suspended upon the execution by the adverse party of a supersedeas bond for appeal to the Court of Appeals.

We believe this section means that once a circuit court grants a motion for the continuation of benefits based upon a sufficient showing of reason and necessity therefor, then the benefits allowed pending the circuit court’s decision are to continue in force during the appeal to the Court of Appeals, unless the adverse party executes a supersedeas bond.

Smith urges that the 55-year-old-case of Employer’s Liability Assurance Corporation v. Gardner, 204 Ky. 216, 263 S.W. 743 (1924), dictates a contrary result. Therein the court held that the circuit court had the authority to continue the award pending the appeal notwithstanding the execution of a supersedeas bond, provided the proper showing was made. However, Section 55 of the Act (predecessor to KRS 342.300) as promulgated on March 23, 1916, and in effect at the time of the decision in Employer’s Liability Assurance Corporation, id., did not contain any reference as to the effects of a supersedeas bond on the continuation of benefits. It is worthy of note that Section 55 as originally written is the same as the first part of KRS 342.300 but that the section ended with the language “. pending its decision of such appeal.” It was not until March 29,1926, that the language referring to the execution of a supersedeas bond was added for the purpose of nullifying the effect of the decision handed down some two years earlier, and this statute has remained essentially the same since this amendment. A reading of the statute in its present form leads this Court to the conclusion that the execution of a supersedeas bond suspends the enforcement of an order requiring the continued payment of benefits.

Allied further contends that this statutory section requires a motion, accompanied by an affidavit, stating a sufficient reason and necessity for a continuation of payments. In the alternative, Allied contends that there was never any showing made before the circuit court in connection with the claimant’s' motion for a continuation of payments.

We believe the statute to be perfectly clear. It requires only “. . .a sufficient showing of reason and necessity . . ” for the continuation of payments and it is our opinion that such a showing does not have to be made by the submission of affidavits. The order recites that the lower court’s decision to continue payments was “. . . based on the record herein . . ” which revealed that the claimant was totally disabled, that he had been earning $300.00 per week prior to the accident, and that he had not had any income since the injury. We are of the opinion that this is sufficient to satisfy the requirements of KRS 342.300.

The method of computation used and the amount awarded by the Jefferson Circuit Court are in conformity with, the decision of Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277 (1978). The non-compensable portion of the award was properly excluded with a reduction in amount assessed against Allied Tools. We therefore affirm that portion of the award.

Since we conclude that the decision of the trial court was correct, we do not feel compelled to discuss the issue concerning costs below.

For the reasons stated above, the judgment of the lower court is affirmed.

All concur.


author: WELLIVER, Judge.

text:
    STATE of Missouri, Respondent, v. Thomas William LASLEY, Appellant.
    No. 60897.
    Supreme Court of Missouri, En Banc.
    June 27, 1979.
    Rehearing Denied July 17, 1979.

      Robert A. Cosentino, Asst. Public Defender, 21st Judicial Circuit, St. Louis County, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert Popper, Willard B. Bunch, David B. Dysart, Kansas City, Gerald M. Handley, Kansas City, for amicus curiae.
   WELLIVER, Judge.

Appellant was convicted of burglary, second degree and stealing, § 560.110, RSMo 1969, in the Circuit Court, County of St. Louis. He was sentenced to a prison term of eight years for the burglary and five years for the stealing offense, the two terms to run concurrently. By opinion filed June 13, 1978, the Missouri Court of Appeals, St. Louis District, Division I, reversed the judgment of conviction.

We ordered transfer to this court to determine the question of whether we should overrule the long-established precedent of requiring the giving of the circumstantial evidence instruction in certain criminal cases. We decide the case as though received on direct appeal. Mo.Const. art. V, § 10; Rule 83.09. In so doing, we utilize without quotation marks substantial portions of the opinion of the Court of Appeals. (McMillian, J.) We reverse the trial court.

