author: , JAMES, Justice. HALL, Justice

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. Aline BRUNER, Appellee.
    No. 5487.
    Court of Civil Appeals of Texas, Waco.
    Nov. 20, 1975.
    Rehearing Denied Dec. 11, 1975.

      Ñaman, Howell, Smith & Chase, Louis S. Muldrow, Waco, for appellant.
    Sleeper, Williams, Johnston, Helm & Estes, Minor L. Helm, Jr., Waco, for appel-lee.
   OPINION

, JAMES, Justice.

This is a venue case. The Plaintiff slipped upon a green onion stalk and fell in the Defendant’s store. She brought this suit in McLennan County, where the store is located, for her damages. The Defendant’s controverted plea of privilege to be sued in Nueces County, the asserted county of its residence, was overruled. It appeals. The single question we must decide is whether the evidence is legally sufficient to support the finding implied in the judgment that the onion stalk had been on the floor of the store for such length of time that by the exercise of ordinary care the Defendant should have discovered and removed it. We hold the evidence is legally sufficient and affirm the trial court’s judgment.

Plaintiff-Appellee Mrs. Bruner, a 64 year old woman, went into the Defendant store at or about 4 PM on Saturday afternoon, May 5, 1973. There were “not too many” customers in the store at the time. She picked up a few vegetables and went through a checking counter, took “two or three” steps from the checking counter to her right, at which time she stepped on an “onion top” on the floor, and thereupon fell, causing the alleged personal injuries sued for. There were a number of checkout stands in a line in the front portion of the store. There was a space of about ten feet between the line of checkout stands and the front wall of the store, in which portion of the store Plaintiff slipped and fell.

Plaintiff was checked out at the second checkout stand from the left end, as you look from the front of the store to the rear. The checkout stand through which she passed was manned by two people, one being a checkout clerk and the other a “sack-er.” There were a number of the other checkout stands open and operating at the time in question, each likewise being manned by a checkout clerk and a sacking clerk.

Plaintiff’s head struck the floor in the fall and she was knocked unconscious, after which she would alternately regain consciousness and then relapse into unconsciousness. When she fell, she heard one of the male employees say, “Get her up quick.” Then two of the male employees picked her up. Then one of the boys, seeing the onion top Plaintiff had stepped on, said to the other, “Get rid of that thing.” The onion top was “long and juicy,” looking like it had been “stepped on and mashed.” Then one of the female checking employees came over and asked Plaintiff, “Do you need me to help you outside?” Plaintiff replied, “I don’t think so.”

One of the boys asked the other “where the manager was” to which the other boy said, “He’s gone out the back door to check a truck.”

Plaintiff did not see “anybody with a broom or anybody with a mop and bucket or anything like that” anywhere around in the process of cleaning up the floor, at or before her fall.

The issue of whether or not a given act or omission constitutes negligence is essentially a fact question. The facts of each case must be given independent consideration, and seldom are the facts of any two cases so identical as that the decision in one could be held to be authority for a like decision in the other. Blanks v. Southland Hotel (1950), 149 Tex. 139, 229 S.W.2d 357.

In the case at bar, the trial court as trier of fact had the right under this record to consider all the surrounding facts and circumstances presented, including the size and arrangement of the store, the volume of customers in the store at the time in question, the frequency with which the area of the store was used in which Plaintiff slipped and fell, the number and proximity of Defendant’s employees in the vicinity of the accident, at and immediately prior to the accident, the act of the employees in getting rid of the onion top so that it would not be available to Plaintiff as evidence, the fact that no employee of Defendant was cleaning up the floor at any time material to this incident, the fact that the store manager was not around at the time and place of the accident, as well as any and all other facts presented. See R. E. Cox Dry Goods Co. v. Kellog (Waco Tex.Civ.App.1940), 145 S.W.2d 675, writ refused; H. E. Butt Grocery Co. v. Johnson (San Antonio Tex.Civ.App.1949), 226 S.W.2d 501, error refused NRE; S. H. Kress & Co. v. Selph (Beaumont Tex.Civ.App.1952), 250 S.W.2d 883, error refused NRE.

Among the above-stated facts and circumstances surrounding this accident, it is significant that the Defendant’s employees deliberately “got rid” of the onion stalk upon which Mrs. Bruner slipped and fell. Mrs. Bruner testified that the stalk was “long and juicy,” and looked like it had been “stepped on and mashed.” The onion stalk was last known to have been in possession of Defendant’s employees, was not produced in court, nor did Defendant offer any explanation for the intentional and deliberate spoliation of this vital piece of evidence. Since the onion stalk was described by Plaintiff as “long and juicy,” and looked like it had been “stepped on and mashed,” the question naturally arises: was it stepped on and mashed only by Plaintiff (in which event it may have been on the floor a very short time) or was it stepped on and mashed by one or more people in addition to Plaintiff (in which event it may well have been on the floor for a sufficient period of time in which Defendant by the exercise of ordinary diligence should have discovered and removed it)?

Had the onion stalk been available as evidence and produced in court, this question might have been answered. Since the onion stalk was “gotten rid of” by Defendant, with no explanations given therefor by Defendant, certain rules of law come into play:

Failure to produce evidence within a party’s control raises the presumption that if produced it would operate against him, and every intendment will be in favor of the opposite party. The force of evidence is greatly increased by the failure of the opposite party to rebut it, where it is obvious that the means are readily accessible to him. Galveston, H. & S. A. Ry. v. Young (1907), 45 Tex.Civ.App., 100 S.W. 993, writ refused; Lindsey v. State (Eastland Tex.Civ.App.1946), 194 S.W.2d 413, error refused NRE; King Construction Co. v. Flores (Houston Tex.Civ.App. 1st 1962), 359 S.W.2d 919, error refused NRE; Fain v. Beaver (Waco Tex.Civ.App.1972), 478 S.W.2d 816, error refused NRE.

Our Supreme Court states the rule in this way: Where a party is in possession of evidence and does not testify, the trial court is authorized to take such failure to testify into consideration “not only as strengthening the probative force of the testimony offered to establish the issue, but (such failure) is of itself clothed with some probative force.” State v. Gray (1943), 141 Tex. 604, 175 S.W.2d 224. Likewise, the following authorities stand for the proposition that such failure of a party to testify or to produce evidence creates a presumption unfavorable to such party which of itself has probative force: English Freight Co. v. Knox (Austin Tex.Civ.App.1944), 180 S.W.2d 633, error refused W.M.; Union Transports Inc. v. Braun (Eastland Tex.Civ.App.1958), 318 S.W.2d 927, no writ history; De Muth v. Head (Dallas Tex.Civ.App.1964), 378 S.W.2d 389, error refused NRE. Such a presumption is not evidence, but rather a rule of procedure or an “administrative assumption” which “vanishes” or is “put to flight” when positive evidence is introduced. It is not evidence and when met by rebutting proof it is not to be weighed or treated as evidence by the trier of fact. Empire Gas & Fuel Co. v. Muegge (1940), 135 Tex. 520, 143 S.W.2d 763, opinion adopted. Such a presumption when unrebutted, as in the case at bar, may fully establish a fact in issue, not as evidence, but as an artificial legal equivalent of the evidence otherwise necessary to do so. Strain v. Martin (Eastland Tex.Civ.App.1944), 183 S.W.2d 246, no writ history; 23 Tex.Jur.2d, “Evidence”, par. 66, pp. 104, 105.

A kindred rule to the foregoing, applicable to the case at bar, is that the intentional spoliation or destruction of evidence relevant to a case raises a presumption that the evidence would have been unfavorable to the cause of the spoliator. McCormick and Ray, Texas Evidence (Second Edition), Yol. 1, Section 103, pp. 141, 142. The deliberate destruction of evidence gives rise to the presumption that the matter destroyed is not favorable to the spoliator, and it has been held that where a deed is shown to have been intentionally destroyed, the party relying on it was required to rebut all inferences of fraudulent intent or purpose before secondary evidence was admissible. Massie v. Hutcheson (1925), 110 Tex. 558, 270 S.W. 544, opinion adopted.

Applying the foregoing rules to the case at bar, the following conclusions are in our opinion inescapable:

The intentional spoliation and destruction of the onion stalk created the presumption that its introduction into evidence would have been unfavorable to Defendant, that is to say, that it would have shown that it was sufficiently “stepped on and mashed” as to lead to the conclusion that it had lain on the floor for a sufficient period of time that the Defendant should have, by the exercise of reasonable diligence, discovered and removed it. Since this presumption was not rebutted by the Defendant, the trial court was authorized to take such presumption into consideration, not only as strengthening the testimony offered by Plaintiff, but also he was authorized to consider that such presumption in and of itself had probative value. This presumption, when taken together with all the other facts and circumstances presented by Plaintiff’s testimony as hereinabove outlined, was legally sufficient to support the trial court’s implied finding that the onion stalk had been on the floor of Defendant’s store for such length of time that by the exercise of ordinary care the Defendant should have discovered and removed it.

