author: McCLOUD, Chief Justice.

text:
    In re W. R. M.
    No. 4857.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 19, 1976.
    Rehearing Denied March 11, 1976.

      James A. Johnston, Johnston & Dixon, Dallas, for appellant.
    Maridell J. Templeton, Asst. Dist. Atty., Dallas, for appellee.
   McCLOUD, Chief Justice.

This case involves waiver of jurisdiction by a juvenile court and transfer of a child to the appropriate court for criminal proceedings. V.T.C.A., Family Code, § 54.02. The State filed a petition seeking discretionary transfer of appellant, W. R. M., to the appropriate criminal court for prosecution as an adult, alleging that appellant murdered Jimmy Dan Feemster in the course of an aggravated robbery and attempted to murder Sandra Whalen by shooting her at the time of the robbery. The juvenile court entered an order waiving jurisdiction and transferring appellant for criminal proceedings. The child has appealed. We affirm.

Appellant first argues the juvenile court committed reversible error by not ordering the prosecuting attorney to permit appellant’s attorney to inspect the “prosecution report” contained in the prosecuting attorney’s file. Appellant contends Section 51.14(a) gives his attorney an absolute right to inspect the report. We disagree. Section 51.14 is not a discovery provision. It is clearly designed to preserve the traditional confidentiality of files and records concerning juvenile proceedings. Texas Family Code Symposium, 5 Tex.Tech.L.Rev. 533 (1974). Although the report in question is not contained in the record, it is apparent it is a written communication passing between agents or representatives or employees of the State, which was made subsequent to the occurrence in question, and in connection with the prosecution of appellant. The report under the circumstances reflected in the record would be exempt from discovery under either Rule 167, T.R. C.P., or Article 39.14, Vernon’s Ann.C.C.P. Section 51.14 places limitations on public access to files and records concerning juveniles. It does not grant a child’s attorney the right to inspect the work product of the State. Appellant’s point is overruled.

Appellant next argues the court erred in failing to obtain a full investigation into the circumstances of the alleged offense. Section 54.02 provides:

“(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
(e) At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. At least one day prior to the transfer hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the transfer decision . .

The trial court entered an order pursuant to Section 54.02. John Gee, a probation officer, was delegated the responsibility of providing the court with a complete diagnostic study, social evaluation and full investigation of the child, and the circumstances of the offense. He caused a diagnostic study to be made by a psychologist. The court also ordered a psychiatric examination. The psychologist and psychiatrist each prepared full reports. The probation officer made a social evaluation through personal investigation and discussion with appellant, his parents, and previous probation officers. His investigation into the alleged offense consisted primarily of reviewing the prosecution and offense reports of the Dallas Police Department. The case summary prepared by the probation officer covered the personal history of appellant, his referrals to the juvenile department, and information on the incident in question. The information regarding the incident in question was deleted from the probation officer’s report at the request of appellant. At the hearing, Lloyd G. Ritchie, a member of the Dallas Police Department, testified that he investigated the death of Jimmy Dan Feemster and the attempted murder of Sandra Whalen. He interviewed Sandra Whalen and learned that the murder of Feemster and the attempted murder of Sandra Whalen occurred during a robbery. He testified a handgun was used. Ritchie stated he spoke with a witness who drove appellant to the scene where the robbery, murder, and attempted murder took place. He testified a handgun was recovered when appellant was arrested and the driver’s license of the deceased was recovered from appellant. He stated he had not read the prosecution or offense reports. The probation officer, John Gee, testified and recommended that appellant be treated as an adult.

The thrust of appellant’s complaint is that the investigation reports prepared by the law enforcement officers were not seen or reviewed by the court. He argues there was no “full investigation” as required by the statute. We overrule appellant’s contention and hold that the investigation complied with the statute.

Appellant next attacks the order entered by the court, and says it contains improper conclusions as to the reasons for waiver.

Section 54.02(h) provides:

“If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings . .

Section 54.02(f) provides:

“In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.”

At the conclusion of the hearing, the court in the instant case stated:

“It is the finding of this Court that the offense alleged here is certainly an offense against a person. I believe the testimony is uncontroverted in that regard.
Also, the Court finds that one person having been deceased and the other one having been injured by gunshot, that that is indicative of aggressive and premedita-tive manner in which the offense was committed.
The Court further finds that the testimony shows that the injured individual has made a personal identification by virtue of a photograph of the child in question. That, coupled with the balance of the testimony, the rest of the testimony as shown here today, would lead this Court to believe it could reasonably be expected that an indictment would be returned by a grand jury.
The Court further finds that (W. R. M.) herein had sufficient knowledge and sophistication to properly aid his attorney in his defense and also has been under supervision of this Court, the Juvenile Department, since about March 1972, for one cause or another; three prior incidents were of a felony nature, not including the one that’s made the basis of this hearing and that he has a record of previous offenses which lead this Court to believe that he has sufficient sophistication and maturity to understand the consequences of his acts.
The Court further finds that the prospect of adequate protection to the public is very slim, if not non-existent, under the jurisdiction of the Juvenile Court, in that this young man has already been sent to the custody of the Texas Youth Council, based on prior offenses, and that the general circumstances to protect the public and the facilities currently available to the Court are inadequate for proper protection to the public, and that the likelihood of rehabilitation under the facilities available to the present juvenile system are not adequate.
The Court, therefore, waives jurisdiction and will have the matter transferred to the appropriate District Court for further proceedings.”

The order entered provides:

“The Court finds that said act or acts would be felonies under the penal laws of the State of Texas if committed by an adult. The Court finds that the alleged offenses are against Persons. The Court finds that the alleged offense was committed in a premeditated and aggressive manner.
The Court finds that there is evidence upon which the Grand Jury may be expected to return an indictment regardless of the youthful age of' the said (W. R. M.)
The Court finds that the child is of sufficient sophistication and maturity to be tried as an adult. The Court specifically finds that the child is of sufficient sophistication and maturity to aid an attorney in his defense.
The Court finds that because of the record and previous history of the child and because of the extreme and severe nature of the crime, the prospects of adequate protection for the public and the likelihood of reasonable rehabilitation of the child by the use of the procedures, services and facilities currently available to the Juvenile Court are in serious doubt.
The Court after diagnostic study, social evaluation and full investigation, finds that it is contrary to the best interest of said child and the public to retain jurisdiction.
The Court finds that because of the seriousness of the offense and the background of the child, the welfare of the community requires criminal proceedings.”

