author: DUNAGAN, Chief Justice.

text:
    CONN, SHERROD & CO., INC., Appellant, v. TRI-ELECTRIC SUPPLY COMPANY, INC., Appellee.
    No. 913.
    Court of Civil Appeals of Texas, Tyler.
    March 11, 1976.
    Rehearing Denied April 8, 1976.

      Joe Meador, San Antonio, for appellant.
    Allan K. DuBois, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appel-lee.
   DUNAGAN, Chief Justice.

This is an appeal from the 57th Judicial District Court of Bexar County, Texas, in which appellant, Conn, Sherrod & Co.,- Inc., was plaintiff and cross-defendant, and ap-pellee, Tri-Electric Supply Company, Inc., was a defendant and cross-plaintiff.

For convenience, appellant will be referred to as “Conn, Sherrod” and appellee will be referred to as “Tri-Electric.”

Appellant, Conn, Sherrod, as plaintiff, instituted this suit against Barnett Electric Company, as defendant, for indebtedness in the amount of $53,063.17, and to remove mechanic’s and materialmen’s liens filed by Barnett Electric Company and appellee, Tri-Electric, upon the Woodbury apartment property and Gardendale Shopping Center property owned by Conn, Sherrod. Appel-lee, Tri-Electric, filed a cross-action against Barnett Electric Company and Conn, Sher-rod, as cross-defendants, for sums owed for materials furnished by Tri-Electric for the above properties, for attorney’s fees, and to foreclose its liens.

Trial was before the court without the aid of a jury. The claims of appellant, Conn, Sherrod, against Barnett Electric Company were dismissed with prejudice. It was agreed by the parties that appellee, Tri-Electric, was entitled to judgment against Charles C. Barnett, individually and d/b/a Barnett Electric , Company. The claims between the appellant and Barnett individually and d/b/a Barnett Electric Company and Pan American National Bank were dismissed with prejudice.

The cause of action between Conn, Sher-rod and Tri-Electric proceeded to trial before the court upon stipulated facts and certain documentary evidence. The court rendered judgment for Tri-Electric against Conn, Sherrod in the sum of $4,990.58; for attorney’s fees in the sum of $750; and for foreclosure of its respective liens on appellant’s properties. Only appellant, Conn, Sherrod, gave notice of appeal. Therefore, the judgment of the trial court, disposing of the other parties in the court below, is final.

The court found, in its findings of fact and conclusions of law, based upon the stipulated facts, that Tri-Electric substantially complied with the pertinent provisions of the Hardeman Act in perfecting its liens against the two parcels of property here involved, and had a valid lien on the property referred to in this cause as the “Wood-bury Square Apartments” in the sum of $2,468.89, and against the “Gardendale Project” in the sum of $2,521.69, and was further entitled to attorney’s fees in the sum of $750.

It is undisputed that in 1974, Conn, Sher-rod, as owner and its own general contractor, began constructing improvements on these two of its properties. Contracts were entered into between Conn, Sherrod and Barnett Electric Company to do the electrical work on said projects. It is undisputed that the goods, wares and merchandise to be used in said projects were purchased from Tri-Electric and that the bills were owing on both projects.

On November 13, 1974, appellee’s notices of claim on each project, in the respective amounts set out above, were received by appellant by certified mail. On January 24, 1975, Tri-Electric filed an instrument entitled “Lien Affidavit and Claim” against each respective property and two copies of each document were timely received by Conn, Sherrod and its attorney by certified mail. Such documents were duly recorded in the Builder’s and Mechanic’s Lien Records of Bexar County, Texas. The respective attestations to the lien affidavits and claims reflected an “acknowledgment” rather than a “jurat.”

On April 3, 1975, an “Affidavit of Correction” was filed and recorded in the Builder’s and Mechanic’s Lien Records of Bexar County, Texas, and two copies of such affidavit were received by Conn, Sherrod by registered mail prior to trial. The Affidavit of Correction provided the sworn verification to the claims filed on January 24, 1975. The Affidavit of Correction did not amend or change in any respect the allegations or amounts contained in the original recorded claims.

The trial judge concluded that, as a matter of law, Tri-Electric had complied with the pertinent provisions of the Hardeman Act (Articles 5452-5472d, V.T.C.S.) in perfecting its liens. Conn, Sherrod, in its first three points of error, attacks this holding.

The facts are relatively undisputed as to the conduct of the parties in this suit. Upon the trial, appellant sought to have each of the lien affidavits declared null and void and of no force and effect and such liens removed from said properties, on the basis that the lien affidavits were defective inasmuch as they were not sworn, but were merely acknowledged. Conn, Sherrod also contended that the Affidavit of Correction was not timely filed. Conn, Sherrod makes these same contentions on appeal.

Art. 5455, V.T.C.S., Form of Claim, provides in part:

“An affidavit claiming a lien filed for record by any one claiming the benefit of this Act shall be signed by the claimant or by some person on his behalf and shall contain in substance the following:
a. A sworn statement of his claim, including the amount thereof. A copy of the written agreement or contract, if any, may be attached at the option of the claimant.” (Emphasis added.)

Where an instrument filed for purpose of claiming a lien on property, under the Hardeman Act, bore an acknowledgment but no jurat, such instrument was not an “affidavit” within the statute (Art. 5453, V.T.C.S.) requiring one who seeks to secure such lien to file an affidavit. Art. 23, subdivision 18, V.T.C.S.; Crockett v. Sampson, 439 S.W.2d 355 (Tex.Civ.App. — Austin 1969, n. w. h.).

It is apparent from a reading of the instruments that each “lien affidavit” is not an affidavit but a statement filed with only an acknowledgment. Neither has a jurat on it. A “jurat” is not the same as an “acknowledgment.” Crockett v. Sampson, supra; Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970). It is, as a matter of fact, undisputed that the attestations to the lien affidavits and claims filed on January 24, 1975, reflected an “acknowledgment” rather than a “jurat.”

We recognize the rule that mechanic’s and materialmen’s lien statutes of this state will be liberally construed for the purpose of protecting laborers and materi-almen. Hayek v. Western Steel Co., 478 S.W.2d 786 (Tex.1972). Nevertheless, the courts, possessing no legislative powers, may not enlarge or alter the plain meaning of statutory language. Wording in statutes is to be given its literal interpretation when that wording is clearly unambiguous. Mathews Construction Co. v. Jasper Housing Construction Co., 528 S.W.2d 323 (Tex. Civ.App. — Beaumont 1975, writ ref’d n. r. e.); Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154 (1960); Board of Insurance Commissioners v. Guardian Life Insurance Co., 142 Tex. 630, 180 S.W.2d 906, 909 (1944).

The Hardeman Act provides in Art. 5453, V.T.C.S. (Supp.75-76), as follows:

“The lien provided for in Article 5452 may be fixed and secured in the following manner:
1. Every original contractor, not later than one hundred twenty (120) days, and every other person or firm, lumber dealer or corporation, artisan, laborer, mechanic or subcontractor who may be entitled to a lien under this Act, not later than ninety (90) days, after the indebtedness accrues as defined herein in Article 5467, shall file his affidavit claiming a lien . . .”

Article 5453, supra, clearly states that those who are entitled to a lien under the Hardeman Act shall file an affidavit claiming such lien not later than 90 days, after the indebtedness accrues as defined in Art. 5467 of the Act.

As to each of the projects, the indebtedness accrued on November 10, 1974. The purported or defective lien affidavits were filed on January 24, 1975, making such filing within the 90-day period as provided in said statutes. The affidavit of correction was filed April 3, 1975, after such 90-day period had expired.

The “Affidavit of Correction” filed on April 3, 1975, was the first and only affidavit filed in accordance with the provisions of Art. 5453, supra. It was not filed within the 90-day period as required by the statute. The defects in the purported “affidavit liens” filed within the 90 days were in substance and not form. Art. 5453, supra, does not make any provision for a lien to be filed or perfected after the 90-day period has expired. No valid lien was lodged against these properties during the period allowed by law for the filing of a lien affidavit.

Substantial compliance is required when considering mechanic’s and material-men’s lien statutes, including statutes governing affidavits necessary to perfect liens. Mathews Construction Co. v. Jasper Housing Construction Co., supra. It is our considered opinion that the filing of the “Affidavit of Lien” on April 3, 1975, was not a substantial compliance with Art. 5453, supra.

In the Crockett case the Austin Court of Civil Appeals considered, among other articles of the Hardeman Act, Article 5453, supra. The court held that where an instrument filed for the purpose of claiming a lien on a building bore an acknowledgment but no jurat, such instrument was not an “affidavit” within the lien statute requiring one who seeks to secure a lien on property to file affidavits and that the appellee had not complied with the mechanic’s and mate-rialmen’s lien statutes. The lien affidavit in the Crockett case was quite similar to those originally filed in the instant case, and contained an acknowledgment rather than a jurat. As we view the case at bar, we think that the Crockett case is controlling.

In view of our disposition of this case, we do not reach Conn, Sherrod’s fourth point of error complaining of the attorneys’ fees awarded against it.

That portion of the judgment in favor of Tri-Electric Supply Company, Inc., and against Conn, Sherrod & Co., Inc., is reversed and judgment is hereby rendered that Tri-Electric take nothing against Conn, Sherrod.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    METROPOLITAN SAVINGS AND LOAN ASSOCIATION et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12298.
    Court of Civil Appeals of Texas, Austin.
    March 17, 1976.
    Rehearing Denied April 7, 1976.

      Dudley D. McCalla, Heath, Davis & McCalla, Austin, for appellants.
    John L. Hill, Atty. Gen. of Tex., Thomas M. Pollan, Asst. Atty. Gen., Austin, for W. Sale Lewis, Sav. and Loan Commissioner of Texas.
    John J. McKay, McKay & Wash, Austin, for Gregg County Sav. and Loan Ass’n.
   O’QUINN, Justice.