On May 26, 1976, at 8:00 a. m., Mr. Ronald Danna left his home in Babler Woods Subdivision in west St. Louis County after securely locking the premises. At approximately 9:40 a. m., St. Louis County Police Detectives William Hines and Richard Wilhelm, conducting mobile surveillance of the Babler Woods area in unmarked police cars, noticed the appellant in a carryall van parked at Highway 109 and Babler Woods Drive. A dark blue Buick was also stopped at this point. The detectives saw appellant get out of the van, open the hood and stand to the side of the vehicle. Detective Wilhelm saw the driver and passenger of the Buick walk to where the appellant was standing, briefly engage him in conversation, and return to the Buick. The Buick then drove into Babler Woods Subdivision. Appellant stood by the van for three to five minutes “just kind of looking up and down the highway.” He then closed the hood and drove the van into Babler Woods Drive. About twenty minutes later, Detective Hines drove down Babler Woods Drive to see where the two vehicles had gone. As Detective Hines passed Mr. Dan-na’s house, which cannot be seen from the road, he saw the Buick and the van driving out of Mr. Danna’s driveway. He noticed that the driver of the Buick was wearing gloves. Detective Hines and Detective Wilhelm, in separate cars, followed the two vehicles out of the subdivision and down Highway 109 to the driveway to the house at 808 Pond Road, where both vehicles stopped and parked. The occupants of the Buick again approached the appellant and spoke to him. The Buick then pulled into the driveway and the van remained parked beside the roadway. The appellant raised the hood of the van and stood in front of it looking down the road. In the interim, Detective Hines radioed fellow Detective Stewart and instructed him to ascertain whether the Danna residence had been burglarized. When the two vehicles proceeded south on Pond Road, Detective Hines radioed for assistance from a marked police car to stop the vehicles for questioning. Patrolman Corless responded and with the aid of Detectives Hines and Wilhelm stopped the two vehicles. Both appellant and the driver of the Buick were asked to produce identification. Detective Wilhelm looked in the window of the van and saw a television antenna protruding from beneath a blanket. Meanwhile, Detective Stewart radioed Detective Hines and informed him that there had been a break-in at the Danna residence, the house had been “ransacked,” and a television appeared to have been taken. Detective Hines informed Wilhelm and Corless of the bréak-in, and they placed the appellant under arrest. The appellant was not arrested prior to Detective Stewart’s radio transmission. Police thereafter searched the appellant’s van and seized certain items, including a blanket and television, later identified by Mr. Danna as among goods taken from his house.

On appeal, appellant raises three points: that the trial court erred (1) in failing to give the “circumstantial evidence” instruction; (2) in failing to declare a mistrial after the prosecutor commented on the lack of a driver’s license in appellant’s possession at the time of his arrest; and (3) in failing to suppress the items seized from the appellant’s van on the ground that there was no reason to stop the appellant and search his vehicle.

We first consider the appellant’s argument that the trial court erred in not giving MAI-Cr 3.42, the “circumstantial evidence” instruction, which reads as follows:

Circumstantial evidence is the proof of facts or circumstances that give rise to a reasonable inference of other facts that tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the defendant guilty unless the facts and circumstances proved are consistent with each other and the guilt of the defendant, and inconsistent with any reasonable theory of his innocence.

The second paragraph of the instruction is variously referred to as a “reasonable hypothesis” or “multiple hypothesis” or “negative-exclusion” instruction.

The notes on the use of MAI-Cr 3.42 state that the trial judge is required to give the instruction if the evidence in a case is wholly circumstantial and the defendant properly requests the instruction under Rule 20.02. See State v. Hoskins, 515 S.W.2d 502, 503 (Mo.1974); State v. Regazzi, 379 S.W.2d 575, 579 (Mo.1974) (per cu-riam).

The respondent does not question' that settled Missouri law requires that (if properly requested) MAI-Cr 3.42 be given if the evidence in a case is wholly circumstantial. Instead, the respondent requests that this court abrogate MAI-Cr 3.42 and adopt the federal rule as stated in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), rehearing denied 348 U.S. 932, 75 S.Ct. 334, 99 L.Ed. 731.