We hold that appellant has failed to show reversible error. In Re J. R. C., 522 S.W.2d 579 (Tex.Civ.App. — Texarkana 1975, writ ref. n. r. e.) relied upon by appellant is distinguishable. In that case, the order failed to disclose that the court had considered the matters listed in 54.02(f), and also failed to state specific reasons for waiver as required by 54.02(h). In the instant case, the order discloses that the matters listed in Subsection (f) were considered, and the order states specific reasons for waiver. The fact that some of the recitations constitute conclusions does not require a reversal of the court’s order.

Appellant urges that the court erred in conducting the transfer hearing when a petition for adjudication was also on file. On April 23,1975, a petition was filed in the juvenile court alleging that appellant was a child engaged in delinquent conduct. The petition was not dismissed. On April 23, 1975, the State also filed a petition for discretionary transfer to a criminal district court. The State elected to proceed on this petition.

Section 53.04(a) provides:

“If the preliminary investigation, required by Section 53.01 of this code results in a determination that further proceedings are authorized and warranted, a petition for an adjudication or transfer hearing of a child alleged to have engaged in delinquent conduct or conduct indicating a need for supervision may be made as promptly as practicable by a prosecuting attorney who has knowledge of the facts alleged or is informed and believes that they are true.”

Appellant argues this section requires the State to make an election before it files its pleadings as to the type of proceeding it wishes to pursue. We think this issue was correctly decided adversely to appellant’s position in Stockton v. State, 506 S.W.2d 918 (Tex.Civ.App. — Waco 1974, no writ) wherein the court said:

“We find nothing in the Family Code or the Penal Code which prohibits the filing of a petition for transfer, or a hearing thereon, or an order granting the petition, merely because a petition for adjudication was first filed. To the contrary, Sec. 54.02 of the Family Code expressly authorizes the Juvenile Court to waive jurisdiction and transfer a child to the appropriate criminal court for trial if the child was 15 years of age or older at the time he is alleged to have committed a felony offense and ‘(if) n0 adjudication hearing has been conducted concerning that offense,’ provided the Court determines, as it did here, that the welfare of the community requires criminal proceedings. And that portion of Article 30 of the Penal Code relied upon by appellant, when applicable in a case, simply provides a basis for a plea of former jeopardy at the criminal proceeding. See Garza v. State (Tex.Cr.App.1963), 369 S.W.2d 36, 39; Collins v. State (14th Tex.Civ.App. 1968, no writ hist.), 429 S.W.2d 650, 652. Former jeopardy is an affirmative defense. It must be specially pleaded and proved by the defendant in a criminal prosecution, else it is waived. Galloway v. State (Tex.Cr.App.1967), 420 S.W.2d 721, 723; Ex parte Sawyer (Tex.Cr.App. 1965), 386 S.W.2d 275, 280.”

See 1975 amendment to V.T.C.A., Penal Code, § 8.07, regarding former jeopardy.

Appellant asserts that Section 54.02, providing for waiver of jurisdiction and transfer to criminal court, violates Article III, Section 35, of the Texas Constitution, that no bill shall contain a subject not expressed in its title. The caption of Title 3 of the Texas Family Code provides:

“An Act adopting Title 3 of the Family Code, relating to delinquent children, children in need of supervision, and children with mental illness, retardation, disease, or defect; providing procedures for courts, officers and other persons, and agencies and institutions, dealing with such children; placing limitations on public access to hearings and records concerning juveniles; containing other provisions for their protection, care, or rehabilitation; amending Article 30, Penal Code of Texas, 1925, as amended, to conform with Title 3; . . . ” (emphasis added)

Our Supreme Court in Robinson v. Hill, 507 S.W.2d 521 (Tex.1974) said:

“Both the constitutional provision and the questioned statute are to be liberally construed in favor of constitutionality . Art. Ill, Sec. 35, requires only that the title state the general subject; it need not explain the details . .

The caption adequately stated that the statute contained court procedures relative to delinquent children. We hold that appellant has failed to show a violation of Article III, Section 35, of the Texas Constitution.

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.

      . All statutory references, unless otherwise noted, are to sections in the Family Code.

      . § 51.14. Files and Records
      (a) All files and records of a juvenile court, a clerk of court, or a prosecuting attorney relating to a child who is a party to a proceeding under this title are open to inspection only by:
      (1) the judge, probation officers, and professional staff or consultants of the juvenile court;
      (2) an attorney for a party to the proceeding;
      (3) a public or private agency or institution providing supervision of the child by arrangement of the juvenile court, or having custody of the child under juvenile court order; or
      (4) with leave of juvenile court, any other person, agency, or institution having a legitimate interest in the proceeding or in the work of the court.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    ENNIS BUSINESS FORMS, INC., Appellant, v. Leonard F. GEHRIG, Appellee.
    No. 5502.
    Court of Civil Appeals of Texas, Waco.
    Feb. 19, 1976.
    Rehearings Denied March 18, 1976.

      Jackson, Walker, Winstead, Cantwell & Miller, Ralph E. Hartman, Jack Pew, Jr., Dallas, for appellant.
    Burleson, Bondies, Baldwin & Pate, Jack C. Pate, Dallas, for appellee.
   HALL, Justice.