The prior opinion of this Court filed November 19, 1975, is withdrawn and the following opinion is filed in lieu thereof.

The Savings and Loan Commissioner of Texas, after hearings in September and November of 1973, entered an order in January of 1974 approving an application for a charter to establish the fourth savings and loan association in Longview, and the sixth charter for Gregg County.

Three established savings and loan associations in Gregg County, opposing the application before the Commissioner, appealed to district court in Travis County. The trial court, in November of 1974, entered judgment affirming the order of the Commissioner.

Appellants are Metropolitan Savings and Loan Association, Kilgore Savings and Loan Association, and Longview Savings and Loan Association, institutions opposing the application for the proposed Gregg County Savings and Loan Association.

Appellants bring four points of error under which three principal attacks are made on the order of the Commissioner. In the main appellants claim relevant and admissible evidence was excluded and that incompetent evidence was admitted; also that the order is not reasonably supported by substantial evidence. Appellants further urge that the order is not in compliance with Section 11.11(4) of Article 852a, V.A.T.S., requiring that findings of fact in the order be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

We will reverse the judgment of the'trial court and remand the proceeding to the Commissioner.

Hearings were conducted for the Commissioner by a hearing officer whose rulings on admissibility of evidence are under attack by appellants. Applicants for the charter relied significantly on the testimony of Dr. Robert Branson of Bryan, and this reliance is evidenced by the extent to which the order of the Commissioner reviews the witness’ testimony.

In qualifying Dr. Branson as an expert, in order that his opinions and conclusions might be offered, it was shown that the witness had testified in an earlier and separate hearing in which he employed certain tests and ratios to measure the performance of existing associations, thereby to test the need for a new association in the same area. In that hearing the witness had undertaken to demonstrate the need for a new association in a given county by relating that county to other comparable counties in Texas. These tests by Dr. Branson included Gregg County as comparable to the subject county.

A series of tables developed by Dr. Bran-son in the earlier hearing, in which he had compared Gregg County to the subject county, was offered by appellants and, over objection, was admitted by the hearing officer. This evidence, termed Exhibit 3, demonstrated effectively the methodology applied by Dr. Branson in using at least three ratios. Ratio One related to “buying income per association,” under which need for a new association might be found if the associations in the subject county should have higher “buying income per association” than found in the counties compared. Ratio Two concerned “savings and loan assets per capita,” and under this test need for a new association might be found if the institutions of the subject county had the lowest asset per capita figure. Ratio Three was termed “buying income to savings and loan assets,” and under this test the subject county might need a new association if existing associations in the subject county had the highest ratio of income to assets, when compared with the other counties.

With the tables previously developed by Dr. Branson before the hearing officer, appellants then sought to introduce through Dr. James R. Vinson, an expert witness for appellants, the results found when Dr. Branson’s ratios were applied to economic conditions, existing at the time of the hearing, in Gregg County and the counties compared with Gregg County. The hearing officer excluded this evidence, termed Exhibit 34.

In summary, the evidence found in Exhibit 34 demonstrated that under the ratios and tests developed and approved by Dr. Branson, when used by Dr. Vinson to test the need for a new association in Gregg County, an additional association in Gregg County could not be justified by any one of the three ratio tests.

The record reflects that Exhibit 3 was admitted for the purpose of showing “whatever the procedure . . . [Dr. Branson] may have used in the past to compute what he felt were necessary elements of the charter application.” At the hearing Dr. Bran-son conceded that the factors found in Exhibit 3 were still relevant to the Commissioner’s consideration of the application. But current information, prepared by Dr. Vinson for appellants, which tracked Dr. Branson’s methodology found in Exhibit 3, and applied it to the application under consideration, was excluded when Exhibit 34 was rejected by the hearing officer and excluded from consideration by the Commissioner.

The exclusion of Dr. Vinson’s evidence in Exhibit 34 precluded the Commissioner’s consideration of evidence showing that in accord with methods employed by Dr. Bran-son no need for an additional savings and loan association in Gregg County had been demonstrated.

The Savings and Loan Act, as well as the Rules and Regulations adopted by the Savings and Loan Section of the Finance Commission, require that interested parties shall be accorded opportunity to present evidence and argument on all issues and that the Commissioner make his determination on all pertinent information. (Sec. 11.11(2), Art. 852a, V.A.T.S.; Rules & Regulations, sec. 1.8). The evidence excluded was relevant to the ultimate determination to be made by the Commissioner. In refusing its admission, the hearing officer denied appellants a basic right and withheld from the Commissioner matters proper and essential to performance of his statutory duty.

Other and additional erroneous rulings were made by the hearing officer, both in excluding evidence that should have been admitted and in admitting evidence that was incompetent. In general, it may be stated that the hearing officer established a fairly consistent pattern of admitting any evidence, whether competent or not, if it tended to support the application, but with equal consistency excluded relevant evidence in rebuttal, or tending to show no need in Gregg County for an additional association, even when such evidence was competent. The exclusion of the proper testimony tendered by appellants is sufficient basis to void the Commissioner’s order.

One example of the hearing officer’s conduct is found in the exclusion of an exhibit prepared by Dr. Vinson based in part upon information obtained by him from an association in Gladewater. The exhibit was admissible as part of Dr. Vinson’s study, but was excluded on objection that it was hearsay. This was error. Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex. Sup.1972). Yet the hearing officer admitted into evidence information gathered by Dr. Branson from a pamphlet containing data “gathered from diverse sources,” concerning which the authors or publishers warned, “Accuracy cannot be guaranteed . to all entries.” Grounds for admitting the pamphlet, as stated by the hearing officer, was “. . . the expert’s testimony may be based upon whatever sources he wish to deem [sic] . On examination, Dr. Branson admitted the information was not reliable.

Appellants present other points of error, directed in the main to defects in the order of the Commissioner. Attack is made on the order because of its reliance on recitations of non-comparable data, used to show the need for a new association, and inclusion of erroneous data not found in the evidence. For example, the order compares savings increases between the two existing Gregg County associations as compared to the increases statewide. However, in doing so, the Commissioner compared the savings increases of the statewide associations for a nine month period with the increases of the local associations for a ten month period. Obviously, figures derived from different time periods would present a distorted picture of the relative economic changes.

Another example of erroneous comparisons of data in the Commissioner’s order is the comparison of the percentage of deed of trust recordings held by savings and loan associations in Gregg County as opposed to the percentage held by associations nationwide. The national figures include sales and assignments of loans but the local figures do not. Again, this renders the comparison without meaning because different factors are included in each group of figures. Further, there was no evidence that a comparison of national averages with Gregg County would show a need for an additional association in Gregg County. Yet the Commissioner’s order dismisses certain presentations of national averages by the protestant on the ground that they are “not comparable.” But the order itself relies upon similar comparisons of non-comparable data presented by the charter applicant.

The Commissioner’s order also recites data that is misleading or erroneous in support of the findings. The order states that there is a need for a new association because existing associations make no FHA or VA loans, whereas the applicant proposes to do so. In support of this finding the Commissioner relies upon testimony by one local realtor who “has had to” turn his clients FHA business to mortgage companies. The clear implication from this testimony is that the existing associations refuse to make FHA loans. The realtor’s reason, however, for referring FHA loans to mortgage companies seems to be a matter of personal preference, rather than necessity, since he has a mortgage lender as a tenant. There was no showing that of the other 250 realtors in Longview any other realtor had to seek FHA loans elsewhere. In fact, the evidence shows that First Federal Savings and Loan does make home loans.

Another material distortion is evident in the order in which it is stated that an existing association charges “three points” on FHA loans, whereas applicants propose to charge only “one point.” The order fails to make clear that the “three points” referred to are “discount” points, which are essentially different from an “origination” point. The record further shows that Kil-gore Savings and Loan does not charge any points on its conventional loans.

The Commissioner’s order recites that 6.33% of personal income in Gregg County flowed to savings and loan savings, whereas, for the state, the flow was 3.47%. The percentages used by the Commissioner are inaccurate because the 6.33% figure was derived from a formula which included savings from areas outside Gregg County (which savings amounted to 10-15 percent of their business).

We have examined the record with care and conclude that the errors committed during the hearing clearly show an abuse of discretion by the Commissioner. Furthermore, the order fails to set forth substantial evidence to support the Commissioner’s finding. Nor does the order include findings of fact and conclusions of law on all issues material to the decision reached, in violation of Article 11.11(4) of the Savings and Loan Act.

The judgment of the trial court is reversed, and the proceeding is remanded to the Commissioner with instructions to deny the charter application.

Reversed and remanded with instructions.


author: O’QUINN', Justice.

text:
    Alfred STEAHR et ux., Appellants, v. C. M. CLARK et al., Appellees.
    No. 12380.
    Court of Civil Appeals of Texas, Austin.
    March 17, 1976.
    Allan I. Schneider, Giddings, for appellants.
    Carey B. Boethel, Giddings, for appellees.
   O’QUINN', Justice.

Appellees brought this suit to enjoin appellants from fencing and otherwise obstructing a roadway twenty feet wide adjacent to the tracts of land belonging to the several parties and claiming a prescriptive right to use the roadway for purposes of ingress and egress.

Based on a jury’s answers to special issues, the trial court entered judgment for appellees, enjoining appellants from obstructing the roadway and ordering removal of obstructions erected by them.

It appears undisputed that the roadway in question was used as far back as 1925 by a large number of persons living in the community, but that use by the public ceased in the late 1940’s or early 1950’s. The jury found that,if the roadway was ever used by the general public, it “was abandoned by the public.” The record shows that the roadway, at its most southerly beginning, originated at a county road, and projected easterly along the south boundary of the Steahr tract and then northerly between the Steahr tract and the Clark land. The disputed portion of the roadway terminated at the south boundary of the “Dodson Tract,” now owned by four of the plaintiffs below, at a point where the Steahr and Clark tracts are adjoining the “Dodson” land.