In Holland, the defendants were convicted of income tax evasion under § 145 of the Internal Revenue Code. The defendants argued that since'the evidence was circumstantial, the trial judge should have given an instruction stating that where the government’s evidence is circumstantial it must exclude every reasonable hypothesis other than that of guilt. Mr. Justice Clark, speaking for a unanimous court, upheld the trial judge’s refusal to give a “reasonable hypothesis” instruction, stating that “the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.” 348 U.S. at 139-40, 75 S.Ct. at 137 (emphasis added). The trial judge in Holland had defined “reasonable doubt” as “the kind of doubt . . which you folks in the more serious and important affairs of your own lives might be willing to act upon.” Id. at 140, 75 S.Ct. at 138. While the Court indicated that “reasonable doubt” might better have been defined as the kind of doubt that would cause a person to hesitate to act rather than to be willing to act, the Court concluded that on the whole, the instruction correctly conveyed the meaning of the phrase.

Mr. Justice Clark required as a condition precedent to dispensing with the reasonable hypothesis instruction that the jury be properly instructed on the standards for reasonable doubt. It is this condition precedent which causes the problem for Missouri courts. The law in Missouri is well-settled that a judge may not comment upon the phrase “reasonable doubt” and the notes on the use of MAI-Cr 2.20 forbid a trial judge from giving any other instruction that elaborates on, or attempts to define, “reasonable doubt.” State v. Amerson, 518 S.W.2d 29, 32 (Mo.1975); State v. Taylor, 486 S.W.2d 239, 244 (Mo.1972); State v. Lafferty, 416 S.W.2d 157, 161 (Mo.1967).

Respondent seeks to harmonize the requirement of Holland and existing Missouri law. Respondent’s Supplemental Brief at 11 states that “the overwhelming majority of jurisdictions when confronted with the issue [whether the reasonable hypothesis instruction should be abrogated] have decided to excise the ‘reasonable hypothesis’ instruction.” Unlike Missouri, most of the jurisdictions cited by respondent permit jury instructions to define the phrase “reasonable doubt.” Most of the cases from other jurisdictions cited by the respondent indicate that some sort of elaboration on the phrase “reasonable doubt” was made at the trial level, and hedge the abrogation of the circumstantial evidence instruction with the qualification that it is not needed where the jury is adequately instructed on the standards for reasonable doubt. State v. Gosby, 85 Wash.2d 758, 539 P.2d 680, 684, 686 (banc 1975); State v. Jackson, 331 A.2d 361, 365 (Me.1975); State v. Draves, 18 Or.App. 248, 524 P.2d 1225, 1227 n. 1 (1974); State v. Wilkins, 215 Kan. 145, 523 P.2d 728, 735 (1974); Murray v. State, 249 Ark. 887, 462 S.W.2d 438, 442-43 (1971); State v. Harvill, 106 Ariz. 386, 476 P.2d 841, 846 (banc 1970); Allen v. State, 420 P.2d 465, 468 (Alaska 1966). See also Henry v. State, 298 A.2d 327, 330 (Del.1972); Vincze v. State, 86 Nev. 546, 472 P.2d 936, 938 (1970); State v. Fiorello, 36 N.J. 80, 88 n. 1, 174 A.2d 900, 904 n. 1 (1961), cert. denied 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962). The majority of states currently use a circumstantial evidence instruction, including twelve jurisdictions in which, within the last decade, the state supreme court has reaffirmed its use. State v. Graven, 54 Ohio St.2d 114, 374 N.E.2d 1370, 1373 (1978); State v. Shank, 88 S.D. 645, 226 N.W.2d 384, 386 (1975); State v. Langston, 265 S.C. 74, 216 S.E.2d 875, 876 (1975); State v. Goodrick, 95 Idaho 773, 519 P.2d 958, 961 (1974); State v. Bratcher, 206 S.E.2d 408, 410 (W.Va.1974); Bunch v. State, 499 S.W.2d 1, 3 (Tenn.1973); Zdiarstek v. State, 53 Wis.2d 420, 192 N.W.2d 833, 837 (1972); State v. Champagne, 198 N.W.2d 218, 229 (N.D.1972); Johnson v. State, 258 Ind. 683, 284 N.E.2d 517, 519 (1972); State v. Anderson, 270 So.2d 353, 357 (Fla.1972); State v. Lemieux, 160 Conn. 519, 280 A.2d 874, 875 (1971); Barrett v. State, 253 So.2d 806, 809 (Miss.1971).