Finally, our Supreme Court has held: “On appeal from an order overruling a plea of privilege, every reasonable intendment must be resolved in favor of the trial court’s judgment.” James v. Drye (1959), 159 Tex. 321, 320 S.W.2d 319.

For all of the above reasons we affirm the trial court’s judgment.

HALL, Justice

(dissenting).

I respectfully dissent.

The plaintiff’s testimony in full regarding the nature and appearance of the object she slipped on is as follows:

“Q. Now, do you know for sure of your own personal knowledge what you stepped on?
“A. I couldn’t swear to it, but it looked like ... It was about that long and juicy. (Indicating). And I can’t think of anything that looked like that except a green onion top.
“Q. What color was it?
“A. Green.
“Q. Okay. And you’ve seen onion tops many times?
“A. Well, I’ve topped a-many of them, I know.
“Q. Okay. And what you saw, was there just one individual onion stalk?
“A. It was.
“Q. In other words, like you had taken an onion and cut off one little green leafy stalk from the top of it?
“A. It was a full grown one.
“Q. Okay. And how long would you say it was?
“A. About that long. (Indicating).
“Q. All right. You’re indicating what? About seven inches?
“A. (By plaintiff’s attorney) Seven or eight inches.
“Q. Okay. Did you see this, if it was an onion top, did you see it before you fell?
“A. No.
“Q. Okay. Did you ever, yourself, pick up or examine what looked to you like it was an onion top?
“A. The thing I slipped on?
“Q. Yes.
“A. Well, I didn’t have a chance.
“Q. Okay. So, you did not pick it up and look at it closely?
“A. No, sir. I didn’t.
“Q. Can you describe its appearance to me other than being, as you said, green and about seven or eight inches long and looking like a single onion stalk?
“A. Well, it was just like anybody stepped on it and mashed it, and the juice was out of it.
“Q. Okay. It appeared as though it had been stepped on?
“A. It had been.
“Q. Okay. Because you had stepped on it?
“A. I certainly did.
“Q. Okay. Did you have anything on your shoes or your clothing that you either then or later examined or inspected, and from which you could determine what it was that you had stepped on?
“A. No.
“Q. Okay. Do you, of your own personal knowledge, know or do you have any way of knowing how long it had been on the floor before you stepped on it?
“A. No, sir. I sure don’t.
“Q. Okay. And do you know or do you have any way of determining who may have dropped the onion stalk onto the floor?
“A. No, sir. I wouldn’t know that either.
“Q. Okay. Was there anything about the appearance of the onion top in the very brief period of time that you saw it, that could in any way tell you how long it had been on the floor?
“A. It couldn’t have been there too long or it would have been wilted looking.
“Q. Okay. And it was not?
“A. It was not.
“Q. Okay. Did you see any marks or anything on the floor that would indicate to you that it had been stepped on more than once or anything like that?
“A. Mister, I wasn’t looking for any marks. I was blacking out and coming to and blacking out again all that time. Now, I don’t know about that.
“Q. All right. So, I am assuming that you did not see anything like that on the floor?
“A. No, sir. I don’t remember anything.”

Clearly, this testimony cannot spawn the inference asserted by the majority that the stalk had been stepped on by others in the store before the plaintiff did so. But granted the inference arguendo, it does not establish any length of time — long, short, or momentary — the stalk was on the floor before the plaintiff’s fall. See, H. E. Butt Grocery Company v. Russell (Tex.Civ.App.—Waco, 1965, writ ref.), 391 S.W.2d 571, discussed infra. It does not, therefore, support the implied finding that the stalk was on the floor long enough to charge the defendant with constructive notice of its presence there. This finding is vital to the order in question.

The majority cites the testimony showing the area in the store where the fall occurred, the volume of customers in the store (shown only to be “not too many”), together with the showing of several employees in close proximity to the place of the accident at the time, and other recited circumstances, as supporting the finding, citing R. E. Cox Dry Goods Co. v. Kellog (Tex.Civ.App.—Waco, 1940, writ ref.), 145 S.W.2d 675; H. E. Butt Grocery Co. v. Johnson (Tex.Civ.App.—San Antonio, 1949, writ ref., n. r. e.), 226 S.W.2d 501; and S. H. Kress & Co. v. Selph (Tex.Civ.App.—Beaumont, 1952, writ ref., n. r. e.), 250 S.W.2d 883. While these facts, if connected with a showing of but a short period of time the stalk lay on the floor might be sufficient to support a finding that the defendant’s employees should have discovered and removed it, they are not proof of that critical period of time. They do not support the questioned finding. Insofar as they show, or the record as a whole shows, the stalk could have been dropped on the floor only moments before the plaintiff stepped on it.

In R. E. Cox Dry Goods Co. v. Kellog, supra, the plaintiff stumbled and fell over a salesman’s sample case, 14 inches high, 8 inches wide, and 30 inches long, in a narrow aisle provided for customers, which the evidence shows had been in the aisle along with other sample cases “for the whole of the hour prior to the accident.” In H. E. Butt Grocery Co. v. Johnson, supra, the plaintiff slipped and fell in a wet place in front of a large ice box containing bottles of soft drinks, located near a busy exit of the store. The wet area was “about as big as the box,” contained broken pieces of a bottle, was “dusty, grimy, and muddy.” Upon learning of the accident, the store manager said, “I thought that had been taken care of.” In S. H. Kress & Co. v. Selph, supra, the plaintiff slipped and fell on a piece of candy. She testified that the candy “looked like it had been there for several days,” that it “had been mashed and swept over,” and that it “had the marks of a broom over it.” These cases are clearly distinguishable on their facts from our case. Each contains proof of a time span during which the defendant, if exercising ordinary care, would have discovered the foreign substance.

Our facts, on the question of how long the stalk was on the floor, are more like the facts in the cases of H. E. Butt Grocery Company v. Russell (Tex.Civ.App.—Waco, 1965, writ ref.), 391 S.W.2d 571, and Sherwood v. Medical & Surgical Group, Inc. (Tex.Civ.App.—Waco, 1960, writ ref.), 334 S.W.2d 520. In Russell, the plaintiff slipped on a lettuce leaf. The opinion recites these as the salient facts: “Defendant’s store manager testified he did not instruct any employees to inspect the area where plaintiff testified she slipped between 5:00 P.M. and 6:00 P.M., ‘a busy time.’ Plaintiff’s fall was near the checkout counter as she started with her purchases to the front door where there was heavy customer traffic, she testified. The piece of lettuce was larger than her hand. Her testimony was that she did not know how long it had been there, but it had dark spots and ‘had been stepped on by somebody else’s heel because it was mashed, you know, bruised on the other side.’ She did not see it before she stepped on it.” This court reversed a judgment on a verdict for the plaintiff and rendered judgment for the defendant, holding: “These circumstances did not raise an inference that the lettuce leaf had been on the floor for a sufficient time to impose constructive knowledge of its presence upon defendant. They are equally consistent with an inference the leaf had been dropped and stepped on a few seconds, or at any other arbitrary and unknown period of time before plaintiff slipped.” In Sherwood, the plaintiff “stepped in something real slippery” and fell about two feet from the receptionist’s desk as she walked through the reception hall in the defendant’s offices. She testified that after receiving attention from doctors, she came back to the place where she had fallen and noticed “smudge spots and smear spots, this way and that way. You could see where my foot had slid through this stuff on the floor. It was loose. What I would call it — it was either a floor dressing of some kind — it wasn’t buffed down or polished good.” After she got home she noticed there was a dry, “sparkly” substance around a hole in her hose at the knee. The same substance was smeared on her hand, arm, knee and cheek. It was later identified as being floor wax or floor polish. Affirming an instructed verdict, this court held the evidence did not show how long the slippery substance had been on the floor. See also, Swan v. Kroger Company (Tex.Civ.App.—Beaumont, 1970, writ ref., n. r. e.), 452 S.W.2d 793; Green v. J. Weingarten, Inc. (Tex.Civ.App.—Eastland, 1965, no writ hist.), 398 S.W.2d 447; Great Atlantic Pacific Tea Company v. Giles (Tex.Civ.App.—Dallas, 1962, writ ref., n. r. e.), 354 S.W.2d 410; O’Neal v. J. Weingarten, Inc. (Tex.Civ.App.—Beaumont, 1959, writ ref., n. r. e.), 328 S.W.2d 793.