Steahr undertook in 1974 to close the roadway and construct a fence along a line indicated by a surveyor to be near the center line of the old roadway. The owners of the “Dodson” tract and Clark jointly brought this suit to enjoin Steahr permanently from obstructing the roadway and to require removal of such fence as he had already placed in the road area.

In response to special issue No. 3, inquiring whether “plaintiffs held exclusive, peaceable, notorious and adverse use of the roadway ... by traveling it and using it for general purposes of ingress and egress for a period of ten (10) years or longer prior to September, 1974,” the jury answered in the affirmative.

On motion of appellees, the trial court, “upon the basis of the' jury’s answer to special issue No. Three,” entered judgment enjoining appellants from obstructing the roadway, directing them to remove fencing and other obstructions, and to restore the roadway to render it passable. Appellants bring six points of error. We will overrule such points as we consider, and will affirm judgment of the trial court.

Under the first two points appellants claim error of the trial court in submission of special issue No. 3, a controlling issue, and the accompanying definitions. The record does not disclose that appellants made timely objection in writing to submission of the issue or the definitions. Objections made for the first time in a motion for new trial or on appeal are made too late for consideration, and are therefore waived by the objecting party. Allen v. American National Insurance Company, 380 S.W.2d 604, 609 (Tex.Sup.1964); 3 McDonald: Texas Civil Practice, sec. 12.27.2, p. 403 (Rev.1970); Rules 272, 274, Texas Rules of Civil Procedure.

Under their third point appellants contend it was error to enter judgment for appellees because the jury, in response to special issue No. 4, found that the public had abandoned whatever use, if any, it had made of the roadway. This contention is without merit. In answering special issue No. 1, the jury found in effect that the roadway was not used by the public generally during ten years prior to 1974-. The record shows that appellees did not claim their prescriptive right by reason of sharing use with the public. -A finding that the public had abandoned whatever right it might have had in the roadway is not inconsistent with, nor in conflict with, the claim of appellees, for it is elementary that to establish their right, appellees were required to show only that their use was exclusive in them and not that they shared its use with the general public. 21 Tex. Jur.2d, Easements, sec. 29, p. 156 (1961). The point of error is overruled.

Points four and five are directed to the evidence, under which it is contended that there was no evidence and insufficient evidence to support the finding that appellees had acquired a prescriptive right to the roadway. The evidence offered by appel-lees, although in some respects refuted by evidence from appellants, established open, adverse, exclusive, and continuous use of the roadway by appellees and their predecessors in title for a period in excess of ten years. Appellants had notice of the adverse claim to use such land of appellants as was required in traveling the twenty-foot lane to reach their lands, and that their use was not by reason of license or permission from appellants. Appellees also showed they never abandoned the use they made of the roadway.

In considering the “no evidence” point, we have considered only the evidence favorable to appellees, and in regard to the point on insufficient evidence we have reviewed all the evidence. Appellants have failed to meet their burden to show that the finding of the jury was contrary to the overwhelming preponderance of the evidence. Hulsey v. Drake, 457 S.W.2d 453, 460 (Tex.Civ.App. Austin 1970, writ ref. n. r. e.). We hold that the record contains evidence of probative value sufficient to support the finding of the jury that appel-lees held exclusive, peaceable, notorious and adverse use of the roadway by using it for ingress and egress for ten years or more prior to the time appellants sought to fence and obstruct the roadway.

Although the record shows that some of the critical fact issues were sharply contested at the trial, it is settled that the jury is the exclusive judge of the controverted issues of fact raised by the evidence. The jury is vested with the exclusive role of judging the credibility of the witnesses testifying at the trial, the weight to be given the evidence, and the inferences to be drawn from it. In the exercise of this function the jury may believe the testimony of some witnesses and decline to accept as credible the testimony of others. Bradford v. Fort Worth Transit Company, 450 S.W.2d 919, 928 (Tex.Civ.App. Fort Worth 1970, writ ref. n. r. e.).

Under their sixth and final point appellants claim the court erred in entering judgment favorable to appellees because appel-lees failed to plead and prove identity of the roadway on the ground. Appellants filed special exceptions in the trial court to appellees’ pleadings with respect to location and definition of the roadway in their original petition, after which appellees filed their first amended original petition and attached an exhibit, consisting of a map drawn to scale, locating and defining the roadway and adjacent tracts of land. Appellants did not except to the amended pleadings. Later in the course of the trial appellees introduced a map drawn to scale through a witness who testified to description of the roadway and its location with reference to fence lines and adjacent properties.

By failing to except to the amended pleadings, and to bring exceptions to the pleadings to the attention of the trial court, appellants waived their right to complain on appeal. Mizell Construction Company & Truck Line, Inc. v. Mack Trucks, Inc., 345 S.W.2d 835, 838 (Tex.Civ.App. Houston 1961, no writ); Rule 90, Texas Rules of Civil Procedure.

Evidence introduced at the trial clearly defined the roadway and its location in relation to the property of all parties. It appears from the evidence that the roadway is not of uniform width throughout its length. It was not necessary that the roadway be described by metes and bounds, if described in some other definite way; nor is it required that a specific width be alleged. Sassman v. Collins, 53 Tex.Civ.App. 71, 115 S.W. 337 (Austin 1908, writ ref.); Elias v. Horak, 292 S.W. 288, 290 (Tex.Civ.App. Austin 1927, writ ref.). The sixth point is overruled.

For all the reasons stated, the judgment of the trial court is in all things affirmed.

Affirmed.

      . Appellees who were plaintiffs-bélow are C. M. Clark, owner of a tract east of the roadway, and Maggie E. Woodfork and Edna Stykes, owners of a tract north of the roadway. Appellants who were defendants below are Alfred Steahr and wife, Tracy Steahr, owners of a tract west of the disputed portion of the roadway. The transcript fails to disclose how and at what time Wright W. Betts and Everett Betts became parties plaintiff, although they appear in the final judgment and apparently are referred to on appeal in appellees’ brief as Wright Betz, Jr., and Everett Betz.


author: PHILLIPS, Chief Justice.

text:
    Marguerite Emily GRIFFIN, Petitioner, v. Jimmie GRIFFIN, Respondent.
    No. 12398.
    Court of Civil Appeals of Texas, Austin.
    March 17, 1976.

      Charles E. Blackley, Bartram, Reagan & Burrus, New Braunfels, for petitioner.
    Royal K. Griffin, Guerra, Griffin & Clark, San Antonio, for respondent.
   PHILLIPS, Chief Justice.

This is a writ of error from a judgment of the district court setting aside a voluntary. property settlement entered into by the parties when they were divorced in 1973.

The main question presented is whether the trial court erred in declaring null and void, and in setting aside, a prior property settlement agreement entered into by Respondent husband and Petitioner wife, which agreement was adjudged fair and equitable and incorporated by reference into the divorce decree entered by the court. The basis for the court’s subsequent judgment was that the payments required of Respondent to be made to Petitioner under the agreement were alimony which is contrary to the laws and the public policy of the State of Texas. We reverse that judgment and remand the case.

Petitioner and Respondent, formerly husband and wife, and the parents of three children, were divorced in 1973. Under the terms of the contract mentioned above, Respondent agreed to pay Petitioner 50% of his future net monthly salary until maturity of the youngest of the three children. Of this amount, 65% would ■ be for child support and 35% for the personal benefit of Petitionér. When the youngest child reaches maturity, the agreement provides that Respondent is to pay the sum of $500 per month to Petitioner for as long as she remains single.

In April, 1975, Respondent husband brought suit in the district court of Comal County, seeking a change in child custody, a reduction in the amount of his child support obligation, and the setting aside of the aforementioned property settlement agreement. Petitioner was duly served, but did not answer or appear at trial, either in person or by attorney. Judgment was rendered declaring the oldest child of Respondent, who had recently married, to be an adult, appointing Respondent as managing conservator of the second of the couple’s children, relieving Respondent of the obligation to pay future child support for these two children, and declaring void as alimony the payments designated for the benefit of the Petitioner under the 1973 property settlement.

Petitioner filed writ of error, maintaining that the trial court erred in setting aside the 1973 property settlement agreement incorporated into the divorce judgment.

The question before us is controlled by Francis v. Francis, 412 S.W.2d 29 (Tex. 1967), which held that contracts to make payments for the support of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State. The Court further stated that amicable settlement by the parties of their property rights should be encouraged, not discouraged, and that such agreements will then have whatever legal force that the law of contracts will give them. Also see Cornell v. Cornell, 413 S.W.2d 385 (Tex.1967); Republic National Bank of Dallas v. Beaird, 475 S.W.2d 344 (Tex.Civ.App.1971, writ ref.).

We cannot agree with Respondent’s contention that property settlement before us provides that the payments are “consideration to the wife” and, consequently, not a distribution of property. From this Respondent reasons that the periodic payments cannot be considered part of the division of the property and were, therefore, correctly described as alimony. In our judgment this argument is without substance. The decree describes the payments to be made pursuant to the property settlement. They are property, a part of the property settlement and subject to the rule announced in Francis and the cases cited above. In Francis the Court described alimony as only those payments imposed by court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce.

We hold that the agreement is valid and binding.

We also set aside that portion of the court’s judgment holding that Respondent has paid $2,956.66, over and above the amount originally required in support payments for the three children. Respondent presented no pleadings to support such a finding and prayed for no such relief. Mullen v. Roberts, 423 S.W.2d 576 (Tex.1968). Additionally, it is clear that Respondent was under a continuing duty to pay child support under the terms of the property settlement until entry of a judgment modifying that judgment, regardless of the residence of the children.