The appellant, Ennis Business Forms, Inc., provides a retirement plan for its employees, including disability retirement, which is wholly funded by the company. Leonard F. Gehrig, the appellee, brought this suit against the appellant, and the individual members of the “retirement committee” who administered the plan, challenging a decision by the committee that resulted in termination of payment of disability retirement benefits to him under the plan. The main issues on the trial were whether the committee’s decision to end Gehrig’s disability benefits was made in bad faith; and whether Gehrig was in fact disabled as that term is defined in the retirement plan. Trial was to a jury which found both bad faith and disability. Upon these findings, judgment was rendered awarding Gehrig a recovery against only the company for (1) disability benefits not paid between the date of their termination and the date of trial, and (2) a sum representing the disability payments Gehrig would purportedly be entitled to receive for the remaining term of the applicable plan provisions. The judgment provided, further, that Gehrig take

nothing against the members of the retirement committee. Only the company appeals.

The company’s pension plan was adopted on January 1, 1957. Normal retirement under the plan begins for an employee when he attains the age of 65 years, or when he complete 45 years service, whichever is earlier. In other pertinent parts the plan provides as follows:

2.4 — DISABILITY RETIREMENT AND RETIREMENT INCOME.

(A) Definition: A participant may retire from the service of the company under the plan if he becomes totally and permanently disabled, as defined in Paragraph (B) of this Section 2.4, on or after the effective date of the plan but prior to his normal retirement date. Such retirement from the service of the company shall herein be referred to as disability retirement.
(B) Total And Permanent Disability: A participant will be considered totally disabled if, in the opinion of the retirement committee, he is disabled, due to sickness or injury, and such disability, in the opinion of the retirement committee, is likely to be continuous and permanent
such that the participant is completely unable to perform any and every duty pertaining to his occupation; provided, however, after such disability has continued for a period of 30 months from its date of commencement, as determined by the retirement committee, such participant shall, for the purposes of this plan, be considered fully recovered from such disability unless at that time, due to such disability, such participant is unable to engage in any reasonable occupation, where “reasonable occupation” means any occupation which other individuals who have an educational background similar to that of the participant, and are in good health, are actually engaged in as their principal means of financial support; and further provided, that at the end of a 66-month period commencing with such date of commencement of disability such participant shall be considered fully recovered for purposes of this plan unless at that time, due to such disability, he is wholly prevented from engaging in any occupation for wage or profit. Any opinion of the retirement committee rendered in accordance with the provisions of this section shall be final and conclusive and shall not be subject to review by anyone.
(D) Proof Of Disability: The retirement committee before approving the payment of any disability retirement income shall require satisfactory proof, in the form of a certificate from a duly licensed physician selected by the retirement committee, that the participant has become disabled as provided herein. Every six months after commencement of disability retirement income, or more frequently, the retirement committee may similarly require proof of the continued disability of the participant.
(F) Recovery From Disability: If the retirement committee finds that the participant who is receiving disability retirement income is, at any time prior to his normal retirement date, no longer disabled, as provided herein, the retirement committee shall direct that the retirement income be discontinued .

5.4 — RULES AND REGULATIONS OF RETIREMENT COMMITTEE.

The retirement committee shall have the authority to make such rules and regulations, and to take such actions as may be necessary to carry out the provisions of the plan, and will, subject to the provisions of the plan, decide any questions arising in the administration, interpretation and application of the plan— which decisions shall be conclusive and binding on all parties. The retirement committee may delegate so much of its authority and duties as it deems expedient.

5.5 — POWERS OF RETIREMENT COMMITTEE.

In order to effectuate the purposes of the plan, the retirement committee shall have the power to construe the plan, to supply any omissions therein, to reconcile and correct any errors or inconsistencies, and to make equitable adjustments for any mistakes or errors made in the administration of the plan, and all such action or determinations made by the retirement committee in good faith shall not be subject to review by anyone.

5.8 — APPLICABLE LAW.

The plan will be construed and enforced according to the laws of the State of Texas, and all provisions of the plan will be administered according to the laws of the said State.

Answering special issue no. 1, the jury found that the retirement committee acted in bad faith when it terminated Gehrig’s disability retirement benefits on June 17, 1974. In connection with this issue, the jury was instructed that the term “bad faith” meant “that the person doing the act must have had knowledge of such substantial facts and circumstances as to create in his mind a suspicion that there was something wrong and in spite of such suspicion, intentionally disregards and refuses to learn the facts from the means of knowledge which he knows are at hand.”

In its answers to special issues nos. 2, 3, 4, and 5, the jury found that Gehrig became totally and permanently disabled beginning March 1, 1974. The jury was instructed that “total disability” meant “that a person is unable to engage in any reasonable occupation which other individuals who have an educational background similar to that of the person, and are in good health, are actually engaged in as their principal means of financial support”; and that the term “permanent” meant that a person is “continuously, wholly and permanently prevented from engaging in any occupation for wage or profit.” Although these definí-tions are not in question, it should be noted that they were taken directly from the retirement plan.

The company objected to the court’s definition of bad faith on the ground that it was taken from the law of negotiable instruments and, for that reason is inappropriate to this suit. It tendered this definition and requested instruction to the jury: “By the term ‘bad faith’ is meant dishonestly, with fraud, collusion or deceit.” The objection and requested instruction were overruled and refused. The company’s assignments of error to these rulings are overruled.

To preserve error relating to a definition contained in the court’s charge, it was incumbent on the company to object to the definition, “point out distinctly the matter to which [it] objects and the grounds of [its] objection.” Rules 272 and 274, Vernon’s Tex.Rules Civ.Proc. The source of a definition submitted to a jury is of no consequence if the definition is not otherwise objectionable under the record, and the company’s objection on this ground does not meet the quality of specificity required by the Rules.

Moreover, within the context of this case, the company’s tendered definition of “bad faith” is too restrictive. Under the express terms of § 5.5 of the plan, and the law of this State as expressed in Neuhoff Brothers Packers Management Corp. v. Wilson, (Tex.Sup., 1970) 453 S.W.2d 472, the retirement committee is tied to a good faith standard of conduct in the performance of its duties. As used here in relation to a decision-making process critical to the welfare of the employees for whom the plan is funded by the company, and to the company-employee relationship, the term “good faith” necessarily means more than the legalistic level of honesty required by the appellant’s tendered definition, and prohibits also arbitrary and capricious activity by the committee. In other words, the requirement in the plan of good faith activity by the retirement committee is obviously designed to prevent arbitrary decisions as well as those patently dishonest. See Bruner v. Mercantile National Bank, (Tex.Civ. App. — Dallas, 1970, writ ref., n. r. e.) 455 S.W.2d 323, 327; McHorse v. Portland General Electric Company, (1974) 268 Or. 323, 521 P.2d 315, 319; Marsh v. Greyhound Lines, Inc., (5th Cir.Ct.App., 1974) 488 F.2d 278, 280; Hainline v. General Motors Corporation, (6th Cir.Ct.App., 1971) 444 F.2d 1250, 1257. The company’s definition was properly refused.