These cases, and many others, are simply restatements of the fundamental law of this State that a storekeeper is not an insurer of the safety of his invited guests, and that the mere presence of some foreign substance on the floor is insufficient to warrant an inference that it had been there long enough to enable the storekeeper to discover and correct or remove it by the exercise of ordinary care. See, J. Weingarten, Inc., v. Razey (Tex.Sup., 1968), 426 S.W.2d 538, 539; Monfort v. West Texas Hotel Co. (Tex.Civ.App.— El Paso, 1938, writ ref.), 117 S.W.2d 811, 813; Dill v. Holt’s Sporting Goods Store (Tex.Civ.App.—Hou. 1st, 1959, no writ hist.), 323 S.W.2d 644, 649; Great Atlantic & Pacific Tea Company v. Giles, supra, at 354 S.W.2d 414.

Finally, the majority’s reliance upon the presumptions raised by the defendant’s destruction of evidence and its failure to come forward with proof is, in my opinion, misplaced.

The willful suppression or destruction of relevant evidence by a party, or his failure to produce relevant evidence which he could have produced, can, under proper circumstances, raise presumptions that the evidence, if available or if offered, would have been unfavorable to him and would not have supported his contentions. 1 McCormick & Ray 135, Texas Law Of Evidence (2nd ed., 1956), §§ 100, 103; Missouri Pac. R. Co. v. Sparks (Tex.Civ.App.—Hou. 14th, 1968, writ ref., n. r. e.), 424 S.W.2d 12, 17. Presumptions of this nature not only strengthen the probative force of the adverse party’s proof on the issue to which they relate, but are of themselves clothed with some probative force thereon. State v. Gray, 141 Tex. 604, 175 S.W.2d 224, 226 (1943). But these presumptions have no application until the party to whose benefit they would accrue has established a prima facie case. They do not, per se, establish vital elements of his case. This is not only the Texas rule, it is universal. Turner v. Texas Company, 138 Tex. 380, 159 S.W.2d 112, 117 (1942); 1 McCormick & Ray, supra, pp. 137-38; 31A C.J.S. Evidence § 153, pp. 388-90; 29 Am.Jur.2d 220-21, Evidence, § 177. It is set forth by our Supreme Court in the Turner case as follows:

“The fact that the record contains no evidence tending to prove that Hagan was the driver of the automobile that struck plaintiff’s truck or that he was present at or near the place of the collision fully answers the contention that plaintiff’s case can be aided by the failure of the defendants to produce Hagan’s testimony. But even if it were assumed that Hagan was the driver of the automobile, a presumption that his testimony would be favorable to the plaintiff would not relieve the plaintiff from proving his case. The rule is that such presumption does not arise until the party upon whom the burden of proof rests has made a prima facie case. Texas & Pacific Ry. Co. v. Shoemaker, 98 Tex. 451, 456, 84 S.W. 1049; Pullman Palace Car Co. v. Nelson, 22 Tex.Civ.App. 223, 54 S.W. 624, 626; Wichita Falls, R. & Ft. W. Ry. Co. v. Emberlin, Tex.Civ.App., 255 S.W. 796, 805; Texas Unity Oil Co. v. Dolman, Tex. Civ.App., 8 S.W.2d 815; Schumacher v. Missouri Pacific Transp. Co., Tex.Civ.App., 116 S.W.2d 1136; Railroad Commission v. Humble Oil & Refining Co., Tex.Civ.App., 123 S.W.2d 423; McCormick and Ray’s Texas Law of Evidence, pp. 108-111, Sec. 59. The burden was upon the plaintiff to prove all of the three elements of discovered peril. His evidence did not make a prima facie case.”

In summary, there is no evidence in the record before us showing the length of time the onion stalk lay on the floor before the plaintiff slipped on it. Was it an hour? Several minutes? Only moments? Any one of these conjectures is as valid as the others. The time is unknown. The presumptions relied upon by the majority cannot and do not supply this proof. This proof is critical to the implied finding upon which the judgment hangs. Without it, the finding must be set aside and the judgment must fall.

The deposition of the plaintiff was the only evidence offered on the trial. Under the authority of Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948), I would reverse the judgment and remand the case to the trial court for possible further development.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Fayette McCoy KEITH, Appellant, v. Kelly SPRATLAN, Appellee.
    No. 891.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 20, 1975.
    Rehearing Denied Dec. 11, 1975.

      Rex Kirby, Kirby & Kirby, Tyler, for appellant.
    A. D. Clark, III, Asst. Crim. Dist. Atty., for appellee.
    Reagan E. Hunter, Tyler, for Guardian Ad Litem.
   McKAY, Justice.

Appellant, Fayette McCoy Keith, brings this appeal from a decree of the Domestic Relations Court of Smith County, Texas, which terminated the parental rights of appellant to her child, Theresa Lynn Keith. The suit to terminate parental rights was instituted by appellee, Kelly Spratlan, on behalf of the State Welfare Department under Tex.Family Code Ann., Sections 11.03 and 15.02 (1974). The decree recited that appellant and the father, Ronnie Lee Keith, had each “. . . engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child” and “. . . that termination would be in the best interest of the child.” Accordingly, the parent-child relationship between the mother and the father and the child was ordered terminated.

In her first point, appellant asserts error in that she failed to receive proper service of citation or notice of the proceedings to terminate her parental rights. Ap-pellee, in her reply point, admits that appellant was not properly served and requests that we remand that portion of the cause dealing with the parental rights of appellant to the trial court.

Tex.Family Code Ann., Section 11.01 (1974), provides:

“(5) ‘Suit affecting the parent-child relationship’ means a suit brought under this subtitle in which . . . termination of the parent-child relationship is sought.”

Tex.Family Code Ann., Section 11.09 (1974), further provides:

“(a) The following persons are entitled to service of citation on the commencement of a suit affecting the parent-child relationship:
“(7) each parent, . . .”

Therefore, appellant’s first point is sustained.

In light of the foregoing, consideration of appellant’s remaining points is rendered unnecessary except for her points 5 and 6 in which she asserts that there was no evidence or that there was insufficient evidence to support the trial court’s termination of the parental rights of the father, Ronnie Lee Keith.

Tex.Family Code Ann., Section 11.19 (1974) sets forth the following:

“(a) Appeals from orders, decrees, or judgments entered in suits affecting the parent-child relationship, when allowed under this section or under other provisions of law, shall be as in civil cases generally.” (Emphasis added.)

The father was properly served, but he filed no answer, made no appearance, and has prosecuted no appeal from the judgment. Therefore, the judgment of the trial court has become final as to the father. Shell Petroleum Corporation v. Royal Petroleum Corporation, 135 Tex. 12, 137 S.W.2d 753, 759 (1940, opinion adopted). We cannot entertain appellant’s attempted appeal from that part of the judgment involving only the rights of the father because appellant lacks a justiciable interest in the father’s rights. Manning v. State, 423 S.W.2d 406 (Tex.Civ.App.—Austin, 1968, writ ref’d, n. r. e.); Union Bus Lines, Inc. v. Southwestern Greyhound Lines, Inc., 250 S.W.2d 269 (Tex.Civ.App.—Fort Worth, 1952, writ ref’d, n. r. e.).

Those portions of the judgment of the trial court terminating the parental rights of appellant and appointing appellee managing conservator of the minor child are reversed and the cause is remanded to that court for a new trial.

Reversed and remanded.


text:
    HIGHLANDS UNDERWRITERS INSURANCE COMPANY, Appellant, v. Charles E. HARRIS, Appellee.
    No. 883.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 20, 1975.
    Rehearing Denied Dec. 11, 1975.
    Kenzy D. Hallmark, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellant.
    John H. Seale, Jasper, for appellee.
   McKAY, Justice.

This is a workmen’s compensation case in which the jury found that appellee suffered total and permanent loss of use of his right leg below the knee, and the jury also found that appellee suffered a general bodily injury, other than the leg injury, which resulted in permanent partial incapacity. The trial court rendered judgment for appellee for both injuries and appellant brings this appeal.

The jury found that appellee’s loss of use of his right leg below the knee began May 30, 1974; and his recovery in the judgment was for 125 weeks at $63.00 per week. It was found that appellee’s general injury began on March 27,1974, and the judgment allowed recovery for 300 weeks at the rate of $33.33 per week. The total of the judgment was for $12,250.53, payable in a lump sum.

Appellant’s three points all pertain to whether the trial court’s judgment was contrary to Art. 8306, sec. 12, V.A.C.S. by allowing recovery for both permanent loss of use of a specific member and for permanent partial general incapacity.

Art. 8306, section 12, Specific Compensation, provides in part:

“For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid ⅜ * ⅜
“Where the employee sustains concurrent injuries resulting in concurrent inca-pacities, he shall receive compensation only for the injury which produces the longest period of incapacity; but this Section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one (1) member, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.
“In all cases of permanent partial incapacity it shall be considered that the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member; but the compensation in and by said schedule provided shall be in lieu of all other compensation in such cases.” (Emphasis added.)