Although we hold that the provision in the divorce judgment for payments to the Petitioner for her benefit is valid and enforceable, we are unable to determine from the record whether or not the agreement allows by its own terms for a reduction of the Respondent’s child support obligations upon the changed conditions found by the district court. We do not reach the issue of whether the district court is empowered to modify contractual child support payments upon finding a change of conditions. Therefore, we reverse the judgment of the district court and remand the case for further proceedings.

Reversed and remanded.

      . Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); 75 A.L.R. 1305 (1931).

      . In this connection see Duke v. Duke, 448 S.W.2d 200 (Tex.Civ.App.1969, no writ).


author: CADENA, Justice.

text:
    Kedrick E. MULLINS, Appellant, v. BEXAR COUNTY HOSPITAL DISTRICT, Appellee.
    No. 15485.
    Court of Civil Appeals of Texas, San Antonio.
    March 17, 1976.
    Rehearing Denied April 7, 1976.

      Aubrey Jay Flowers, San Antonio, for appellant.
    George H. Spencer, Clemens, Weiss, Spencer & Welmaker, San Antonio, for ap-pellee.
   CADENA, Justice.

Plaintiff, Kedrick E. Mullins, appeals from a judgment, rendered by the trial court notwithstanding jury findings favorable to him, denying his claim to recover from defendant, Bexar County Hospital District, damages caused by the fact that plaintiff contracted a thrombophlebitis infection while he was a patient at a hospital operated by defendant.

While plaintiff was being treated at the hospital for gastro-intestinal bleeding caused by an ulcer, it became necessary to give him a blood transfusion. A plastic catheter was inserted into a vein in plaintiff’s left arm, and the catheter was connected by a piece of plastic tubing to the receptacle containing the blood or blood plasma solution which was being introduced into the vein. The equipment for the transfusion and the process of transfusion are both referred to in the testimony as the “intravenous” or “I.V.”

It is undisputed that during the I.V. the vein in plaintiff’s left arm became inflamed at the point where the catheter had been inserted. The condition was diagnosed as “an infectuous thrombophlebitis caused by a staphylococcus,” and the testimony is to the effect that the “supposition would be that the staphylococcus entered through the catheter site — through the intravenous catheter site . . . because the involvement was in the vein proximal to that intravenous site and isolated to that area.”

The jury found that the negligence of the hospital in failing to provide “uncontaminated intravenous instruments” was the proximate cause of the thrombophlebitis.

The action of the trial court in rendering judgment for defendant in the face of jury findings favorable to plaintiff can be sustained only if an examination of the testimony reveals that there is no evidence of probative force supporting the jury’s findings. That is, the only question before us is whether the evidence was of sufficient probative force to raise questions of fact for submission to the jury, regardless of the weight of the testimony supporting findings contrary to those made by the jury. The applicable standard requires that we view the evidence in the light most favorable to the jury findings, indulging any inferences which may properly be drawn from the evidence in support of such findings, and disregarding all evidence to the contrary. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965).

The only testimony concerning the possible source of the infection was given by Dr. Harrington, one of the physicians who treated plaintiff. He was asked a hypothetical question inquiring whether, assuming the existence of facts summarized in the question, in his opinion, “based simply upon a reasonable degree of medical certainty, as to whether or not the IV or the blood that was administered through infusion through the IV was or could have been contaminated and probably caused the thrombophlebitis condition?” Instead of answering this question, the witness asked whether he was being asked if “that’s my assumption?” Counsel then stated, “I want you to give me your opinion as to whether or not this could be a probable cause.” The witness answered, “I think that’s a probable cause, yes.”

A plaintiff seeking to impose liability on a hospital or physician for infection contracted following treatment must, in order to discharge his burden concerning proximate cause, show the source of the infection.

The expert testimony in this case, at best, shows that the infection was probably caused by the contamination of the I.V. apparatus or the contamination of the blood which was being injected into plaintiff. Under these circumstances, the jury could do no more than guess or speculate as to which was, in fact, the cause of the infection, and it was improper to permit the jury to make the choice. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949).

This is not a case where the testimony, effectively eliminated one of the two possible causes. No test was made of the blood being infused, and there is no testimony relating to its condition. Nor is there any testimony whatever pointing to the unster-ile condition of the catheter or the other I.V. equipment as the more probable cause, since no tests were made of the catheter.

It must be’concluded that there is no evidence to support the finding that defendant failed to provide uncontaminated intravenous instruments. •

The judgment of the trial court is affirmed.


author: HALL, Justice.

text:
    Violet M. FOWLER, Appellant, v. Douglas C. BROWN et ux., Appellees.
    No. 5499.
    Court of Civil Appeals of Texas, Waco.
    March 18, 1976.
    Rehearing Denied April 8, 1976.

      E. H. O’Dowd, Robinson, for appellant.
    Walter D. Kettler, Waco, for appellees.
   HALL, Justice.

This appeal was brought to question an order temporarily enjoining the appellant from violating a deed restriction which limits her use of her homeplace to “residential purposes exclusively.” We affirm.

The appellees pleaded, and the evidence shows without contradiction, that they own and reside on Lot 4, Block 3, of the Wie-busch Addition, Part No. one, to the City of Robinson in McLennan County; that the appellant owns and resides on Lot 3, Block 3, of said addition; that duly recorded deed restrictions are in effect in said addition and were in effect when these parties purchased their respective lots; and that restriction number one provides, “All of such lots shall be used for residential purposes exclusively.” Additionally, the appellees alleged that the appellant is preparing to open a business on her lot in violation of the deed restriction and to the appellants’ irreparable damage. The appellant responded with a lengthy answer which we need not detail.

The appellant asserts that there is no evidence of a violation or threatened violation by her of the deed restriction. There is evidence that the appellant wants to operate a retail florist shop at her residence; that she canvassed the neighborhood seeking permission to do so from the other owners in the addition; that after the ap-pellees, through their attorneys, informed the appellant that they disapproved and assured her they would bring legal action to prevent a violation of the deed restriction by her, she took a course in floral designing at a cost to her of approximately $500, and closed in a garage and made other changes in her residence toward accommodating a florist shop at an expense of over $6,000; that her plans call for a retail business which will be 90% delivery and 10% walk-in trade; that the business hours will be from 9:00 A.M. to 5:00 P.M.; and that she expects to profit from the business so that she can supplement her other income. While there is other proof of similar import, this evidence is legally sufficient to show an intended violation of the deed restriction by the appellee.

The appellant pleaded waiver of the restriction, and now asserts that this defense is conclusively established by the proof of other business ventures within and without the subdivision in question. We disagree. “A waiver takes place where one dispenses with the performance of something which he has a right to exact, and occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to reply upon it.” Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958). Violations of restrictions outside the area in question cannot be relied upon as a waiver by the appellees of violations within the area. Davis v. Hinton, 374 S.W.2d 723, 726 (Tex.Civ.App. — Tyler, 1964, writ ref., n. r. e.). The trial court was justified in finding that two asserted violations within the addition relied upon by the appellant to support her contention of waiver are trivial in character in comparison to one she intends. These will not support waiver. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 509 (1944).

The seventh restriction in the deeds provides, “No noxious or offensive activity shall be carried on upon any lot, nor anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.” Because there is no evidence that the appellant’s intended use of her residence as a florist shop would be a “noxious or offensive activity” or a “nuisance to the neighborhood” she says the temporary writ of injunction must fall, asserting in effect that restriction number seven is a limitation on the “residential use only” restriction. We overrule this contention. The appellant’s use of her house as a florist shop would be a business use in violation of the first restriction. The activities condemned in the seventh restriction would not necessarily arise by reason of, or only from, a commercial use of the property. The first and seventh restrictions are each independent. Neither is a limitation on the other. Vaccaro v. Rougeou, 397 S.W.2d 501, 503 (Tex.Civ.App. — Hou., 1966, writ ref., n. r. e.).

Trial courts are endowed with broad discretion to grant or deny an application for temporary injunction, and the narrow question on appeal from such action is whether the order of the trial court constitutes a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). There is no abuse of discretion in the issuance of the writ where the pleadings and the evidence show a probable right of recovery in the applicant and a probable injury to him if the writ is not granted. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). We find no abuse of discretion, here.

The appellant’s points and contentions are overruled. The judgment is affirmed.


author: MOORE, Justice.

text:
    Pamela Jean PATTISON, Appellant, v. Kelly SPRATLAN, Appellee.
    No. 887.
    Court of Civil Appeals of Texas, Tyler.
    March 18, 1976.
    Rehearing Denied April 8, 1976.

      Jerry Mack Hyde, Tyler, for appellant.
    A. D. Clark, III, Dist. Atty., Tyler, for appellee.
   MOORE, Justice.

This is an appeal from a decree of the Smith County Court of Domestic Relations terminating the parent-child relationship.

Appellee, Kelly • Spratlan, instituted suit against appellant, Pamela Jean Pattison, to terminate the parent-child relationship between appellant and her minor children pursuant to Sec. 15.02(1), Texas Family Code. As grounds for termination appellee alleged that appellant had executed an irrevocable affidavit of relinquishment of parental rights as provided in Sec. 15.03 of the Code. The affidavit of relinquishment signed by appellant was attached to appel-lee’s petition. Appellant answered alleging that the affidavit was signed under duress and therefore void. She alleged that at the time she signed the affidavit of relinquishment she was unable to provide support for her children and went to the Smith County Department of Welfare seeking financial aid and that the Department required her to execute the relinquishment affidavit “before such agency would take such children or render any help or aid” to her.

After a trial before the court without a jury, the trial court found that appellant executed the affidavit of relinquishment of parental rights in accordance with Sec. 15.-03 of the Code. The court further found that termination of appellant’s parental rights would be in the best interest of the minor children and accordingly terminated the parent-child relationship and appointed appellee, Kelly Spratlan as managing conservator of the children. Appellant has perfected this appeal and brings forward five points of error.