The company asserts that the evidence is legally and factually insufficient to support the jury’s finding of bad faith by the committee, even under the definition submitted to the jury. We are bound to review this complaint, and others like it, under the rules set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). It must be noted, however, that because the definition of “bad faith” submitted to the jury was not properly challenged on the trial, our resolutions of the questions of sufficiency of proof to support the finding of bad faith must be based upon that definition. This definition is made up of thésp two elements: At the time the retirement committee terminated Gehrig’s disability retirement benefits, (1) did it “have knowledge of such substantial facts and circumstances as to create a suspicion” that (in accordance with the provisions of § 2.4(B) of the plan) Gehrig was disabled to the extent that he was “unable to engage in any occupation which other individuals who have an educational background similar to [his], and are in good health, are actually engaged in as their principal means of financial support”; and, if it did, then (2) did it also, “in spite of such suspicion, intentionally disregard and refuse to learn the facts from the means of knowledge which it knew were at hand”? We believe the phrase “intentionally disregard and refuse to learn the facts” was used by the court in this definition to denote a conscious indifference on the part of the committee; and not to mean willful wrongdoing such as a dishonest, deceitful, or fraudulent act.

Without detailing it, there is evidence in the record which, with inferences raised by it, shows that Gehrig began his employment with the company in 1940; that he became its president in 1969, and chief executive officer soon thereafter; that the company is a broadly diversified corporation with subsidiaries and offices nation-wide; that during Gehrig’s leadership, the company suffered several set-backs, and he, in turn, suffered a mental and emotional breakdown — a “burning out” which is not an uncommon result of the stress and tensions placed upon the top leadership of large corporations — which is progressive; that in 1971, the company’s board of directors determined to, and did, relieve Gehrig of his duties and effectively forced him to “resign” from the company’s employment and his position on the board of directors on August 31, 1971, albeit with generous sums of “termination pay,” which included six-months’ salary, unearned director’s fees, and disability retirement benefits under the plan in question; that, at the time these benefits were granted, the new leadership of the company, which serves upon and dominates the retirement committee, did not intend that the benefits should exceed a 30-month period ending March 1, 1974, regardless of Gehrig’s condition at that time; that Gehrig has continued to deteriorate mentally and emotionally, and is not now capable of holding a job; that the committee’s termination of the disability benefits was based on the fact that Gehrig is physically well, although the members knew at the time of their decision, or at the least had knowledge of facts which should have created a reasonable belief in their minds, that Gehrig was mentally disabled from functioning on the plane of other employees of his educational level; and that, with the means available, the committee members simply were not interested in determining Gehrig’s true mental state or its bearing upon his disability.

These circumstances are legally sufficient to support the jury’s determination that the committee acted in bad faith, as that term is defined in the court’s charge. A review of the entire record convinces us that the evidence is factually sufficient to support the finding.

Although not questioning the findings that Gehrig is totally and permanently disabled, the company contends that the evidence is legally and factually insufficient to support the findings that the total and permanent disability began on March 1, 1974. Again without detailing it, it is our view of the evidence that it is legally and factually sufficient to support determinations, if made, that Gehrig was totally and permanently disabled, as those terms are defined in the charge, at the time he left the company in August, 1971, and that his mental condition progressively worsened from then to the time of trial in 1975. These facts circumstantially support the jury’s selection of March 1, 1974, as the beginning date.

As we have said, Gehrig resigned on August 31, 1971. His monthly disability payments under the plan were determined by the actuary to be $1,812.10 per month. He will be eligible for normal retirement benefits under the company’s pension plan beginning October 1, 1977, following his 65th birthday on September 12th, with monthly benefits of $2,261.33.

The case was submitted to the jury on the theory that if the retirement committee’s ending of Gehrig’s benefits was found to have been done in bad faith, then this constituted an anticipatory breach of the pension plan contract and matured Gehrig’s right to all future benefits thereunder. Answering special issues, the jury made a number of findings related to sums of money Gehrig was purportedly entitled to receive as disability benefits up to October 1, 1977, and for regular retirement benefits after October 1,1977. The trial court disregarded these findings and, on May 28, 1975, rendered judgment awarding Gehrig (1) $19,933.10, representing “the amount due and owing for past disability payments from July 1, 1974, through [the time of judgment in] May, 1975”; and (2) $37,-603.58, representing “the present value of that sum of money” necessary to fund monthly disability retirement benefits of $1,812.10 from June 1, 1975 to March 1, 1977, which Gehrig “would be entitled to receive . . but for the bad faith action of the Retirement Committee on June 17, 1974.” While challenging Gehrig’s right to any recovery, the company asserts that, in any event, the principles of anticipatory breach do not bear application in this case and Gehrig is therefore not entitled to recover future benefits in this lawsuit.

Although the plan in question is funded wholly by the company, benefits payable thereunder are in no sense “gifts” by the company. Rather, the plan is a contract between the company and its employees, based upon valuable considerations. Lee v. Lee, 112 Tex. 392, 247 S.W. 828, 833 (1923). It may be that the doctrine of anticipatory breach has application to a contract of this nature in a proper case. But we agree with the company that Gehrig’s reliance upon the doctrine in this case is misplaced. Assuming, as we must under the record, bad faith activity by the retirement committee relating to Gehrig’s right to disability benefits, there is no evidence that the company or the retirement committee intended to disavow the fact that Gehrig is a participant under the plan, or that it intends to deny him future benefits under it such as early retirement benefits or regular retirement benefits. In fact, undisputed evidence shows that the retirement committee tendered early retirement benefits under the plan to Gehrig when his disability benefits were terminated. In short, the record does not show an intention on the part of the company, through the committee or anyone, to repudiate the plan and to not comply with its terms in the future.