Section 10 of Art. 8306 pertains to total incapacity, and Section 11 is concerned with partial incapacity.

Appellee alleged that he suffered a general injury when a tree fell on his left shoulder and knocked him to the ground which caused total and permanent incapacity. In the alternative, appellee alleged that if his injury was not total and permanent, that he should receive whatever disabilities as the proof may show, or for any loss of use of a specific member. Pleading further in the alternative, appellee alleged that if the proof shows that his injury was confined to a specific member or members of his body, that he recover for whatever loss of use of such member or members as a preponderance of the evidence may show. There was no allegation that any specific injury extended to or affected the body generally.

The trial court submitted issues on specific and general injuries. As to the speeific injury to appellee’s right leg below the knee, the jury found he suffered total and permanent loss of use of his right leg below the knee. The jury also found that appel-lee’s injury included an injury to his body generally other than his right leg below the knee and that his average weekly wage earning capacity was $50.00 per week after the injury whereas his average weekly wage before the injury was $100.00.

The court instructed the jury “that in determining Special Issues 6 through 10 as to whether Charles E. Harris has sustained any incapacity, partial or total, as those terms have been herein defined, you are not to take into consideration the effects of the condition of Mr. Harris’ right ankle or base any findings on such condition.”

Appellant argues that appellee cannot receive compensation for both a specific injury and a general injury, but must choose to take his recovery under the section which produces the longest period of incapacity or which gives him the greatest compensation. Appellant cites and relies upon Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 654 (1953); Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73 (1953); and Muro v. Houston Fire & Casualty Ins. Co., 310 S.W.2d 420 (Tex.Civ.App.— San Antonio, 1958, writ ref’d, n. r. e.).

Scott holds (253 S.W.2d p. 654) that an employee cannot be compensated for both a specific injury and a general injury, while Hargrove holds that findings of both specific and general injuries were not in conflict, but such findings gave rise to alternative rights of recovery, and the workman should be awarded such recovery which produces the greatest benefits or the longest period of incapacity or the most compensation.

Both appellant and appellee rely upon Texas Employers’ Ins. Ass’n v. Moreno, 277 S.W. 84 (Tex.Comm’n App., 1925, judgment adopted). Moreno was carefully analyzed in Muro v. Houston Fire & Casualty Ins. Co., supra, a case with a fact situation almost identical with the instant one, and Justice Pope, speaking for the court and citing Hargrove and Scott, held that “an employee who seeks recovery under a general injury and also for a concurrent specific injury which is total and permanent loss of use, may only take under the section which gives him the most compensation.”

Appellee maintains Moreno stands for the proposition that a claimant may recover for both a general injury under Sections 10 or 11, Art. 8306, and also a permanent loss of a specific member under Section 12. Moreno does hold that a recovery under Section 10 for injuries not specified under Section 12, does not preclude recovery under the last paragraph of Section 12 for partial incapacity due to partial loss of use of the arm. If Moreno can be said to hold contrary to Hargrove, Scott and Muro, or any of them, it seems the later expressions of the Supreme Court would be controlling.

Appellee cites Texas Employers’ Ins. Ass’n v. Yother, 306 S.W.2d 730 (Tex.Civ.App.—Fort Worth, 1957, writ ref’d, n. r. e.) for its holding that an injury to a specific member and also a concurrent general injury entitles a workman to recover for the injury which produces the longest period of disability, “and that where both injuries are permanent he is entitled to recover for the combined effects of both.” We do not understand Yother to be contra to Hargrove, Scott and Muro. There was no finding of incapacity due to the injury to the leg below the knee, but there was a finding that the injuries to Yother were not confined to injuries to the leg below the knee. The court reasoned that under such circumstances the jury could consider all of his injuries which were pled and proved in finding a general injury, and that where incapacity stems from a specific injury concurrently with incapacity from a general injury to produce total and permanent disability, the claimant may recover for total and permanent incapacity. Yother acknowledges and recognizes the language of Section 12 that when there is both a specific and a general injury the claimant may recover only for the injury producing the longest period of incapacity. But when Yother uses the language “that where both injuries are permanent he is entitled to recover for the combined effects of both”, it seems clear from reading the entire opinion that the intention of the court was that all injuries, specific and general, may be combined by the jury in finding total and permanent disability.

Appellee also cites and relies on Texas Employers’ Ins. Ass’n v. Polasek, 451 S.W.2d 260 (Tex.Civ.App. —Houston (1st Dist.), 1970, writ ref’d, n. r. e.). In our opinion, Polasek is not contra to Hargrove, Scott and Muro. There were injuries to an eye and to the head in Polasek, and the jury found claimant’s injuries were not solely confined to the eye, and the court held that he could “be compensated for the cumulative effect of all [of] the injuries.”

Appellee also cites United States Fidelity and Guaranty Co. v. London, 379 S.W.2d 299 (Tex.1964) for the proposition that the first clause of Section 12 dealing with concurrent injuries applies only to temporary loss of use of specific members. The five-to-four majority opinion in London does not address itself to the specific question in the instant case. In his dissenting opinion in London, Judge Smith at p. 312 expresses the opinion that the first clause of the first paragraph following enumeration of benefits for specific injuries in Section 12 applies in cases where a general injury is involved simultaneously with a specific injury. See also Texas Employers’ Ins. Ass’n v. Maledon, 27 S.W.2d 151 (Tex.Comm’n App., 1930).

London has a majority opinion, a concurring opinion, and two separate dissenting opinions on the meaning of the paragraph set out hereinbefore when applied to more than one specific injury.

In our opinion Section 12 and the authorities cited stand for the proposition that where there is a specific injury and a concurrent general injury the workman cannot recover compensation for both but may receive compensation only for the injury which produces the longest period of incapacity or the greatest benefits.

As pointed out in Muro and Section 12, Art. 8306, the claimant who takes under the specific injury provisions of Section 12 takes in lieu of all other compensation.

The claimant here is entitled to recovery under the section which produces the longest period of incapacity or which gives him the greatest compensation, but he is not entitled to recover for both the general injury and the specific injury. Accordingly, appellant’s points are sustained, appellee’s cross point is overruled, and that portion of the judgment of the trial court which awarded compensation to appellee for 300 weeks for partial permanent incapacity at $33.33 per week, with proper credits and discounts, is affirmed, and that portion of the judgment which awarded compensation for 125 weeks for the loss of use of his leg below the knee at $63.00 per week is reversed, and the cause is remanded to the trial court to enter judgment in accordance with this opinion.

Affirmed in part and reversed in part and remanded.

      . “Special Issue No. 1. Do you find from a preponderance of the evidence that Charles E. Harris’ injury on May 30, 1974, included an injury to his right leg below the knee?
      “Answer: ‘We do’ or ‘We do not’
      ‘ ‘Answer: We do
      “If you have answered Special Issue No. 1 ‘We do,’ then answer:
      “Special Issue No. 2. Do you And from a preponderance of the evidence that Charles E. Harris sustained any loss of use of his right leg below the knee as a natural result of such injury?
      “Answer ‘We do’ or ‘We do not’
      “Answer: We do
      “If you have answered Special Issue No. 2 ‘We do’, and only in that event, then answer:
      “Special Issue No. 3. Do you find from a preponderance of the evidence that such loss of use is total and permanent or less than total and permanent?
      “Answer ‘Total and Permanent’ or ‘Less’.
      “Answer: Total and Permanent

      “Special Issue No. 6. Do you find from a preponderance of the evidence that Charles E. Harris’ injury of May 30, 1974, included an injury to his body generally other than his right leg below the knee?
      “Answer ‘We do’ or ‘We do not’
      “Answer: We do
      “If you have answered Special Issue No. 6 ‘We do’, then answer:
      “Special Issue No. 7. Do you find from a preponderance of the evidence that Charles E. Harris sustained any incapacity as a natural result of the injury to his body generally other than his right leg below the knee?
      “Answer ‘We do’ or ‘We do not’.