By her first point appellant complains that the trial court erred in rendering judgment against her on the basis of the affidavit of relinquishment of parental rights because she contends the relinquishment affidavit was revoked by her prior to trial.

The record is before us by way of transcript only. There is no statement of facts nor findings of fact and conclusions of law. Without a statement of facts we do not know what the testimony was and therefore we are unable to determine whether appellant actually “revoked” the affidavit prior to trial. There is nothing in the record, other than appellant’s allegations in her answer, tending to show that appellant desired to revoke the relinquishment affidavit. Section 15.03(d), Texas Family Code, provides that an affidavit of relinquishment of parental rights which designates the State Department of Public Welfare as the managing conservator of the children is irrevocable. Appellant having executed the relinquishment affidavit designating the Tyler-Smith County Child Welfare Unit as managing conservator, the affidavit was not revocable at the will of appellant because of the last cited section of the Family Code. The decree of termination recites that evidence was heard and finds that appellant executed the irrevocable affidavit. In the absence of a statement of facts showing duress, we must presume in support of the judgment that appellant failed to establish her defense of duress. ' Goodin v. Geller, 521 S.W.2d 158, 159 (Tex.Civ.App. — Waco 1975, writ ref’d n. r. e.); McGlothlin v. Burkett, 518 S.W.2d 252, 253 (Tex.Civ.App. — Eastland 1974, no writ). Accordingly, appellant’s first point is overruled.

Appellant contends by her second point that Sec. 15.03, Texas Family Code, is unconstitutionally vague and overbroad. This contention is without merit. Section 15.03 prescribes the contents of the affidavit to be executed by the relinquishing parent. The section requires that the affidavit of relinquishment contain basic information about the children, parents and their respective circumstances. The information required is extensive in order for the court to be assured that the parent is aware of the nature of the relinquishment of parental rights. See generally, 5 Tex.Tech Law Review, Commentary, 441-444 (1974). The section is neither vague nor overbroad.

Appellant’s third point contends that Section 15.03 is contrary to State and Federal welfare laws. This point is overruled. The statute is not connected, in any way, with State or Federal welfare laws. Insofar as we are able to determine, there is nothing in the section which could be construed to be conflicting with State or Federal welfare laws, nor does the record reveal that the trial court applied the section in a manner contrary to the State or Federal welfare laws.

By her final points appellant complains that the court erred in failing to order the preparation of the statement of facts based upon her affidavit of inability to pay. These points must likewise be overruled. The record fails to show that the affidavit of inability to pay cost was presented to the trial court and there is nothing to show that the trial court failed or refused to rule on her request. Thus, appellant must be held to have waived her right to complain. If the trial court did, in ■fact, fail or refuse to rule on the matter, appellant’s remedy was by way of mandamus. Upon the failure or refusal of the trial court to order the preparation of the statement of facts appellant had a right to seek a writ of mandamus from this court to compel the trial court to order the preparation of the statement of facts. Having failed to seek a writ of mandamus requiring the preparation of the statement of facts, appellant failed to use due diligence and is thus not entitled to a reversal. Scott v. Harris, 52 S.W.2d 286, 287 (Tex.Civ.App.— El Paso 1932, no writ); Jenkins v. Jenkins, 50 S.W.2d 341, 342 (Tex.Civ.App. — Texarkana 1932, writ dism’d).

The judgment of the trial court is affirmed.


text:
    John F. RYAN, Relator, v. Jose M. AZIOS, Respondent.
    No. 15615.
    Court of Civil Appeals of Texas, San Antonio.
    March 19, 1976.

      John F. Ryan, Julio A. Garcia, Laredo, for appellant.
    Roger Rocha, Laredo, for appellee.
   ON REHEARING

CADENA, Justice.

In this original proceeding relator, John F. Ryan, seeks a writ of mandamus compelling respondent, Jose M. Azios, Democratic County Chairman of Webb County, to place relator’s name on the ballot as a candidate for the nomination of the Democratic Party for the office of County Attorney of Webb County in the primary election to be held on May 1, 1976. Leave to file the petition for mandamus was granted on March 12, 1976, and the petition was set for submission and oral argument before this Court on March 17, 1976.

On March 17,1976, this Court granted the petition for writ of mandamus and ordered respondent to place relator’s name on the ballot. The opinion of this Court stating the reasons for granting relator such relief clearly shows that the action was based on the finding that relator’s sworn request that his name be placed on the ballot specifically declared that relator had lived in the State of Texas for 7 years and in Webb County for “2 years.” We concluded that under the holding of our Supreme Court in Baker v. Porter, 160 Tex. 488, 333 S.W.2d 594 (1960), a contention by respondent that relator had not resided in Webb County for at least 6 months, as required by Article 1.05, Tex.Election Code Ann., merely created an issue of fact which could be resolved only by a court, and that respondent had no authority to raise and determine such disputed issue.

Relator is a licensed attorney and represented himself in this proceeding, orally arguing his case before this Court. During his oral argument, relator was asked if his request that his name be placed on the ballot did not contain a sworn statement by him that he had resided in Webb County for 2 years. He answered that it did. Subsequently, in the course of his oral presentation, he stated that he had resided in Webb County for more than 6 months. At this point he was asked from the bench if, in fact, his request for a place on the ballot did not state that he had resided in Webb County for 2 years. He said this was correct.

Attached to the petition for mandamus was a mechanical reproduction of relator’s request that his name be placed on the ballot. The reproduction is of poor quality, but our examination of the instrument led us to conclude that it contained the statement that relator had resided in the county for 2 years.

On March 18, 1976, the day after we granted the petition for mandamus, we learned that, in fact, in his request to be placed on the ballot, relator had included the sworn statement that he had resided in Webb County for 2 months, rather than 2 years. On our own motion, we reopened the case and notified relator to appear before us today, March 19,1976, to show cause why our original judgment should not be set aside.

The printed form for a request to be placed on the ballot reads, in part, as follows: “Length of residence in 1. state — years 2. county_years or months.” In the first blank relator had inserted, with pen and ink, the numeral “7.” In the second blank, concerning length of residence in the county, relator had placed, with pen and ink, the numeral “2.” He had then, again with pen and ink, drawn a line through the words “years or,” so that, in fact, his request to be placed on the ballot contained his sworn statement to the effect that he had lived in the county 2 months, rather than 2 years. The deletion of the words “years or” was not apparent on the face of the copy which relator filed with this Court.

There can be no doubt that during the course of oral argument relator was made clearly aware of the fact that this Court was proceeding on the assumption that his request contained a sworn statement to the effect that he had resided in the county for 2 years. There can be no doubt that relator, an officer of this Court, did not merely stand silent without making an effort to inform us that our impression was not correct, but affirmatively made statements to us assuring that the facts were as we believed them to be. Stated simply, relator, an attorney, made false statements to this Court.

The true facts of the case are that relator’s sworn request to be placed on the ballot contained a sworn statement showing that he had not been a resident of Webb County for 6 months, as required by Article 1.05 of the Election Code. Therefore, under the undisputed evidence which was before the respondent, and which is now before us, relator was not qualified to be on the ballot; respondent was not required to resolve any disputed issue of fact; and respondent had no choice but to reject the request, assuming that Article 1.05 applies to a candidate for the office of county attorney. The decision of the Supreme Court in Baker v. Porter, supra, does not support the issuance of the writ of mandamus.-

Relator contends that the requirements concerning residence which are embodied in Article 1.05 do not apply to a candidate for the office of county attorney. Subdivision 1 of that statute provides that no person shall be eligible to be a candidate for any elected county office unless he will have resided in this State for a period of 12 months, and for six months in the county, next preceding the date of the election. Subdivision 2 makes this requirement inapplicable to any office for which the Constitution or laws of the United States or of Texas prescribe the exclusive qualifications for the office or prescribe qualifications in conflict with those embodied in Subdivision 1.

The office of county attorney is a constitutional office. Tex.Const.Ann., Article 5, Sec. 21. However, there is no constitutional provision establishing residence requirements for the office.

Relator urges that the residence requirements contained in Article 1.05 are not applicable to candidates for the office of county attorney because they are in conflict with the residence requirements established by Article 332, Tex.Rev.Civ.Stat.Ann., which provides:

No person who is not a duly licensed attorney at law shall be eligible to the office of district or county attorney. District and county attorneys shall reside in the district and county, respectively, for which they are elected; and they shall, as soon as practicable after their election and qualification notify the Attorney General and the Comptroller of their postoffice address.

Article 332 imposes only one requirement concerning “eligibility” for the office of county attorney. That sole eligibility requirement is that he be a duly licensed attorney. The residency requirement in the statute does not concern the question of prior qualifications. It refers to what district and county attorneys, as distinguished from candidates for such offices, must do after they have been elected. It simply requires that district and county attorneys, during their terms of office, maintain their residences in the district (in the case of district attorneys) or county (in the case of county attorneys) “for which they were elected. . . .” We conclude that that statute does not address itself to the question of prior residency.

Article 16, Sec. 14 of the Texas Constitution requires that all county officers reside within their counties. This is identical to the residence requirement contained in Article 332, although the constitutional provision adds that failure to comply with such residence requirement “shall vacate the office so held.” If relator is correct in his interpretation of Article 332, it is difficult to justify giving to the constitutional provision a different interpretation. The result would be that the residence requirements contained in Article 1.05 of the Election Code would be inapplicable to candidates for any county office because of the provision of Article 16, Sec. 14 of the Constitution. While the question before us was not discussed by the Supreme Court in Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641 (1950), Chief Justice Hickman said that the provisions of Article 16, Sec. 14 of the Constitution as well as the statutory requirement of six-months’ residency in the county would be read into a statute creating a new county office. 231 S.W.2d at 646. It is clear that the Court did not consider that the residency requirements now contained in Article 1.05 of the Election Code conflicted with the constitutional requirement that all county officers reside within their counties.