The doctrine of anticipatory breach is applicable only where there is an unequivocal renunciation of the contract by the defaulting party. Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 406 (Tex.Com.App., opinion adopted, 1937); Pollack v. Pollack, 39 S.W.2d 853, 855, (Tex.Com.App., holdings approved, 1932); Ulen Securities Co. v. City of El Paso, 59 S.W.2d 198, 199 (Tex.Civ. App. — El Paso, 1933, writ ref.). The party not in default will be justified in treating the contract as repudiated or abandoned only where the other party to the agreement, by his conduct or misconduct, clearly shows a fixed intention during nonperformance to repudiate the agreement and not to comply with its terms in the future. Kilgore v. Northwest Texas Baptist Educational Ass’n, 90 Tex. 139, 37 S.W. 598 (1896); Burks v. Neutzler, 2 S.W.2d 416, 418 (Tex. Com.App., 1928); 13 Tex.Jur.2d 566, Contracts, § 310. Accordingly, it is the rule that refusal by one party to perform an independent provision of a divisible contract is not such renunciation or abandonment as will support an action under the principles of anticipatory breach of the whole agreement. Surko v. Harrison, 391 S.W.2d 115, 119 (Tex.Civ.App. — Corpus Christi, 1965, writ ref’d n. r. e.); Leonard v. Kendall, 190 S.W. 786, 788-789 (Tex.Civ.App. — Dallas, 1917, writ ref’d).

There is an additional reason why Gehrig may not now recover future disability benefits. The retirement committee is expressly authorized by the terms of § 2.4(D) of the plan, supra, to require proof every six months, or more frequently at its discretion, of the continued eligibility of a recipient of disability pension benefits, and is required by § 2.4(F) thereof to end the benefits if the participant is no longer disabled. Gehrig’s argument that a holding that he is not entitled to now mature future benefits will “force him into court every few weeks to collect a monthly payment” is not persuasive. Although the record does support a finding of conscious indifference by the committee toward Gehrig’s past rights under the plan, it does not show a willful disregard of those rights by the committee members, nor does it indicate that they do not intend a good faith attitude toward those rights in the future in keeping with our rulings in this case.

Gehrig was, nevertheless, entitled under the record to the award of disability benefits from the time they were terminated through the date of judgment. The record shows without dispute that the benefits were paid through June, 1974; that judgment was rendered on May 28, 1975; and that the disability benefits are $1,812.10 per month. This portion of the judgment, totaling $19,933.10, is affirmed.

Under the terms of the plan, a trust fund is created and maintained for the purposes of the plan. Express provision is made in the plan that any person having a claim for benefits must “look solely to the assets of the trust fund for satisfaction”; and that “in no event” will the company, its employees or officers or agents be liable for such benefits. The company cites these provisions and asserts that the judgment against it cannot stand, and that any judgment in the case must be against the fund. We disagree.

As we have said, all contributions to the plan are made by the company; none are made by the employees. All contributions are irrevocable and are transferred to the trust fund. The fund is invested and administered by a trustee appointed by the company in accordance with a trust agreement between the company and the trustee which, under the terms of the plan, is made a part of the plan. The administration and responsibility for carrying out the plan is in the hands of the retirement committee consisting of five persons appointed by the company’s directors to serve at the director’s pleasure. Employees’ qualifications for benefits are determined by the committee. Qualified employees are limited to the retirement benefits determined by formulas set forth in the plan. For these calculations, the committee has available to it actuarial service selected by the board of directors. The plan vests the committee with rule-making power for the administration of the plan and for the transaction of its business, subject to the plan’s limitations, as well as certain restrictions, requirements or modifications the directors may from time to time impose. When the committee, acting within these boundaries, determines a question in connection with the plan, such determination, unless shown not to have been made in good faith, is deemed conclusive and binding on all persons having an interest in the plan.

The trust agreement between the company and its designated trustee is not in evidence. According to exhibits in the record, however, the trustee pays benefits, and ceases paying, on direction from the retirement committee.

The judgment in question clearly states that the amounts awarded therein to Gehrig are for disability retirement benefits under the plan. In view of the immediate control over the administration of the plan (including the disbursement or not of benefits thereunder) by the company’s board of directors through the retirement committee, and especially in the absence of the terms of the trust agreement which forms a part of the plan, we cannot say that the trustee is an indispensable party or that the judgment is improper because it is solely against the company and not against the trust fund. See, Murphy v. R. J. Reynolds Tobacco Company, 260 Iowa 422, 148 N.W.2d 400 (1967), and cases cited therein.

The appellant has other points and contentions. Some are rendered immaterial by our rulings. The others do not present reversible error.

The judgment is reformed to delete therefrom the award of $37,603.58 for future benefits. As reformed, the judgment is affirmed.

Trial court costs are assessed against the appellant. The costs of this appeal are assessed one-half against the appellant and one-half against the appellee.


author: RAY, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Wilma Lorene STANLEY, Appellee.
    No. 8295.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 24, 1976.
    Rehearing Denied March 16, 1976.
    Norman C. Russell, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellant.
    Lynn Cooksey, Texarkana, for appellee.
   RAY, Justice.

The opinion delivered by this court on July 8,1975 is withdrawn and the following is substituted:

This is a workmen’s compensation case. Appellee (plaintiff) Wilma Lorene Stanley, brought suit against her employer’s insurance carrier, Liberty Mutual Insurance Company, appellant (defendant), seeking to set aside a final award of the Texas Industrial Accident Board. The appellee’s claim was for total and permanent disability. She further asserted that good cause existed for her failure to file her claim within the statutory time limit. The jury found that Mrs. Stanley was totally and permanently disabled and further found that good cause existed for the late filing of her claim. The trial court entered a judgment upon the jury’s verdict from which the appellant has timely appealed. Two points of error are presented for our consideration.