        “Answer: We do
      “If you have answered Special Issue No. 7 ‘We do,’ and only in that event, then answer:
      “Special Issue No. 8. Do you find from a preponderance of the evidence that such incapacity is total and permanent or less than total and permanent?
      “Answer ‘Total and Permanent’ or ‘Less’.
      “Answer: Less

      “If you have answered Special Issue No. 9, and if in such answer you have found some partial incapacity, and only in such event, then answer:
      “Special Issue No. 10. What do you find from a preponderance of the evidence to be the average weekly wage earning capacity of the plaintiff during the period of such partial incapacity, if any you have found?
      “Answer by stating an amount in dollars and cents, if any.
      “Answer: $50.00
      “Special Issue No. 11. Find from a preponderance of the evidence the amount of plaintiffs average weekly wage as of May 30, 1974, which would be just and fair to both plaintiff and defendant.
      “Answer in dollars and cents.
      “Answer: $100.00. ”


author: McCLOUD, Chief Justice.

text:
    The TRAVELERS INDEMNITY COMPANY, Appellant, v. CEN-TEXAS VENDING COMPANY et al., Appellees.
    No. 4842.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 21, 1975.
    Rehearing Denied Dec. 12, 1975.
    L. B. Slagle, Brownwood, for appellant.
    Gary R. Price, Brownwood, for appellees.
   McCLOUD, Chief Justice.

This case involves the interpretation of an employee exclusion clause in an automobile insurance policy.

The Travelers Indemnity Company issued an automobile insurance policy to Wayne Colvin and Bob Peters, d/b/a Cen-Tex Vending Company. Delbert E. Angerstein, while in the course of his employment for Cen-Tex Vending, was injured in an automobile accident while driving a vehicle owned by Cen-Tex and insured by defendant. Travelers had been previously notified by letter from its local agent that Anger-stein was an “additional driver” under the policy. Angerstein was not a domestic employee and he was not covered by workmen’s compensation insurance. The essential facts were stipulated.

Plaintiffs, Cen-Tex Vending Company and Delbert E. Angerstein, sued, defendant, The Travelers Indemnity Company, seeking recovery for medical expenses incurred by Angerstein. The trial court entered judgment for plaintiffs for $7,450, which included medical expenses, penalty, interest and attorney’s fees. Defendant has appealed. We reverse and render.

The policy provides:

“Coverage C — Automobile Medical Payments •
To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
Division 1. To or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from the automobile, provided the automobile is being used by the named insured or his spouse if a resident of the same household, or with the permission of either; or . . (Emphasis added)

Under “Exclusions” the policy states:

“This policy does not apply: .
(h) under division 1 of Coverage C, to bodily injury to or sickness, disease or death of any employee of the named insured or spouse arising out of and in the course of (1) domestic employment by the named insured or spouse, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the named insured or spouse(Emphasis added)

The medical expenses incurred by Anger-stein were expressly excluded. He was in the course of his employment for the named insured at the time of the accident. The policy provides that a domestic employee in the course of employment is excluded only if benefits are in whole or in part either payable or required to be provided under any workmen’s compensation law. We think it is clear, however, that any other employee of the insured who is injured within the course of his employment is excluded from receiving benefits. The phrase, “. . . other employment by the named insured or spouse”, refers to employment other than domestic employment. Whether benefits are in whole or in part payable or required to be provided under any workmen’s compensation law is immaterial except as to domestic employees.

Commercial Standard Ins. Co. v. American General Insurance Company, 455 S.W.2d 714 (Tex.1970), cited by plaintiffs, is not controlling. There the court held that because of the “Severability of Interests” clause, liability coverage was afforded an additional insured who was sued by employees of another additional insured.

The judgment of the trial court is reversed and rendered.


author: VANCE, Commissioner.

text:
    George WAGONER, acting Commissioner of Labor & Custodian of the Special Fund, Appellant, v. Warney SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.
    See also, Ky., 530 S.W.2d 370.
    Earl M. Cornett, Gen. Counsel, Dept, of Labor, James F. Kemp, Asst. Counsel, Dept, of Labor, Frankfort, for appellant.
    Harry R. Stamper, Lowe, Lowe & Stamper, Pikeville, John V. Porter, Paintsville, William L. Huffman, Director, Workmen’s Compensation Bd., Dept, of Labor, Frankfort, for appellees.
   VANCE, Commissioner.

Appellee, Warney Smith, filed his application for adjustment of claim (Form 11) in which he claimed total and permanent disability from silicosis and/or coal-workers’ pneumoconiosis. He was fifty-one years old and had worked as an underground miner seventeen years when he filed his application. His medical evidence was sufficient to sustain the finding of the board that he had contracted pneumoconiosis although there was competent medical evidence that he was also suffering from chronic emphysema and severe hypertensive cardiovascular disease.

The extent of his disability is the question at issue. Medical evidence as to the extent of disability ranged from an estimate of ten-twenty per cent disability to the whole man to estimates of total disability. The claimant testified that he was unable to work but offered no evidence that he had tried to work elsewhere and was unable to do so, or that he had applied for and was refused other work, or even that he had made any investigation at all as to the availability of other work.

The board made an award based upon occupational disability of fifty per cent. Upon a petition for review the circuit court set aside the award and directed a new award be entered upon the basis of total-permanent disability. The Special Fund appeals.

In Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), we established new guidelines for determining the extent of partial disability:

“If the board finds that the workman is so physically impaired that he is not capable of performing any kind of work of regular employment, or if the board finds that regular employment in the kind of work the man can perform is not available on the local labor market, the man will be considered to be totally disabled. Otherwise he will be considered to be only partially disabled. And the percentage of his partial disability will be determined by the ratio of the prevailing wage rates in the kind of employment available to him, to the wage rates earnable by him before being injured.
“It will be noticed that in the rule here outlined no significance is given to the workman’s usual occupation other than that the wages earned by him in that occupation before injury are a factor in determining his pre-injury wage capacity for comparison with his post-injury wage capacity.
“ ‘ * * * the normal rule is that disability is not tested by any particular occupation, and that, even in the case of a skilled craftsman, he will not be deemed totally disabled if unskilled or light work that he can perform is continuously available to him.’ Larson’s Workmen’s Compensation, Vol. 2, sec. 57.53.”

Young v. Marsillett, Ky., 473 S.W.2d 128 (1971), recognized that an occupational disability from pneumoconiosis might be only a partial disability in which event the extent of the disability should be determined by the principles of Osborne v. Johnson, supra.

In Princess Manufacturing Company v. Jarrell, Ky., 465 S.W.2d 45 (1971), we held the burden of establishing the extent of disability caused by occupational diseases rests upon the claimant. In many cases however it is as easy for the employer to demonstrate the availability of other regular employment as it is for the claimant to show the lack of it. In Yocom v. Keene, Ky., 512 S.W.2d 27 (1974), we moderated the rule of Princess Manufacturing to the extent of holding that where neither party offers evidence as to the availability of other regular employment in the area, and where the work opportunities of the claimant are limited by reason of his education, work experience and physical condition his testimony that he was unable to work and did not know of any other work he could do was sufficient to support a maximum award in his favor.

In this case there was no finding of total disability. In order to reverse the findings of the board unfavorable to the claimant and upon which he had the burden of proof the test is whether the evidence compelled a finding in his favor. Lee v. International Harvester Company, Ky., 373 S.W.2d 418 (1963). Although Yocom v. Keene, supra, is authority for sustaining an award of the board in favor of a claimant, absent the technical requirements of Princess Manufacturing Company v. Jarrell, supra, as to the burden of proof, it is not authority that a finding favorable to the claimant, absent that proof, is compelled, in the face of a board finding to the contrary.

We see nothing in the evidence in this case to compel the board to find total disability and therefore the award of the board should not have been set aside by the circuit court.

The Special Fund contends that the entire award should be set aside because the evidence does not support a finding of any occupational disability. Whatever merit the argument might have, it fails in view of the fact that the Special Fund did not seek a review of the award in circuit court and as a result of that failure the award is binding upon the Fund.

The judgment is reversed with direction that a new judgment be entered affirming the award of the board.

All concur.

      . The disability in this case occurred in 1971. We need not consider here whether or the extent to which the principles of Osborne v. Johnson were modified by Chapter 78 of the Acts of the 1972 General Assembly.

      . Young v. Marsillett was decided before the enactment of Chapter 78 of the Acts of the General Assembly of 1972.


author: PALMORE, Justice.

text:
    Drexell DAVIS, Treasurer of the Commonwealth of Kentucky, etc., Appellant, v. Thomas BAKER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.

      Ed W. Hancock, Atty. Gen., Thomas A. Ainley, Lloyd R. Edens, Asst. Attys. Gen., Frankfort, for appellant.
    William M. Melton, Hazard, Joe A. New-berg, Special Fund, Frankfort, Maxwell P. Barret, Hazard, for appellees.
   PALMORE, Justice.

The Uninsured Employers’ Fund (KRS 342.760) appeals from a judgment reversing an order of the Workmen’s Compensation Board which had denied a claim asserted by the appellee Thomas Baker against his last employer, the appellee Jerry Lynn Coal Corporation.