Since we find no conflict between the residency requirements of Article 1.05 and the provisions of Article 16, Sec. 14 of the Constitution or Article 332, Tex.Rev.Civ. Qtat.Ann., the case of Luna v. Blanton, 478 S.W.2d 76 (Tex.Sup.1972), relied on by relator, is inapplicable. In Luna there was a clear conflict between the provisions of Article 1.05 and the residence requirements, applicable to state senators, contained in Article 3, Sec. 6 of the Texas Constitution.

Our judgment granting the petition for mandamus and the opinion filed therein on March 16, 1976, are both set aside. The petition for mandamus is denied.


author: COULSON, Justice.

text:
    GLOBE SHOPPING CITY, Appellant, v. Mike WILLIAMS, Appellee.
    No. 1342.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 24, 1976.

      Frank C. Gibbs, III, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellant.
    Bill Pedersen, Jr., Tom D. Rorie, Rorie & Pedersen, Nacogdoches, for appellee.
   COULSON, Justice.

This is a suit for damages for false imprisonment. On July 2, 1973 Mike Williams was apprehended by Shirley Thomas, a loss prevention employee of Globe Shopping City, as he was leaving the store. He was directed to a back room where two other men were present. The three were informed that they had been seen together in the stereo tape department in the act of shoplifting. The two other men were found to have tapes concealed on their persons. Williams and the other men denied knowing each other. Nonetheless, Williams was turned over to a Houston police officer on the complaint of a store detective that Williams had assisted the others in shoplifting. After being led through the store, apparently handcuffed, Williams was taken to the Houston city jail, booked, fingerprinted, photographed and held for five or six hours before being released. The jury found that Williams had been damaged and compensated him for his physical pain, mental suffering, shame, humiliation and fright, and loss of earnings in the past, in the amount of $35,000.

Globe asserts that the jury finding of damages in the amount of $35,000 is so flagrantly excessive in relation to any rational appraisal of actual damages as to clearly show, without an extraneous showing of jury misconduct, that the minds of the jurors were so dominated by improper motives as to make them incapable of rendering a verdict strictly on the evidence introduced. Alternatively, Globe asserts that the jury’s verdict is so excessive in relation to any rational appraisal of actual damages as to require this court to treat the difference as excess and direct remitti-tur in accordance with Tex.R.Civ.P. 440. We affirm the judgment of the trial court.

To bring a case within the rule as stated in World Oil Co. v. Hicks, prejudice or passion must be affirmatively shown. Excessiveness of the verdict in itself does not establish prejudice or passion, unless it is so flagrantly excessive that it can not be accounted for on any other ground. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (1937). Globe argues that the verdict in itself is so flagrantly excessive that it can not be accounted for on any other ground than jury prejudice or passion. After a review of the statement of facts, we disagree.

Mike Williams suffers from a condition of brain damage. He spent the majority of his life in the Mexia State School. At the time he was falsely imprisoned, he was living at his parents’ home and working as a carpet shampooer. After the imprisonment and arrest, Williams suffered severe headaches and became, according to his mother, very emotionally upset. He would withdraw even from his family. Williams testified that as a direct result of his emotional upset following the arrest he lost his job as a carpet shampooer and that because of the arrest he had trouble obtaining employment.

Despite the comparatively substantial nature of the award, we can not say it is excessive under the circumstances of the case and in light of the jury’s considerable discretion in such matters. Black v. Kroger Co., 527 S.W.2d 794 (Tex.Civ.App. — Houston [1st Dist.] 1975, no writ).

Affirmed.

CIRE, J., not participating.


author: STERNBERG, Justice.

text:
    Sam MOORE, Appellant, v. Ray FIELDS, Appellee.
    Court of Appeals of Kentucky.
    Sept. 5, 1975.
    L. Owen Doyle, Jack L. Lewis, Paints-ville, for appellant.
    Eugene C. Rice, Paintsville, Leo A. Mar-cum, Inez, for appellee.
   STERNBERG, Justice.

Appellant is the duly elected, qualified and acting sheriff and appellee is the duly elected, qualified and acting county judge of Martin County, Kentucky. This appeal is from a judgment of the Martin Circuit Court which upheld an order of the Martin County Court removing the appellant from the office of sheriff for having failed to file a faithful performance bond in the time required by KRS 134.230. Sheriff Moore was elected in 1973 and, after executing all bonds required of him, assumed the duties of his office in January, 1974.

KRS 134.230 requires the sheriff annually, before or as of June 1, to execute a new bond. KRS 134.280 provides that in the event the bond required by KRS 134.230 is not timely executed and filed, then and in that event the sheriff shall forfeit his office and the county court may appoint a sheriff to fill the vacancy. The first annual renewal bond came due June 1, 1975. It was not filed by the sheriff nor was it offered to be filed until June 2, 1975. There are other bonds required of the sheriff, however, they are not involved in this litigation. The sole issue on this appeal is directed at appellant’s compliance with the bond required by KRS 134.230.

It is appellant’s contention that he was ready, willing and able at all times subsequent to May 10, 1975, to execute the subject bond but that the county judge made it impossible for him to execute and file the renewal bond by June 1. The amended complaint alleges that KRS 134.280(1) is unconstitutional. At the time the complaint was filed a restraining order was issued. Subsequently, the appellee filed a motion to dissolve the restraining order and the appellant filed a motion for a temporary injunction. With that state of the record, the cause was heard in chief by the circuit judge on June 13, 1975. After an extensive hearing, the court filed its findings of facts, conclusions of law and judgment. The trial judge held that since the sheriff had failed to file his bond until after June 1, the county judge acted properly in declaring the office vacant. As this court views the issue, it is not that the bond was not renewed by June 1 but whether the county judge forestalled the sheriff in the timely filing of the bond. This question was not disposed of by the trial judge. We deem this question pivotal. From a close study of the record, it has been determined that this court can, and we will dispose of it.

The parties tried the case as if all of the allegations of the complaint and the amended complaint were controverted. We, likewise, will consider the issues as having been fully made.

There is much testimony relating to conversations that allegedly took place between the sheriff and the county judge during the months of May and June, 1975, pertaining to the execution of this bond. The trial judge did not, nor does this court deem it necessary in the determination of the issue to decide whether there was this extensive dialogue.

The sheriff, on May 29, 1975, and at all times thereafter, had a completed bond with good and sufficient personal surety in his possession ready to file with the county judge. The county judge was absent from Martin County from noon on Wednesday, May 28, until late Saturday night, May 31. KRS 25.140 provides that the county judge may appoint a pro tem to carry out the duties of that office while the county judge is absent from the county. However, the county judge did not appoint a pro tem. There was no county judge or pro tem in Martin County from May 28 through May 31 to whom the sheriff could have presented his bond. The sheriff was thereby delayed three and one-half days by reason of the hiatus in the office of the county judge. The sheriff offered the bond to the county judge on June 2, which was not only the first work day of June but was the first day that the county judge was back in his office after his journey out of the state. To countenance the action of the appellee in creating a hiatus in his office for three and one-half days immediately preceding June 1 would cloak the county judge with power to veto the action of the electorate of Martin County. This, we refuse to do.

This court is of the opinion that under the circumstances of this case the appellant had done all that he was required to do toward the filing of his KRS 134.230 faithful performance hond. The appellee should have received and filed the bond and made it effective as of June 1, 1975. The order of the Martin County Court dated June 3, 1975, is void.

In view of our opinion, it becomes unnecessary to consider any other issue raised herein.

We reverse the judgment of the lower court with directions to enter a new judgment consistent with this opinion.

All concur.


author: CATINNA, Commissioner.

text:
    Eddie THOMPSON, Jr., Appellant, v. KENTON COUNTY BOARD OF ELECTION COMMISSION et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 19, 1975.
    Rehearing Denied Oct. 29, 1975.
    Certiorari Denied Jan. 26, 1976.
    See 96 S.Ct. 873.

      Eddie Thompson, Jr., pro se.
    Richard S. Nelson, Robert E. Ruberg, Covington, for appellees.
   CATINNA, Commissioner.

Eddie Thompson, Jr., appeals from an order of the Kenton Circuit Court, Third Division, dismissing his action contesting the primary election of city commissioners for the City of Covington, a second-class city with a city-manager form of government.

Thompson was an unsuccessful candidate for nomination to the office of city commissioner for the City of Covington in a primary election held for that office on May 27, 1975. Subsequent to his defeat, he filed a contest action against the Kenton County Board of Election Commission and individual members of the board, seeking to have the primary election invalidated. Upon motion of the defendants, this action was dismissed on the ground that there was no statute permitting the contest of such an election.

The right of a candidate to contest a primary election is one that must be established by statutory authority, given either expressly or by implication. Dodge v. Johnson, 210 Ky. 843, 276 S.W. 984 (1925).

KRS 89.440, in providing for the manner of nomination and election of commissioners in cities of the second class, contains no express provision that would permit the contest of any primary election for such office, nor does it by implication grant such authority.

KRS 120.055 outlines the procedure that must be followed for the contest of a primary election. Parties permitted to contest such primary elections are said to be those candidates for the nomination to office at a primary election held under the provisions of KRS 118.015 to 118.035 and KRS 118.105 to 118.255. However, KRS 118.105(4) provides:

“This chapter does not apply to candidates for * * * commissioner in cities of the fourth class operating under the commission form of government and in cities of the second, third or fourth class operating under the city manager form of government.”

Hence, there is absolutely no statutory authority for the contest of a primary election for commissioner of a city of the second class with the city-manager form of government.

The judgment is affirmed.

REED, C. J., and CLAYTON, JONES, PALMORE, STEPHENSON and STERN-BERG, JJ., concur.