Appellee, an employee of Day and Zimmerman, Inc., injured her back when the chair which she was carrying became entangled in the bottom of her coveralls and caused her to fall. A claim for compensation was not filed with the Texas Industrial Accident Board until twenty-four and one-half (24½) months later. Appellant contends that Mrs. Stanley did not have good cause for the late filing..

Appellee received her injury on September 16,1969 but did not report her injury to the Texas Industrial Accident Board until October 1,1971. Mrs. Stanley was aware of the necessity to timely file her claim, but no steps to do so were taken within the six months following the date of her injury. Appellee knew that she had received an injury, had reported such, and had experienced pain which she attributed to the injury. She testified that when she was sick or unexcused from work that she knew such to be the result of her injury.

Appellee testified that she did not file her claim sooner because she thought her injury was trivial. Appellee’s physician stated in his deposition that upon the initial visit that he did not believe her injury to be severe. Mrs. Stanley testified that in September of 1971 that her doctor told her something that caused her to change her mind about the seriousness of her injury. Mr. Stanley testified that he and his wife went to Dr. Leon Purifoy’s office during the latter part of September, 1971, and that Dr. Purifoy told Mrs. Stanley that she would never be able to do any other work than walk.

During the twenty-four and one-half (24½) months from the date of injury to the date of filing her claim, Mrs. Stanley continued to work for her employer but was absent from work twelve days due to sickness and a total of thirty-three days as unexcused absences. According to Mrs. Stanley, the total of forty-five days lost work was the result of her injury. She saw her family physician forty-three times during the same period.

The test for good cause has been set out in the often cited cases of Moronko v. Consolidated Mutual Insurance Company, 435 S.W.2d 846 (Tex.1968) and Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948). In Hawkins, the Supreme Court stated:

“The term ‘good cause’ for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. Consequently, whether he has used the degree of diligence required is ordinarily a question of fact to be determined by the jury or the trier of facts. It may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion.”

In Harkey v. Texas Employers’ Ins. Ass’n, the Texas Supreme Court stated: “There are several distinct factual bases for good cause under Art. 8307, sec. 4a,

R.S.1925, Vernon’s Ann.Civ.St. art. 8307, § 4a. Claimant’s belief in good faith that his injuries are not serious is one, provided a reasonably prudent person in the same or similar circumstances would have delayed filing his claim. Texas Employer’s Insurance Association v. Clark, Tex. Civ.App., 23 S.W.2d 405, error dismissed. And while such belief continues, the fact that almost constant pain exists does not affect the issue; since pain and suffering are not compensable. Texas Employers’ Ins. Ass’n v. Roberts, 135 Tex. 123, 139 S.W.2d 80. Advice from a physician that his injuries are not serious constitutes good cause for failure to file a claim within the prescribed time, provided the claimant, in the exercise of ordinary care, believes and relies upon that advice. Consolidated Underwriters v. Pruitt, Tex. Civ.App., 180 S.W.2d 461, er. ref., want of merit.”

Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919, 921-922 (1948).

“It is not enough to satisfy the statutory requirement to prove that good cause for failure to file existed during the six-month period; an injured workmen owes a duty of continuing diligence in the prosecution of his claim, and must prove that good cause for failure to file continued up to the date of filing.” Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33, 34 (Tex.1965). An employee may show good cause for failure to timely file his claim, if on his own he believes his injuries to be trivial (and provided, that he has no affirmative medical opinion to the contrary). Texas Employers’ Ins. Ass’n v. Clark, 23 S.W.2d 405 (Tex.Civ.App. Eastland 1929, writ dism’d); Texas Employers’ Ins. Ass’n v. Roberts, 135 Tex. 123, 139 S.W.2d 80 (Tex.Com.App.1940, opinion adopted).

Upon reporting to the company doctor following her accident, Mrs. Stanley was told that she could go back to work. Appel-lee testified at that time that she did not believe her injury to be severe. Subsequently, she went to see her family physician, Dr. Purifoy. After visiting with him, she again stated that she did not believe her injury to be serious and continued to work. The company doctor only saw appellee three times and fully and finally discharged her to return to regular duty without ever seeing her again. The record is replete with testimony by Mrs. Stanley that she had no intentions of filing a claim for workmen’s compensation because she thought her injury was trivial. She continued to work for the same company during the twenty-four and one-half (24½) months between the time of her injury and the time of filing her claim for compensation. Her first sick leave was granted at the request of her family physician on November of 1970, some fourteen months after her injury. On July 26, 1971, appellee visited her doctor and again visited her family physician on August 17, 1971, at which time her physician requested and appellee was granted a sick leave beginning August 17, 1971, for a period of one month. On this same date she spoke to her physician about her disabilities, but testified that it was not until later that her doctor told her that her injuries were serious. Mr. Stanley testified that the doctor told his wife that her injuries were serious during an office visit in the latter part of September, 1971. Shortly thereafter on October 1,1971, appellee filed her claim for compensation with the Texas Industrial Accident Board.

The Appellate Courts are bound by the decision of the trier of facts as to whether or not the claimant has used that degree of diligence in filing his claim as an ordinarily prudent person would have done under the same or similar circumstances and that issue may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion. Hawkins v. Safety Casualty Co., supra, Lee v. Houston Fire and Casualty Insurance Company, 530 S.W.2d 294 (Tex.1975). We hold that the evidence was sufficient for the jury to have concluded, as it did, that Mrs. Stanley had exercised the requisite degree of diligence in filing her claim and that good cause existed for the late filing.

The other point of error deals with the jury’s findings of total and permanent disability. We have once again reviewed the record as it relates to the fact findings made by the jury, and we cannot say as a matter of law that the record is totally without evidence to support such findings. We hold that the evidence was sufficient to sustain the jury verdict and the judgment entered by the trial court.

Appellee’s motion for rehearing is granted, appellant’s points of error are overruled, and the judgment of the trial court is affirmed.


author: CURTISS BROWN, Chief Justice.

text:
    In re Thomas V. NEWTON.
    No. 1345.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 25, 1976.
    Edward C. Carrington, Jr., Eugene B. Wilshire, Jr., Houston, for appellant.
    John M. Robinson and John Perkins, Houston, for appellee.
   CURTISS BROWN, Chief Justice.