The appellant’s argument is that the evidence before the Board was not sufficient to compel a finding in the claimant’s favor and that the reviewing court erred in adjudging that it was. The claimant’s position is, of course, to the contrary. He contends also that the appeal should be dismissed for the reason that unless and until liability is adjudged against the Fund it is not a party in interest and has no standing to appeal.

Baker’s claim was filed with the Board on February 16, 1973. It alleged that he had become totally disabled on January 12, 1973, from the “occupational disease of pneumoconiosis and silicosis and black lung.” Attached to the claim were medical reports by two physicians who had examined the claimant. One, by Dr. William H. Anderson, of Louisville, Kentucky, concluded with a final diagnosis of “Category 1 pneumoconiosis and paroxysmal nocturnal dyspnea compatible with arteriosclerotic heart disease.” The other, by Dr. Richard P. O’Neill, of Lexington, Kentucky, diagnosed the claimant’s condition as “1. Chronic bronchitis. 2. Coal worker’s pneumoconi-osis, simple, stage 1/1 (p and q).”

In his deposition Dr. Anderson testified as follows:

“It has always been my policy and continues to be so to permit a man with Category 1 pneumoconiosis to continue working when he has a job under the conditions that he will accept repeat checks Xrays at least at yearly intervals with the understanding that if he progresses to a Category II he would then remove himself from any further dust exposure.”

It was Dr. Anderson’s opinion that except for the arteriosclerotic condition (which was not attributed to the employment) Baker could perform hard manual labor the same as any other man of his age. Dr. O’Neill, on the other hand, testified that in his opinion, “by virtue of the fact that Mr. Baker has coal worker’s pneumoconiosis, he is medically, totally and permanently disabled from his usual and customary occupation of coal mining and he should be cautioned not to work in any form of noxious, dusty environment.”

At the time he was examined by Drs. Anderson and O’Neill the claimant was 45 or 46 years of age and had worked for a total of four different coal mining companies over a period of more than 30 years. He said that he had no education and could not read or write except to sign his name. He had worked for his last employer as a repairman on machines and described himself as a mechanic. In Dr. O’Neill’s opinion, “this man would be a very poor competer” in the labor market “because of his industrial lung disease, because of his age and because he lives in Eastern Kentucky.”

No evidence was taken in behalf of the defendant employer or the Special Fund. On November 12, 1973, after the case had been submitted and briefed, the Board entered an order holding it in abeyance pending this court’s decision in another proceeding involving a construction of the 1972 legislative amendments to the occupational disease features of the Workmen’s Compensation Act.

On April 29, 1974, the claimant moved that the Uninsured Employers’ Fund be made a party defendant, alleging that his employer, Jerry Lynn Coal Company, apparently was not operating under the Workmen’s Compensation Act at the time he became disabled. A statement in the record executed by the director of the Board indicates that on January 12, 1973, the employer had not accepted the provisions of the Act and did not have coverage. Over strenuous objection by the Uninsured Employers’ Fund the motion was granted, and it was made a party defendant. Its subsequent motions for dismissal on grounds that the Board had no jurisdiction and that in any event it had been irreparably prejudiced by the delay in making it a party were denied.

In its final order the Board dismissed the claim on its merits and did not rule on the jurisdictional question raised by the Uninsured Employers’ Fund. The critical factual findings were as follows:

“Dr. William H. Anderson testified that plaintiff could continue working in the mines . . . and could perform hard manual labor, but for his heart disease .. The only other medical evidence was the testimony of Dr. O’Neill who testified that plaintiff should not work in the mines or a dusty environment but never testified that plaintiff could not perform manual labor which did not involve coal mining. It is to be observed that plaintiff has the training of a mechanic and considering his age, the Board is of the opinion that he is not disabled.”

On the claimant’s petition for review (KRS 342.285) the circuit court accepted his contention that “the only requirement in an occupational disease case is that the claimant has contacted [sic] the disease and is suffering from it at the time he ceased work and that he would be barred from seeking employment in his regular employment as a coal miner. All these requirements have been met by the claimant and the Board erred in dismissing the claim on the basis of the claimant not being so disabled.” The order of the Board was thereupon set aside with directions that a new opinion and order be entered in conformity with that conclusion.

The threshold question to be decided is whether the Uninsured Employers’ Fund has standing to prosecute an appeal to this court. According to Baker’s motion to dismiss, which has been passed to the merits, “Since there was no judgment of liability awarded, either by the Board or the Lower Court, to affect the right of the Uninsured Employers Fund, appellant herein, then this appeal should be dismissed. . . . ”

If this were a common-law action and the judgment of the circuit court were equated with an order granting a new trial, it would be interlocutory and not subject to appeal, since there has not been a final adjudication of liability or non-liability. In workmen’s compensation proceedings, however, it has been consistently held that a judgment setting aside an order of the Board and remanding the case for a different disposition on the merits is appealable. Jewell Ridge Coal Company v. McDowell, Ky., 392 S.W.2d 59, 60 (1965); Pittsburg & Midway Coal Mining Co. v. Rushing, Ky., 456 S.W.2d 816, 818-819 (1969). Obviously the Uninsured Employers’ Fund was a beneficiary of the Board’s order dismissing the claim, because it was thereby absolved of any possible liability. The judgment of the circuit court re-exposed it. With respect to its standing as a party in interest, we are inclined to think that the claimant conferred that status upon it by making it a defendant and asserting a right of recovery against it. Undoubtedly it has a “real and direct interest” in the controversy. Cf. Miller v. Miller, Ky., 335 S.W.2d 884, 886 (1960).

This court has never held, as the claimant contends, that “the only thing that has ever been required in so far as an occupational disease of pneumoconiosis and, or silicosis is concerned is to show that the claimant has contracted the disease and is suffering from it at the time he ceased work and that he would be debarred from seeking employment in his regular occupation as a coal miner.”

Good v. Russell Fork Coal Company, Ky., 387 S.W.2d 842, 843 (1965); Harlan Collieries Company v. Smith, Ky., 396 S.W.2d 67, 68 (1965), and Daugherty v. Watts, Ky., 419 S.W.2d 137, 138 (1967), are all cases in which findings of the Board were upheld. We have held, in substance, that the existence of the disease alone is sufficient to support a finding that the claimant is totally disabled for his regular occupation as a miner exposed to harmful dust. We have not said that as a matter of law the existence of the disease requires such a finding.

In this case the medical witnesses agree that the claimant has pneumoconiosis in its earliest discernible stage. They differ, however, as to whether it prevents him from continuing to work, for the time being at least, as a coal miner. It may be that the mere presence of the disease makes him unemployable in the mining industry in eastern Kentucky. Frankly, we do not know. Certainly we cannot declare it so as a matter of judicial notice. If it is a fact it must be proved, and must be proved conclusively if we are to hold that the Board cannot find otherwise.

We fully appreciate the importance of this particular question, and that is the reason for a formal opinion in the case. What we hold here is that whether the existence of pneumoconiosis actually renders a person unemployable as a coal miner is a question of fact to be decided by the Board (or by the General Assembly) rather than by a court. If the existence of the disease alone prevents employment as a miner, then the extent to which the claimant’s over-all earning capacity has been impaired should be determined under the principles stated in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968).

In this particular instance the Board’s finding of no disability appears to have been grounded on the premise that because the claimant is a mechanic his ability to earn a living other than in the mines has not been impaired. If, however, he can no longer do the work at which he is most experienced, and which probably represents his maximum earning capacity, then it is virtually certain that such capacity has been reduced. Regrettably, the trouble here is that except for Dr. O’Neill’s general observation that he “would be a very poor competer,” neither side produced any evidence whatever to demonstrate the availability or nonavailability of some other type of employment. See Princess Manufacturing Company v. Jarrell, Ky., 465 S.W.2d 45, 48-49 (1971); Young v. Marsillet, Ky., 473 S.W.2d 128, 130-131 (1971); Yocom v. Keene, Ky., 512 S.W.2d 27, 28-29 (1974), and Wagoner v. Smith, 530 S.W.2d 368 (decided today); all of which discuss the question of what must be proved, and by whom, with respect to partial disability when the claimant is totally disabled from his usual occupation.

Thus we are forced to the conclusion that (1) the evidence was not such as to compel the Board to find total disability and (2) there was no evidence on which the Board could have determined the extent of partial disability. Hence the trial court erred in setting its order aside.

Neither the employer nor the Special Fund having appealed from the judgment, as to them it must stand and the Board must abide by it. The judgment should be modified only to the extent of affirming the final order of the Board dismissing the claim as to the Uninsured Employers’ Fund.

The judgment is reversed with directions that a new judgment be entered in conformity with this opinion.

All concur.

      . The Special Fund was a party defendant pursuant to KRS 342.120(l)(a).

      . Maggard v. International Harvester Company, Ky., 508 S.W.2d 777 (1974).