LUKOWSKY, J., not sitting.


author: GARDNER, Commissioner.

text:
    David G. KILFOILE, Appellant, v. Donna Maria SHERMAN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.

      George K. Harris, Radcliff, for appellant.
    James M. Collier, Elizabethtown, for ap-pellee.
   GARDNER, Commissioner.

Appellant’s complaint for recovery for personal injury in an automobile accident was dismissed because the action was not brought within one year from the date of the injury. KRS 413.140(l)(a). Appellant contends that since he was a member of the armed services at the time of the accident and at the time of the filing of the complaint, running of the statute of limitations of Kentucky was tolled by 50 U.S.C. App. section 525 (Soldiers’ and Sailors’ Civil Relief Act), which provides:

“The period of military service shall ' hot be included in-computing any period ■now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, nor shall any part of such period which occurs after the date of enactment of the Soldiers’ and Sailors’ Civil Relief Act Amendments of 1942 (Oct. 6, 1942) be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax or assessment.”

We do not find whére this court has interpreted the federal statute as it might apply to the Kentucky statute of limitations. Other jurisdictions have accepted the federal statute at face value and have not seriously questioned its validity in suspending the running of limitations by or against persons' in military service. See Warinner v. Nugent, 362 Mo. 233, 240 S.W.2d 941, 26 A.L.R.2d 278, 287 (1951); Campbell v. Rockefeller, 134 Conn. 585, 59 A.2d 524 (1948); Blazejowski v. Stadnicki, 317 Mass. 352, 58 N.E.2d 164 (1944); Ray v. Porter, 464 F.2d 452 (6 Cir., 1972).

It is our opinion that the federal statute is valid, and by its unambiguous terms appellant’s right of action was not barred by KRS 413.140(l)(a).

Appellee also contends that appellant’s failure to provide a memorandum supporting his position that the federal statute was applicable, as directed by the trial court, constituted a waiver of his right to rely on the federal statute. We disagree.

The judgment is reversed and the case remanded for proceedings .consistent with this opinion.

All concur except LUKOWSKY, J., who did not sjt.,


author: PALMORE, Justice.

text:
    Dottie Frances CHANDLER, Appellant, v. William CHANDLER, Appellee.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    C. B. Creech, Creech, Hogg & Williams, Ashland, for appellant.
    James P. Stavros, Wilson & Stavros, Ash-land, for appellee.
   PALMORE, Justice.

By an agreement incorporated therein the judgment dissolving the marriage provided that the mother, Dottie Chandler, “shall have the care, custody and control of the parties’ child, William Paul Chandler, age 272, and the Second Party [William Chandler, the father] shall have reasonable visitation rights.” It was entered on August 2, 1974.

On October 30,1974, on its own motion ex parte, without any notice or hearing, the trial court entered an order redocketing the proceeding and, “Upon the basis of information received by the Court,” determined that the best interests of the child would be served by transferring its custody to “the Paternal Grandparents of said child,” whereupon it was so directed. A copy of this order was mailed to and received by the child’s mother.

Meanwhile, on October 26, 1974, at Cleveland, Ohio, where Dottie was seeking employment, she and William signed an agreement specifically recognizing that the child “is in the legal custody of Dottie Chandler and will remain as such,” but transferring temporary custody to the father “until Dot-tie Chandler has defínate [sic] plans for Billy’s care. Such as (1) In the event Dottie returns to Ky. to live permanently. (2) Dottie has proper facilities available for Billy’s care while she works and (3) In the event that Dottie remarries.” Testifying later, William explained that he had come to Cleveland at Dottie’s request to get the child and that he signed the agreement because “I figured I would have to sign it for to get him back or I would get picked up for kidnapping.”

On December 26, 1974, Dottie moved for an order returning custody of the child to her. In response, William asserted that by an order of the Boyd County' Court dated November 20, 1974, his father and mother had been appointed as guardians for the child, and that Dottie had been notified but had not appeared at the hearing on their application for such appointment. The motion was denied without a hearing, but upon a renewal the trial court held a hearing and then entered findings of fact, conclusions of law and a final order again denying the motion.

It would be very helpful, and might sometimes obviate the time and expense of appeals, if lawyers and judges would pay some attention to the statutes governing matters of this sort. The statute applicable to this proceeding is KRS 403.340. It sets forth the only way in which a custody decree may be modified within two years after its date. This record discloses no semblance of compliance with it.

There was no authority for the order of October 30,1974, and the fact that Dottie received a copy does not legitimate it.

There has been no motion by either party that the judgment of August 2, 1974, be modified, and the final order of the trial court refusing to enforce it was erroneous.

Since there appears to be some confusion as to the nature of a parent’s rights as against those of nonparents with respect to child custody, the rule is that not only must it be shown that the child’s welfare will be better served under the custody of the nonparent, but also it must be found that the parent is not a suitable custodian. Cf. James v. James, Ky., 457 S.W.2d 261, 263 (1970); Bond v. Shepherd, Ky., 509 S.W.2d 528, 529 (1974). Neither KRS 403.-270 nor KRS 403.340 modifies this principle.

The guardianship proceeding in the county court is not relevant to the matter of custody.

The order is reversed for entry of a new order consistent with this opinion.

All concur except LUKOWSKY, J., not sitting.


author: JONES, Justice.

text:
    David PHILLIPS, Appellant, v. Ruth HORLANDER, Appellee.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.

      James H. Waitman, Owensboro, for appellant.
    Mark R. Hutchinson, Owensboro, for ap-pellee.
   JONES, Justice.

On November 18,1973, a son was born to David Phillips and Ruth Horlander. David and Ruth are not now, nor have they ever been married. David has supported his child to the extent of paying the expenses of his birth ($700.00). Further attempts to support the child have been rejected by Ruth, and all attempts at visitation have been refused by her.

David filed an action in the Daviess Circuit Court alleging that he was the father of John Richard Horlander, an illegitimate child, born to Ruth. He alleged also that he had been denied visitation with the child. David sought to be adjudged the father of John Richard Horlander; that he be ordered to pay a reasonable amount to the support of the child and that Ruth be ordered to allow him reasonable visitation privileges with the child.

In her response, Ruth, while not admitting the paternity of John Richard, asserted that under the laws of this Commonwealth, a putative father of an illegitimate child has no right of visitation with that child.

The trial court agreed with Ruth’s contentions. He sustained her motion for judgment on the pleadings. He held that as a matter of law a putative father of an illegitimate child has no legal right to visit with and support the child against the wishes of the natural mother.

From this judgment, Richard filed this appeal.

The sole question presented is whether or not the father of an illegitimate child is entitled to have visitation privileges with the child.

The trial court in his opinion noted:

“At common law the only obligation of a putative father was maintenance. He had no other obligation toward the child and had no rights whatsoever of custody, visitation or support. In all other respects the child, vis a vis the putative father, was a non person. Chapter 406 of the Kentucky Revised Statutes simply codifies the common law by imposing the duty of maintenance, but is silent on the question of rights of the putative father. Courts in other jurisdictions are split on the question.”

Thus, an illegitimate child is often exposed to a hostile environment. This may cause the child to develop symptoms of rejection and inferiority. Every supportive measure must be employed to protect such a child.

This court recognizes that in any case involving visitation, neither the fact of illegitimacy nor the personal preference or prejudices of the parents should control the court’s decision. The governing criterion and the thread that runs so true must always be the welfare and best interests of the child.

In many instances the putative father may instill in the child a sense of stability. He may develop qualities in the child which the mother is uninterested, unwilling or incapable of developing. To the extent that a father can perform such a valuable service his presence becomes exceedingly important.

Other jurisdictions have addressed the matter of the rights of the putative father toward his child born out of wedlock.

In 1967 the District Court of Appeals of Florida stated:

“The courts having occasion to pass upon this question appear to have uniformly held that where a putative father acknowledges his relationship to an illegitimate child, manifests a genuine interest in the child’s welfare and provides it with support, such father should be granted the right to visit the child at reasonable times unless such visits are shown to be detrimental to the child’s welfare.” Mixon v. Mize, 198 So.2d 373 (Fla.App.1967).

The Superior Court of Pennsylvania sustained the proposition that a putative father may be granted the right of visitation with his illegitimate child when the child is in the mother’s custody. Commonwealth v. Bozanski, 206 Pa.Super. 397, 213 A.2d 155 (1965).

Illinois has a statute which defines a parent as:

“The father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, and includes any adoptive parent.”

The terms of the statute treated unwed fathers as nonpersons. Peter Stanley lived with Joan Stanley for eighteen years and had three children by her. Joan and Peter were never married. When Joan died dependency proceedings were instituted by the state of Illinois. The three children were declared wards of the state pursuant to a statute which provided that children of unwed fathers became wards of the state upon the death of the mother.

Peter Stanley appealed, claiming that he had never been shown as an unfit parent.

The Illinois Supreme Court affirmed the district court. The Supreme Court of the United States reversed holding as follows:

“We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause.” Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

This court is of the opinion that now is the time to rend the veil of puritan precepts through which unwed fathers are viewed as nonpersons. To state as a matter of law that the visits of a putative father are always detrimental to the illegitimate child’s best interests is to exalt rule over reality. There is a growing recognition in courts throughout the nation of th : need to determine the welfare of each child in light of his own particular needs and circumstances.

If the biological father of children born out of wedlock has the constitutional right to a hearing before his right to custody is terminated, then it would follow that a biological father of a child born out of wedlock would have the right of visitation with his child.

“A father has a legal right to reasonable access to his bastard child, where he contributes to its support, and there is no showing that such right would be detrimental to the child’s best interests.” 10 C.J.S. Bastards § 17, p. 84.
“The interest of a putative father in the welfare of his illegitimate offspring is sufficient to authorize him to maintain a proceeding to determine the custody of such children, even as against their mother.” Am.Jur.2d Vol. 10, Sec. 62, p. 891.