This is an original habeas corpus proceeding brought under Tex.Rev.Civ.Stat.Ann. art. 1824a (Supp.1975).

On October 22, 1975 the wife of Thomas V. Newton (relator) filed a petition for divorce. On October 24 the trial court granted a temporary restraining order that restrained the relator from disposing of $10,-000 in his possession, incurring any indebtedness, or making withdrawals from any checking or savings accounts. The court’s order also commanded relator to appear at a hearing on November 19 to show cause why an injunction should not be granted and why he should not be required to file a complete inventory and financial statement. Relator, represented by counsel, appeared at the November 19 hearing and stated that the $10,000 in question had been stolen from him on October 23. At the close of the hearing the trial judge stated that the relator would be found in contempt of court “for lying under oath and will be committed for thirty days until he comes up with a better story.”

The following day an order of commitment was signed reciting that:

[T]he Court finds and now holds that the said THOMAS V. NEWTON has purposely and openly violated the Order of this Court, having disposed of said $10,000.00 and having failed to explain to the Court . any plausible reason for its disposition.

Immediately following the above typewritten words appeared these hand-written words:

& having willfully lied to the court under oath in his attempt to explain a plausable [sic] reason for its disposition.

The order then concluded with the following typewritten paragraph:

It is, therefore, ORDERED by this Court that THOMAS V. NEWTON be, and he is hereby, held in contempt of Court with relation to the matters referred to, and the said THOMAS V. NEWTON is hereby committed to the custody of the Sheriff of Harris County, Texas, to be by him confined in the Harris County Jail for a term of thirty (30) days or until he purges himself of the contempt of which this Court hereby finds him guilty.

At the outset we are faced with a novel jurisdictional question. Article 1824a limits our jurisdiction in habeas corpus proceedings to cases in which the relator is restrained in his liberty

by virtue of any order, process, or commitment issued by any court or judge on account of the violation of any order, judgment, or decree theretofore made, rendered, or entered by such court or judge in a divorce case, wife or child support case, or child custody case.

Although somewhat narrower, our habeas corpus jurisdiction is similar to that conferred on the supreme court by Tex.Rev. Civ.Stat.Ann. art. 1737 (1962). Neither the supreme court nor courts of civil appeals may inquire into the legality of restraint imposed for some reason other than the violation of a court order. Ex parte Waters, 498 S.W.2d 144 (Tex.Sup.1973); Ex parte Hosken, 480 S.W.2d 18 (Tex.Civ.App.-Beaumont 1972, no writ). The supreme court has specifically held that it is without power to inquire into the legality of restraint imposed for knowingly giving perjured testimony. See Ex parte Morris, 162 Tex. 530, 349 S.W.2d 99 (1961). Therefore, this court may not do so.

In the instant case, however, there are two distinct acts for which the relator was held in contempt: lying under oath and violating a temporary restraining order. Thus, relator is restrained, at least in part, on account of the violation of an order of the court.

Perhaps equally important, the rule has been adopted in Texas that where one penalty is affixed for more than one act of contempt, and it is found that the relator could not be held in contempt for one of the acts, the whole judgment is tainted and is void, and a person held under it is illegally restrained of his liberty. See Ex parte Werner, 496 S.W.2d 121 (Tex.Civ.App.-San Antonio 1973, no writ); Ex parte Turner, 478 S.W.2d 256 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ). We therefore conclude that we have jurisdiction over this original proceeding and may inquire into the legality of relator’s restraint to the extent that it was imposed on account of the violation of a previous court order.

Turning to the merits of the case, we find that prior to his commitment the relator received no notice whatsoever of any contempt charges against him. Since the act made the basis of the contempt citation occurred outside the presence of the court, the commitment was for “constructive contempt” as opposed to “direct contempt.” See Ex parte Arnold, 503 S.W.2d 529 (Tex.Crim.App.1974). It is well settled that in such cases the accused must have full and complete notification of the subject matter before a punishment can be imposed for contempt. Ex parte Edgerly, 441 S.W.2d 514 (Tex.Sup.1969); Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928). Not having received such notification, relator was denied due process.

Inasmuch as relator could not be so summarily held in contempt for the act of violating the trial court’s temporary restraining order, the whole judgment of contempt is void. The relator is ordered discharged.


text:
    PHB, INC., Appellant, v. Mrs. W. T. GOLDSMITH, Appellee.
    No. 1294.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 25, 1976.
    Rehearing Denied March 17, 1976.

      John C. Werner, Werner & Rusk, Houston, for appellant.
    Meyer Jacobson, Houston, for appellee.
   CURTISS BROWN, Chief Justice.

This is a proceeding in the nature of a bill of review.

PHB, Inc. (PHB or appellant) filed a “Petition for Bill of Review” seeking to vacate a prior default judgment in which Mrs. W. T. Goldsmith (appellee) was awarded (as against PHB) title to and possession of certain real property. Mrs. Goldsmith’s motion for summary judgment was granted by the trial court, and PHB has appealed.

The prior suit, styled “PHB, Inc. v. Luke Bennett, et a 1,” was a trespass to try title action instituted by PHB in 1970. Although no service was ever issued, Mrs. Goldsmith, one of the named defendants, filed an answer and counterclaim in 1974. By her counterclaim she sought title to and possession of the disputed property, and damages. On April 26, 1974 PHB took a voluntary non-suit. The dismissal order was in standard language, that-“the above numbered and entitled cause be and the same is hereby dismissed without prejudice.