Respondent relies heavily on the case of Blakely v. State, 542 P.2d 857 (Wyo.1975). In Blakely, the appellant was charged with feloniously misbranding livestock and was found guilty by a jury. The conviction was based entirely upon circumstantial evidence. The defendant alleged that the trial court erred in refusing to add the phrase “to the exclusion of all others” to the cautionary instruction on circumstantial evidence. The instruction that was given to the jury read as follows:

In this case the State is relying solely on circumstantial evidence and you are instructed it is a well-established rule of law that, where circumstantial evidence alone is relied upon, the circumstances when considered together must point clearly and conclusively to the guilt of Howard Blakely and exclude every reasonable hypothesis other than that of guilt.

Id. at 861. The Wyoming Supreme Court stated that the circumstantial evidence instruction given by the trial court was consistent with prior Wyoming Supreme Court decisions. The court then overruled the prior Wyoming decisions that required the reasonable hypothesis instruction in cases involving circumstantial evidence, criticizing the instruction as “wishy-washy, misleading and constantly raising questions.” Id. at 862.

We are not persuaded by the approach adopted in Blakely. The Wyoming Supreme Court ignored the suggestion in Holland, also present in the cases from other jurisdictions adopting the rule in Holland, that it is only appropriate to dispense with the reasonable hypothesis instruction in a case involving circumstantial evidence “where the jury is properly instructed on the standards for reasonable doubt.” 348 U.S. at 139, 75 S.Ct. at 137. Where no instruction on the standards for reasonable doubt is permitted, we do not think that it is appropriate to leave the jury without the guidance of a reasonable hypothesis instruction.

Respondent contends that MAI-Cr 3.42 tends to relegate circumstantial evidence to an inferior status by distinguishing direct evidence from circumstantial evidence. This contention fundamentally misconstrues the purpose and function of MAI-Cr 3.42. We acknowledge, and it is now generally recognized, that circumstantial evidence is not inherently of less probative value than direct evidence. To say the two types of evidence are equal in weight, however, is not to say that they are equal in all respects. The distinction between the two types of evidence remains useful. This court has defined direct evidence as “ ‘evidence which if believed proves the existence of the fact in issue without, inference or presumption; while circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.’ ” State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43 (1948). The distinction is not cast in terms of the weight to be accorded each type of evidence, but in terms of the pattern of logical inference which must be employed in reasoning from circumstantial evidence. We think this difference warrants the continued use of MAI-Cr 3.42. Because circumstantial evidence requires jurors to use an inferential process to determine an ultimate fact, it is appropriate to caution them to make certain that their inferences are reasonable, consistent with the guilt of the defendant and inconsistent with any reasonable theory of his innocence.

In reasoning from circumstantial evidence to the existence of a fact in issue, a juror is called upon to supply a missing premise from his own experience. In the instant case, for example, the jury is asked to infer, from the facts that a house was burglarized on the morning of May 26,1976, that the appellant was seen in the driveway of the house that same morning and that shortly afterward the appellant was driving a van in which items taken from the house were found, the conclusion that the appellant himself committed burglary. The jurors must supply from their own experience the major premise of the syllogism: “If a person is found in the vicinity of a burglarized house near the time of the burglary and in possession of items taken in the burglary, then that person- has committed burglary.” The prosecution is not required to produce empirical studies demonstrating the reliability of such a generalization. The only protection a criminal defendant has against inferences drawn from a doubtful major premise is the assurance that the jury will subject the suppressed premise to the reasonable doubt standard of proof. Our requirement that an inference of guilt be inconsistent with any reasonable theory of innocence forces the jury to subject the major premise used in drawing the inference to the same reasonable doubt scrutiny to which it subjects all the other evidence presented at trial. We think that the additional guidance offered a jury by MAI-Cr 3.42 is necessary to protect a defendant from juror speculation. This instruction does not conflict with MAI-Cr 2.20, because it does not attempt to define the reasonable doubt standard. Neither does the instruction invoke a different or higher standard of proof for circumstantial evidence than for direct evidence. It merely instructs the jury to apply the reasonable doubt standard to each phase of the inferential process involved in drawing conclusions from circumstantial evidence. Far from being inconsistent with the rule forbidding the futile attempt to define “reasonable doubt,” the circumstantial evidence instruction is needed precisely because Missouri practice forbids defining reasonable doubt. The failure to give MAI-Cr 3.42 in this case constituted error. It remains to determine whether this error was prejudicial to the appellant. Rule 22.02(e).