The judgment is reversed with directions that the trial court conduct a hearing to determine the issues presented by the pleadings.

REED, C. J., and CLAYTON, JONES, PALMORE, STEPHENSON and STERN-BERG, JJ., sitting.

All concur.

STEPHENSON, J., dissents.


author: CULLEN, Commissioner.

text:
    James R. YOCOM, Commissioner, Department of Labor, Commonwealth of Kentucky, and Custodian of the Special Fund, et al., Appellants, v. WORKMEN’S COMPENSATION BOARD, Commonwealth of Kentucky and Dave Morgan, Appellees.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    Asa P. Gullett, III, Cooper, Gullett, Combs & Engle, Hazard, Timothy P. O’Mara, Louisville, for appellants.
    Lester H. Burns, Jr., Burnside, for appel-lee Dave Morgan.
   CULLEN, Commissioner.

The Kentucky Workmen’s Compensation Board made an award to David Morgan, against his employer and the Special Fund in a specified apportionment, for total permanent disability from pneumoconiosis. The order of award was affirmed, on appeal, by a circuit court judgment. The employer and the Special Fund are here appealing from that judgment. The primary contention of the appellants is that Morgan’s claim should have been dismissed, pursuant to the employer’s motion made at the outset of the proceedings before the board, because the claim did not comply with the formal requirements of KRS 342.-316(2)(b)l. Since we agree with that contention it is unnecessary for us to consider the secondary contention that the evidence was not sufficient to support the award.

Morgan’s claim was filed in July 1973. The employer promptly filed notice that the claim would be resisted, and a motion to dismiss the claim for failure of compliance with KRS 342.316(2)(b)l. The board passed to the merits the motion to dismiss and never ruled on it or on a renewed motion made subsequently.

The relevant provisions of KRS 342.316 in effect at the time Morgan filed his claim were as follows:

“(b) The procedure with respect to filing of claims shall be as follows:
1.The application shall set forth the work history of the applicant with a concise description of injurious exposure to a specific occupational disease together with the names and addresses of employer or employers with the approximate date of employment and shall also include with the application two (2) written medical reports supporting his claim. These medical reports shall be made on the basis of comprehensive clinical examinations and shall contain full and complete statements of the results thereof. The reports shall be made by duly licensed physicians. The clinical examinations shall include x-ray examinations. However, the failure of an x-ray examination to disclose the presence of an occupational disease shall not affect the legal presumption referred to in subsection (5) of this section.
2. The filing of a properly executed application for adjustment of claim, accompanied by the two (2) medical reports described in subparagraph 1. of this paragraph, shall satisfy the requirements of the presumptive clause set out in subsection (6) of this section and the burden of proof shall immediately thereafter shift to the employer and the special fund.
3. Immediately upon receipt of said application for adjustment of claim, the board shall notify the affected employer, the special fund and any other interested party of such claim and shall furnish them with a full and complete copy of the claim.
4. Upon receipt of notice of claim the employer, the special fund, and any other interested party shall have the right as provided under KRS 342.021 to have the claimant examined by competent medical experts.
5. Within sixty (60) days of the filing of the claim the employer, the special fund, and any other interested party shall notify the board, and the claimant whether or not the claim will be resisted. If the claim is not resisted, then the board shall within ten (10) days enter an order and award for the claimant. If the claim is resisted, the board shall set a date for a hearing and shall notify all parties thereof. In litigated claims the regular procedures prescribed by the workmen’s compensation board shall be followed.
(5) Where the occupational disease is a compensable pneumoconiosis and there has been employment exposure for 10 years or more to an industrial hazard sufficient to cause the disability of pneu-moconiosis there shall be a rebuttable presumption that the disability or death was due to the compensable pneumoconi-osis.”

Admittedly, Morgan’s claim did not comply with the requirements of KRS 342.-316(2)(b)l, in that it did not contain two medical reports made on the basis of comprehensive clinical examinations. The question for this court to decide is whether this admitted failure of compliance was fatal to the claim, in that it required the dismissal of the claim (there having been no offer by Morgan to amend the claim to put it in compliance). Questions of this kind usually are discussed in terms of whether the statute is “mandatory” or merely “directory,” but regardless of semantics the true question still is whether the failure to comply with have fatal consequences. The approach to be taken, according to what we think are the better-reasoned cases, is to determine, first, what is the purpose or objective of the statutory requirement and whether it is of material significance, and second, whether the noncompliance in the particular instance defeated that purpose. Cf. Fannin v. Davis, Ky., 385 S.W.2d 321; Bauer v. Alcoholic Beverage Control Board, Ky., 320 S.W.2d 126; Stanfield v. Willoughby, Ky., 286 S.W.2d 908; Board of Barbers & Beautician Examiners v. Mayo State Vocational School, Ky., 259 S.W.2d 452.

Morgan’s contention in the instant case is that the only purpose of the statutory requirement of two medical reports based on comprehensive clinical examinations is to furnish the basis for the presumption provided for in KRS 342.316(2)(b)2; and if (as was the case here) the presumption is not sought to be invoked and is in fact not invoked, the noncompliance with the requirement for medical reports does not defeat the purpose of the statute and should not be cause for dismissal of the claim. We are not convinced, however, that the above-suggested purpose is the only or even the primary one of this statute.

In Young v. Daniels, Ky., 481 S.W.2d 295, in discussing the comparable provisions of KRS 342.316 as they existed under a 1970 amendment, this court said that “it appears that the first goal intended to be achieved was to provide a default judgment procedure.” Without deciding whether the provision of KRS 342.316(2)(b)2 to the effect that a claim in proper form “shall satisfy the requirements of the presumptive clause set out in subsection (5) of this section” has application only in default situations, we think that a significant purpose of the requirement as to the contents of the claim is to enable the employer and/or the Special Fund to make an intelligent, informed decision as to whether to contest the claim or to let it go by default. If the claim includes the required medical reports, the employer or fund knows that the claimant has what appears to be a genuine claim which he can support with medical proof. If the medical reports are not included, the employer or fund is not supplied the information on which to judge the strength of the claim. Therefore, the purpose of the statute is defeated. The purpose obviously was defeated in the instant case because the employer, not having been given the required information, had no real choice other than to contest the claim (and ended up losing the case despite the fact that the claimant’s medical proof on the hearing was less than what the statute required to be included in the claim document).

In Young v. Daniels, supra, this court said that the provision of KRS 342.-316(2)(b)2 that a “properly executed application * * * shall satisfy the requirements of the presumptive clause” was “imprecisely worded” and “confusing.” We think we were too generous; the fact is that the provision is utterly incomprehensible.

The judgment is reversed with directions to the circuit court to remand the case to the Workmen’s Compensation Board for the entry of an order dismissing the claim.

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


text:
    Dean E. COX et al., Appellants, v. Norma P. HARRISON, Executrix with will annexed of Dwight O. Cox, Deceased, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    William S. Cooper, Collier, Arnett, Coleman & Cooper, Elizabethtown, for appellants.
    Paul M. Lewis, Lewis & Bland, Elizabeth-town, David L. VanZant, Huddleston, Van-Zant & Coyle, Elizabethtown, for appellees.
   STERNBERG, Justice.

This case presents the question of whether the will of a nonresident of Kentucky which was executed in such a manner as to meet Kentucky requirements for execution may be probated in Kentucky so as to pass title to real estate located in Kentucky, even though under Kentucky law the will would have been revoked by reason of the testator’s divorce. KRS 394.095.

The devolution of personal property and real estate is universally recognized by the following quotations:

2 Restatement of the Law, Conflict of Laws 2d, Section 239:

“Validity and Effect of Will of Land— (1) Whether a will transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs.”

Section 263:

“Validity and Effect of Will of Movables—
(1) Whether a will transfers an interest in movables and the nature of the interest transferred are determined by the law that would be applied by the courts of the state where the testator was domiciled at the time of his death.”

The devolution of personal property and real estate in Kentucky under these circumstances followed this general policy, but was regulated by statute. KRS 394.150.

KRS 394.150 provided that when the will of a non-resident had been duly proved and probated out of this state an authenticated copy and a certified copy of probate may be offered for probate in this state. When this procedure had been followed, this statute further provided, the will shall be admitted to probate as a will of personalty. On the other hand, this statute provided that in the event the will was proved in the foreign court of probate to have been so executed as to be a valid will of land in this state, the copy may be admitted to probate as a will of real estate.

In Dupoyster v. Gagoni, 84 Ky. 403, 1 S.W. 652, 8 Ky.Law Rep. 392, we held that the language used in this statute required the trial court to decide not only whether there was proof that the foreign will was executed in compliance with Kentucky law but whether the proof offered in the foreign court would have been sufficient to authorize probate of the will if it had been offered in an original proceeding in Kentucky.

The will in question was executed prior to the final decree of divorce. The will was revoked by operation of KRS 394.-095. Inasmuch as the will was revoked by divorce, it could not have been admitted to probate if it had been offered originally in Kentucky. Therefore, under the holding of Dupoyster v. Gagoni, supra, the probate court may not admit this foreign will to probate so as to make disposition of real estate located in Kentucky.

The judgment of the Hardin Circuit Court, dated March 16, 1972, ordering the probate of this will to effect the transfer of both realty and personalty in the Commonwealth of Kentucky is affirmed in part and reversed in part. Insofar as the judgment directs the probate to effect the transfer of personalty, it is affirmed, and insofar as the judgment orders the probate to effect the transfer of realty, it is reversed.

REED, C. J., and STEPHENSON, JONES, PALMORE, CLAYTON and STERNBERG, JJ., sitting.

All concur.

      . This statute was amended in 1972. The amendment eliminates the distinction between personalty and real estate. These present proceedings predate the amendment.