      . The argument that an employer who has not elected to come under the Workmen’s Compensation Act is not required to comply with it, and therefore cannot be in default under KRS 342.760(4), was decided to the contrary in Davis v. Turner, Ky., 519 S.W.2d 820 (1975).

      . In those three instances, silicosis.

      . We need not consider in this case whether, or the extent to which, the principles set forth in Osborne v. Johnson have been modified by Ch. 78, Acts of 1972.


author: CULLEN, Commissioner.

text:
    Colonel C. J. HYDE et al., Appellants, v. Celestine HAUNOST et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.

      Oldham Clarke and Nelson Helm, Jr., Stites, McElwain & Fowler, Louisville, for appellants.
    Frank E. Haddad, Jr., Harris J. Berman, Louisville, for appellees, Col. Carl E. Heus-tis, George R. Johnson, and George W. Kin-ser.
    George H. Logan, Hardy, Logan & Hastings, Louisville, for appellee, majority of the Trustees of the Louisville Police Retirement Fund.
    W. David Klingman, Frockt & Benovitz, P. S. C., Louisville, for amicus curiae.
   CULLEN, Commissioner.

In the judgment here on appeal the circuit court held constitutional a 1970 ordinance of the City of Louisville which made a permanent, continuing increase of thirty-five percent in the pensions of “police officers” of the city who became pensioners prior to July 1, 1964, the increase to be financed by appropriations made from the general funds of the city rather than from the funds of the Policemen’s Retirement Fund. There are three appellants, one being a policeman who retired after July 1, 1964, and the other two being policemen still in service. All three are members of the eight-member board of trustees of the Policemen’s Retirement Fund, but the position they take in this case is not that of the majority of the board. The appellants maintain that the circuit court erred in not holding the 1970 ordinance unconstitutional as discriminatory, their main argument being that there is no rational basis for an increase in benefits restricted to those who retired prior to July 1, 1964.

In his findings and conclusions the circuit judge found:

1. Under the policemen’s pension ordinances of Louisville, benefits for retirements prior to July 1,1964, were computed on a formula which placed a limit of $3,000 on the amount of salary to which the benefit ratio would be applied, whereas in computing benefits for those who retired after July 1, 1964, there was no such limit on the salary.
2. Prior to July 1, 1964, policemen were not permitted by law to hold outside jobs, and thus were unable to obtain Social Security coverage, which they did not have as policemen. Since July 1, 1964, however, policemen have been allowed to obtain outside employment and thus to get Social Security coverage.
3. Salaries of policemen in Louisville have increased to a large extent since July 1, 1964.
4. By reason of the differences in the formulae and in the salaries, the retirement benefits for a policeman who retired after July 1, 1964, are in many instances more than twice the benefits of a policeman who retired before July 1, 1964, with the same length of service.
5. The purpose of the 1970 ordinance was to correct obvious inequities between those who retired before July 1,1964, and those who retired after that date.

This court agrees with the conclusion of the circuit judge that the foregoing facts fully justify the classification made by the 1970 ordinance, the applicable rule being that if a classification made by the legislature has a reasonable basis the law does not constitute special or local legislation within the prohibition of Section 59 of the Kentucky Constitution nor does it deny the equal protection guaranteed by the United States Constitution. See Miller v. Nunnelley, Ky., 468 S.W.2d 298.

In Board of Trustees of Policemen’s Pension Fund v. Schupp, 223 Ky. 269, 3 S.W.2d 606, this court upheld a statute which increased the pension benefits of city policemen already on the pension rolls, the basis for the holding being that to make adjustments in pensions of public employes for increases in the cost of living was a valid public purpose. It would naturally follow, we think, that if the making of adjustments for increases in the cost of living is a valid purpose, classifications which are related to the time and extent of the increase have a reasonable basis. Classifications related to dates frequently have been upheld. See Chapman v. Eastern Coal Corporation, Ky., 519 S.W.2d 390; Kentucky Board of Tax Appeals v. Citizens Fidelity Bank & Trust Company, Ky., 525 S.W.2d 68.

The circuit court held that although the 1970 Louisville ordinance in terms applied only to “police officers,” its obvious meaning was to include other beneficiaries, such as widows, who were receiving pension benefits attributable to a police officer’s service. We agree with that holding, which answers the appellants’ contention that the ordinance discriminates against the latter kinds of beneficiaries.

The circuit court further held that three policemen who had retired prior to July 1, 1964, and who intervened in the instant action seeking judgment upholding the validity of the 1970 ordinance, were entitled to prosecute that claim as a class action, representing all of the class of pre-1964 retirees. The appellants assert error in that holding, but they did not raise the point in the court below so we will not consider it here.

The judgment is affirmed.

All concur.


text:
    W. O. NEWMAN, Acting Commissioner, Department of Public Safety, Appellant, v. James Edgar HACKER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.
    Mary Jo Arterberry, Midway, for appellant.

      Robert L. Milby, Hamm, Taylor, Milby & Farmer, B. Robert Stivers, London, for ap-pellee.
   VANCE, Commissioner.

The appellee, James Edgar Hacker, was arrested by a state police officer and charged with the offense of driving a motor vehicle while under the influence of intoxicating liquor. KRS 189.520. He was requested by the officer to submit to a breathalyzer test but declined to do so except in the presence of counsel. He was advised that his refusal to take the test would result in the revocation of his motor vehicle operator’s license pursuant to the provisions of KRS 186.565.

Appellee’s operator’s license was revoked and he petitioned the circuit court for relief. The trial judge held that submission to a breathalyzer test is tantamount to giving evidence against one’s self and therefore the appellee was entitled to have assistance of counsel when the test was administered. The judgment of the circuit court invalidated the order of suspension on the theory that appellee’s refusal to submit to the test was justified.

W. 0. Newman, Acting Commissioner of the Department of Public Safety, appeals.

We held in Newman v. Stinson, Ky., 489 S.W.2d 826 (1972), that Fifth Amendment rights are not involved by the taking of breath samples for analysis for the reason that the administration of such tests are searches of the person for evidence rather than a compulsion of testimony. See also Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), it was held that such procedures as fingerprinting and the taking of blood and breath samples for analysis were not critical stages of a prosecution and the denial of the right to have counsel present at such procedures did not constitute a violation of the Sixth Amendment of the Constitution of the United States.

We conclude that the appellee had no right to have counsel present at the time the breathalyzer test was administered.

Appellee contends that he requested the officers to take him to a hospital for a blood test which they declined to do. KRS 189.520(8) provides that a person tested shall be permitted to have a duly licensed physician, of his own choosing, administer a test, in addition to the test administered at the direction of the police officer. This section of the statute contemplates a test in addition to a test administered by the police officers and when the test requested by the police officers is refused the section is not applicable.

The judgment is reversed with directions that a new judgment be entered upholding the revocation of the appellee’s operator’s license.

All concur except JONES, J., not sitting.


author: CATINNA, Commissioner. JONES, Justice

text:
    Robert J. HANEY, a citizen, resident, and taxpayer of the City of Somerset, Kentucky, etc., Appellant, v. CITY OF SOMERSET, a Municipal Corporation of the third class, etc., Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.

      Frederic G. Neikirk, Somerset, for appellant.
    Phillip K. Wicker, Harris & Wicker, Somerset, Jo M. Ferguson, Grafton, Ferguson, Fleischer & Harper, Louisville, for appellee.
   CATINNA, Commissioner.

Robert J. Haney, a citizen, resident, and taxpayer of the City of Somerset, appeals from a judgment of the Pulaski Circuit Court approving the issuance and sale of revenue bonds by the City of Somerset, the proceeds of which are to be used for the construction of a gas transmission pipeline.

The City of Somerset owns and operates a municipal natural gas distribution system. The system is not engaged in the primary production of natural gas, its function being confined exclusively to distributing natural gas purchased from other producers. The supply of gas available to the Somerset system from other sources has been drastically curtailed by the present energy crisis. The system determined that it could acquire a substantial amount of natural gas from the West Hyden field in Leslie County. The city proposes to obtain this available natural gas by constructing an eight-inch transmission line from the West Hyden field to the interstate transmission line of Columbia Gas Transmission Company near Manchester in Clay County. Columbia Gas would transport Somerset’s gas through its privately owned line to the municipal system, and Somerset would defray the cost of constructing the eight-inch pipeline from monies realized from the sale of revenue bonds to be issued by the city, the estimated cost of the project being $1,800,000.

KRS 96.170, while granting cities of the third class power to furnish utility services including heat, is nothing more than a basic grant of authority. Financing of the acquisition, construction, and extension of a municipal natural gas distribution system, as authorized by KRS 96.170, envisions the issue and sale of revenue bonds authorized by KRS Chapter 58. This procedure requires compliance with the statutory mandate set out in KRS 58.010 — 58.140.