Respondent contends that the trial court’s refusal to give MAI-Cr 3.42 in this case was “harmless error,” on the ground that the evidence of appellant’s guilt was overwhelming and that the language of MAI-Cr 3.42 itself implies that it would have been of no assistance to appellant. Respondent notes that MAI-Cr 3.42 tells the jury that they should not find the defendant guilty unless the facts and circumstances proved are consistent with each other and the guilt of the defendant and inconsistent with any theory of innocence. Respondent contends that since the appellant did not offer any theory of innocence, indeed presented no evidence in his own behalf, the failure to give MAI-Cr 3.42 could not have prejudiced the appellant. This ingenious argument puts the burden of interposing a theory of innocence on the defendant in a criminal case. Respondent’s argument overlooks the fact that the instruction refers to “any reasonable theory” of innocence, and does not confine a jury to only those theories of innocence which the defendant might advance at trial. Whether or not a defendant introduces a theory of innocence at trial does not determine the prejudicial effect of the erroneous refusal to give MAI-Cr 3.42. “[A]ny such error must be deemed prejudicial unless the contrary clearly appears.” State v. Boyington, 544 S.W.2d 300, 304 (Mo.App.1976); State v. Billingsley, 534 S.W.2d 484, 485 (Mo.App.1975). It is not clear that the refusal of the trial court to give MAI-Cr 3.42 in this case was not prejudicial.

The instant case does not involve a minor deviation from MAI. The appellant offered no evidence of his own. His hope for acquittal rested entirely on the hope that the jury would not believe that the circumstantial evidence presented against him demonstrated that he was guilty. Here, unlike Boyington, there was no instruction to accomplish the purpose of the refused instruction, The refusal to give MAI-Cr 3.42 in this case was prejudicial to the appellant, and his conviction must therefore be reversed.

The second issue raised is whether the court erred in failing to declare a mistrial after the prosecutor commented, during his opening statement, that appellant had no driver’s license in his possession at the time of arrest. The appellant’s attorney raised objection to this statement on the ground that it referred to another separate and unrelated crime. The appellant’s objection was sustained; however, his motion for mistrial was denied. It is well-settled in Missouri that proof of the commission of a separate and distinct crime by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant’s guilt of the charge for which he is on trial. State v. Carter, 475 S.W.2d 85, 88-89 (Mo.1972); State v. Reed, 447 S.W.2d 533, 534 (Mo.1969) (per curiam); State v. Selle, 367 S.W.2d 522, 529 (Mo.1963) (per curiam); State v. Shilkett, 356 Mo. 1081, 1086, 204 S.W.2d 920, 922-23 (1947) (per curiam). While it is not a crime in Missouri to fail to produce one’s driver’s license upon demand of a police officer, such failure is presumptive evidence that one is not duly licensed. State v. Campbell, 564 S.W.2d 867, 869 (Mo. banc 1978). Because this case is reversed on other grounds and must be retried, and the trial court will have an opportunity to rule on this question should it resurface, we find it unnecessary to make a further ruling at this time.

The third point raised by appellant involves the validity of the search made subsequent to appellant’s arrest. Appellant urges that the search of his carryall van was illegal because the police did not have the reasonable suspicion required to validate the investigatory stop of the appellant. We do not agree with appellant’s argument.

Where police officers entertain a reasonable suspicion that criminal activity may be afoot, they may stop the suspected person, identify themselves as police officers, require the suspect to identify himself, and make reasonable inquiries concerning his activities. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Rankin, 477 S.W.2d 72, 75 (Mo.1972) (per curiam); State v. Johnson, 566 S.W.2d 510, 513 (Mo.App.1978). The United States Supreme Court has found that the “reasonable suspicion” that entitles an officer to stop an individual is present when the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. See also United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