The participation of Columbia Gas, a private corporation, in the transaction caused federal authorities to classify the proposed bonds as “industrial development bonds” subject to all federal taxation. (See Section 103(c), U.S. Internal Revenue Code of 1954.) Federal regulations concerning the public sale of the proposed revenue bonds require the filing of a detailed financial statement on behalf of Columbia Gas, which requirement is beyond the scope of Somerset’s ability to supply. Being unable to sell the revenue bonds at a publicly advertised competitive sale because of these restrictive federal regulations, Somerset proposes to issue and sell these revenue bonds privately, without any prior public advertisement. This private sale would be consummated by negotiations conducted with a number of “sophisticated investors,” a designation promulgated by federal statutes to define a particular class of investors.

Robert J. Haney filed this declaratory-judgment proceeding contesting the validity of the Somerset plan. It is claimed that various segments of the program are of questionable legality, including the proposal to sell the revenue bonds at a negotiated private sale rather than a publicly advertised competitive sale.

The trial court, upon its consideration of the private versus public sale question, reasoned:

“The sale of the proposed bond issue to a limited number of sophisticated investors within the meaning of SEC regulations can be accomplished without an Official Statement and without the special audits necessary to a public sale, and in view of the fact that the proposed bonds would take on some of the aspects of industrial building revenue bonds as authorized by Chapter 103 of the Kentucky Revised Statutes, which bonds may be sold by private negotiations, the proposed sale limited to sophisticated investors, which will require adequate reporting to a representative of the City, will be valid;
# ⅜ ⅜: ⅜ ⅜ *
“The City has the legal authority to sell municipal bonds possessing certain characteristics of industrial revenue bonds in a manner limiting such sales to sophisticated investors, as defined by federal law, where it is impractical or impossible to sell such bonds at competitive sale under federal law;”

Chapter 103 of the Kentucky Revised Statutes is concerned with “Revenue Bonds for Miscellaneous City or County Projects,” while KRS 103.200-103.285 are entitled “Industrial Buildings for Cities and Counties.” KRS 103.200 defines an industrial building as follows:

“As used in KRS 103.200 to 103.285, ‘industrial buildings’ or ‘building’ means any building, structure, or related improved area suitable for and intended for use as a factory, mill, shop, processing plant, assembly plant, fabricating plant, or parking or pollution control area or structure deemed necessary to the establishment, retention or expansion thereof, and the necessary operating machinery and equipment, or any of these things, to be rented or leased to an industrial concern by the city or county by which it is acquired.”

The revenue bonds now being considered by Somerset cannot qualify as industrial building revenue bonds under this definition. Although KRS 103.230 specifically permits the private sale of this particular type revenue bond, such private or negotiated sale is conditioned upon the lessee of the industrial building requesting in writing that the bonds be sold privately. This court is of the opinion that there is no possible theory by which the revenue bonds that Somerset proposes to issue can be transformed into industrial building revenue bonds that can be sold at a private or negotiated sale.

This court is of the opinion that existing Kentucky law is the controlling consideration in determining the validity of bonds issued by the Commonwealth or any of its governmental agencies. For many years the general policy of the Commonwealth has been to require the offering of municipal bonds at a publicly advertised competitive sale. Eagle v. City of Corbin, 275 Ky. 808, 122 S.W.2d 798 (1938). However, the public policy, as announced by the court, has upon occasions been made the subject of exceptions by acts of the legislature; for example, the Capital Plaza Authority, the Turnpike Authority, and the County Turnpike Authority, all of which are authorized by specific legislative enactment to sell revenue bonds either at public or private sale. Cf. Perkins v. City of Frankfort, Ky., 276 S.W.2d 449 (1953).

Although it is contended that KRS 96.170 does not expressly prohibit the private sale of bonds, it is likewise evident that the section is concerned with authorization only and does not contemplate the exercise of any control over financing the projects enumerated. A city desiring to avail itself of any right granted by KRS 96.170 must, if financing is required, resort to financing the proposed project by issuing the revenue bonds authorized by Chapter 58 of the Kentucky Revised Statutes.

It is contended that KRS 58.010 to 58.140 contain no express provision prohibiting a private sale. KRS 58.040 provides for the method of sale by the following language: “The bonds shall be sold in such manner and upon such terms as the governmental agency deems best, * * *.” In Eagle v. City of Corbin, 275 Ky. 808, 122 S.W.2d 798 (1938), the court was called upon to construe statutes “authorizing the city council or commissioners to sell such bonds ‘in such manner and upon such terms’ as it ‘shall deem for the best interests’ of the city.” This court, in limiting the scope of this language, said:

“ * * * The case quite forcefully presents to the court the need for speaking specifically upon the construction to be given the provisions of the statutes above cited. We think they are to be construed as granting broad discretionary powers to the city councils or commissioners in the creation and sale of such bonds, but not to the extent of avoiding public and reasonable advertisement or a proposal to receive bids or offers for bonds proposed to be issued and sold.”

This public policy has prevailed for many years, although from time to time in specific situations legislative enactment has mandated the alternate of public or private sales. In 1958 the General Assembly enacted KRS 424.360 which provides as follows:

“No sale of general obligation bonds or revenue bonds of any governmental unit or political subdivision, or agency thereof, shall be made except upon newspaper advertisements for bids, published for the publication area constituted by the political subdivision or government unit and published to afford statewide notice. If the bonds are in principal amount of fifty thousand dollars ($50,000) or more, an advertisement for bids shall also be published in a publication having general circulation among bond-buyers.”

This court has concluded that unless there is a legislative exemption of the requirements as set out in Eagle v. City of Corbin, supra, and KRS 424.360 the revenue bonds issued by the City of Somerset must be sold at a publicly advertised competitive sale.

We do not reach and now decline to pass upon other issues presented in this proceeding.

The judgment is reversed.

REED, C. J., and CLAYTON, LUKOW-SKY, PALMORE, STEPHENSON and STERNBERG, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting).

In my view the majority opinion is based on neither the law nor the facts.

The city of Somerset has owned and operated a municipal gas system since 1951. The city has been able to furnish natural gas to its residents, businesses and industries. Now, the city is caught in the “energy crisis.” Reduction of natural gas supplies has made it necessary for the city to allocate gas to its customers. Gas supplies to major industries have been drastically reduced. New industries, including an important health-care facility of the Commonwealth, have been refused the service of natural gas. The exigent circumstances which give rise to the need for additional supplies of natural gas place Somerset in the words of a mountain colloquialism, “between the crib loft and a tight place.”

The only available supply of natural gas for the city of Somerset is located in Leslie County, some 70 miles from Somerset. The only way this supply can be brought to Somerset is by construction of a pipeline approximately 22 miles in length to another gas line. To finance that construction, Somerset proposes to issue and sell revenue bonds privately and without any prior public advertisement.

Somerset is a city of the 3rd class. “The legislative body of any city of the 3rd class may, by ordinance, provide the city and its inhabitants with water, light, power, heat, and telephone service, by contract or by works of its own, located either within or beyond the boundaries of the city; make regulations for the management thereof, and fix and regulate the prices to private consumers and customers.” KRS 96.170.

Somerset of necessity adopted a plan to sell bonds to a limited number of investors within the meaning of SEC regulations. The trial court, in detailed and concise findings of fact and conclusions of law, held that the proposed bonds to be sold would take on some of the aspects of industrial building revenue bonds as authorized by Chapter 103 of the Kentucky Revised Statutes.

The majority opinion is bottomed on statutes that are not pertinent to the issues presented in this case. The majority opinion contains this broad statement, “For many years the general policy of the Commonwealth has been to require the offering of municipal bonds at a publicly advertised competitive sale.” That policy is predicated upon the stale authority of Eagle v. City of Corbin, 275 Ky. 808, 122 S.W.2d 798 (1938). The principles enumerated in Eagle, supra, are distinguishable from those presented in the case at bar.

The Legislature has relieved governmental agencies from the requirements that their bonds be sold at a publicly advertised sale. Examples of agencies so exempted are the Capitol Plaza Authority, the Turnpike Authority, and the County Turnpike Authority. These agencies are authorized by the Legislature to sell revenue bonds either at public or private sales. The precedent set by the Legislature is of sufficient authority to justify this court in modifying its previously announced public policy of requiring the sales of municipal bonds to be publicly advertised. The result of the majority opinion this day rendered is a cruel and harsh blow to the hopes and aspirations of Somerset and its citizens. I respectfully dissent from the majority opinion and I would affirm the judgment.

      . The applicability, vel non, of this section of the statute was not presented in the lower court, has not been argued, and is not decided.