Applying these principles to the presented facts, we find that the police had “reasonable suspicion” to stop the appellant. The police saw the appellant’s van and a Buick stop at an intersection in west St. Louis County and saw the appellant confer with the occupants of the Buick and open the hood of his van. They saw the Buick drive into a fashionable subdivision and shortly thereafter they saw appellant close the hood and proceed in the same direction. Twenty minutes later, they saw the appellant’s van and the other vehicle pull out of the driveway to a house that cannot be seen from the road. They saw that the driver of the Buick was wearing gloves, though it was late in May. They saw both vehicles proceed to another location where the Buick again entered the driveway at a private residence and the appellant raised the hood on his van and remained beside the roadway. These facts are sufficient to justify the police in stopping the appellant. The officers were aware of specific articulable facts that, together with rational inferences drawn therefrom, led them to suspect that criminal activity was afoot. The “reasonable suspicion” which is needed to justify an investigation stop need not rise to the level of probable cause to arrest. It is not necessary that the articulable facts and rational inferences on which the officer acts exclude every possible interpretation other than criminal activity. The standard is whether the facts available to the officer at the moment of the seizure warrant a person of reasonable caution in the belief that the action taken was appropriate. Terry, 392 U.S. at 21-22, 88 S.Ct. 1868.

Apart from the propriety of the initial stop, after the radio transmission was received from Detective Stewart, the police did possess the requisite probable cause to arrest the appellant and make subsequent search of his vehicle. At that point, police could relate the appellant circumstantially to the commission of a crime by placing the appellant in the driveway of a house which had just been burglarized. Reasonable grounds for the arrest and search were present. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 161—62, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Smith, 462 S.W.2d 425, 426 (Mo.1970) (per curiam).

Our holding is not inconsistent with State v. Hicks, 515 S.W.2d 518 (Mo.1974) (per curiam) and State v. Goodman, 449 S.W.2d 656 (Mo.1970), cited by appellant. In those cases it was held that a search incident to an arrest made without probable cause to believe a crime has been committed or that the person arrested committed the crime violated the defendant’s right against unreasonable seizure. The instant case is distinguishable in that the police acquired reasonable grounds to arrest appellant before making the arrest.

For the reasons discussed herein, the cause is reversed and remanded for a new trial consistent with this opinion.

All concur.

      . MAI-Cr. 3.42.

      . We note that the customary practice in federal courts is to submit a definition of reasonable doubt in instructions to the jury in a criminal trial:
      It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
      1 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 11.14 (3rd Ed. 1977). See, e. g., United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975), cert. denied 424 U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976).

      . For a discussion of this aspect of Holland, see Note, Abrogating the Cautionary Instruction in Criminal Prosecutions Relying Substantially on Circumstantial Evidence, 11 Land and Water L.Rev. 623, 628-32 (1976).

      . One of the most incisive analyses of the similarity in probative value of direct and circumstantial evidence is found in Ex Parte Jefferies, 7 Okl.Cr. 544, 124 P. 924, 924-25 (1912). In that case, the Honorable Judge Furman argues that even the most direct evidence relies on circumstances for its credibility, weight and effect. For example, if the witness testifies: “I saw A shoot B,” in fact the witness can only swear to seeing A point a gun at B, seeing a flash and hearing a report, and seeing B fall to the ground with a bullet wound. J. Furman argues that only past experiences, i. e., circumstances, prove that A fired the gun. This analysis does not erode the distinction that we have drawn. For in such a ease, the jury is instructed to weigh the credibility of the witness against the reasonable doubt standard for inferring from his observations that A shot B. But if the witness testifies only “I saw A point a gun at B, then saw a flash and heard a report, and saw B fall to the ground with a bullet wound,” it remains for the jury to draw the inference that A shot B. If the jury is not instructed that each proposition in the syllogism used to draw the inference survives reasonable doubt scrutiny, then the defendant has less protection against speculation in the case based on circumstantial evidence than he does in the case based on direct evidence. Numerous cases infer from the fact that circumstantial evidence is equal in weight to direct evidence that the reasonable hypothesis instruction is not needed. For the reasons discussed, we have concluded that such an inference is unwarranted. At least one other jurisdiction requires a reasonable hypothesis instruction while acknowledging that the difference between direct and circumstantial evidence is not a difference in probative force. State v. Murphy, 113 R.I. 565, 323 A.2d 561, 565 (1974).

      . The governmental interest in effective crime prevention and detention “underlie the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” Terry, 392 U.S. at 22, 88 S.Ct. at 1880.