. ” On May 28, 1974 an “Amended Order of Dismissal” was signed purporting to set aside the earlier dismissal insofar as it concerned Mrs. Goldsmith. On June 10 PHB filed a disclaimer reciting that it has “no right, title or interest or claim of any kind or nature” in the property by reason of a conveyance to a third person. On June 24 another “Amended Order of Dismissal” was signed. After reciting that PHB’s motion to dismiss “the above styled lawsuit is hereby granted as to defendant, MRS. W. T. GOLDSMITH . . . this last order stated that

the suit shall be continued insofar as Defendant, MRS. W. T. GOLDSMITH’S Cross-Action is concerned, until the matter is concluded by further Order of this Court subject to Defendant, MRS. W. T. GOLDSMITH, initiating action as against some third party or parties.

No further action was taken until October 18, 1974, when a judgment was rendered awarding title to and possession of the property — but not damages — to Mrs. Goldsmith. The present suit was filed on March 12, 1975.

Since this was a bill of review proceeding, in order for appellant to have obtained relief it would have had to allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which it was prevented from making by the fraud, accident, or wrongful act of the opposite party, (3) unmixed with any negligence of its own. Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.Sup.1974); Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). Proof of an improper failure to serve appellant with citation could have obviated the necessity of pleading and proving the second requirement above. Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870 (Tex.Sup.1975).

Appellant’s first point of error asserts that the trial court’s initial order of dismissal, dated April 26,1974, became final before the first “Amended Order of Dismissal” was signed on May 28. It is argued that by its broad language the April 26 order disposed of all parties and issues, including appellee’s counterclaim. Thus, rather than being an allegation of a meritorious defense, this point is an assertion that the trial court lacked the jurisdictional power to render its judgment of October 18, 1974. Where such an attack is made, a meritorious defense need not be alleged. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961).

It is well settled that the taking by a plaintiff of a voluntary non-suit does not prejudice the right of an adverse party to be heard on his claim for affirmative relief. Short v. Hepburn, 89 Tex. 622, 35 S.W. 1056 (1896); Fuller v. Middleton, 453 S.W.2d 372 (Tex.Civ.App. — Fort Worth 1970, writ ref’d n. r. e.); State v. Roberson, 409 S.W.2d 872 (Tex.Civ.App. — Tyler 1966, no writ); Tex.R.Civ.P. 96, 164. Appellant could not, by its own motion to dismiss, have appellee’s counterclaim dismissed. Therefore, the court did not lose jurisdiction of the counterclaim thirty days after its April 26 order. Appellant’s first point is overruled.

Appellant’s second and third points of error assert that at the time the October 18, 1974 judgment was rendered the trial court lacked jurisdiction of the person over appellant. Even assuming arguendo that this contention has merit, appellant in a proceeding in the nature of a bill of review still has the burden of alleging and proving a meritorious defense. See McEwen v. Harrison, supra; Alexander v. Hagedorn, supra; Texas Industries, Inc. v. Sanchez, supra.

Appellant’s fourth point of error asserts that summary judgment was improper because there were genuine issues of material fact. Specifically, appellant points to its allegation that it has a meritorious defense to appellee’s counterclaim. A summary judgment is proper only where the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970). We cannot agree that there is any genuine issue of fact regarding a meritorious defense. Appellant had disclaimed any interest in the property that was the subject of appellee’s counterclaim. Therefore a judgment awarding title to the property to appellee as against appellant was proper, and appellant was thereafter estopped to claim any present interest in the property. See Jansen v. Kelley, 206 S.W.2d 856 (Tex.Civ.App. — Austin 1947, writ ref’d n. r. e.); Canales v. Clopton, 145 S.W.2d 933 (Tex.Civ.App. — San Antonio 1940, no writ); Williams v. Humble Oil & Refining Co., 139 S.W.2d 346 (Tex.Civ.App. —El Paso 1940, writ dism’d jdgmt cor.). It is to be noted that the so-called “disclaimer” of PHB did not constitute an unqualified confession of the appellee’s cause of action. It was more in the nature of a denial of a present right of interest in the property and the lack of any claim because of a conveyance to a third party. The disclaimer reads in the ordinary way except that it adds “by reason of its conveyance of all of its right, title and interest in and to said property by deed dated December 6, 1972, recorded under File No. D-769796 of the Deed Records of Harris County, Texas, such conveyance being to Walter H. Phillips, Trustee.” We are not to be understood that this disclaimer and the judgment based thereon would in any manner affect the rights of appellant’s grantee. See Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.Sup.1974); Haltom v. McKinley, 64 S.W.2d 1060 (Tex.Civ.App. — Texarkana 1933, writ dism’d). Insofar as appellant alone is concerned, however, the disclaimer and judgment based thereon established the lack of a meritorious defense and entitled appellee to judgment as to it. Therefore, the judgment of the trial court is affirmed.

Affirmed.


author: CIRE, Justice.

text:
    M. Jack TABOR, Trustee, et al., Appellants, v. MEDICAL CENTER BANK, Appellee.
    No. 1318.
    Court of Civil Appeals of Texas, Houston (14th Dist.). .
    Feb. 25, 1976.
    Rehearing Denied March 17, 1976.

      M. Jack Tabor, Tabor & Ray, Terry Sears, Houston, for appellants.
    Robert L. Rouner, Bracewell & Patterson, Houston, for appellee.
   CIRE, Justice.

This is an appeal from a summary judgment for the plaintiff on a promissory note.

Appellee Medical Center Bank sought recovery from appellants Jack Tabor and Marsh Starck on a note executed by them and due on April 8,1974. Appellee’s motion for summary judgment was supported by the affidavit of Mr. David Wilson, its executive vice-president. The affidavit recites that Wilson has personal knowledge that the facts and allegations contained in appel-lee’s petition are true and correct. The affidavit further states that appellee is the owner and holder of the note sued upon and that after deduction of all lawful offsets, appellants are indebted to appellee in the amount of $72,737.38 plus interest and contractual attorney’s fees.

Appellants Jack Tabor and Marsh Starck submitted their affidavits in opposition to appellee’s motion for summary judgment. These affidavits, in addition to alleging certain defenses to the action, contained the assertion that “David Wilson was in no way connected with the Plaintiff, or the transaction involving the note sued upon.”

Under Rule 166-A the party moving for summary judgment has the burden of proving by means of summary judgment evidence independent of the pleadings that there is no material issue of fact and that he is entitled to judgment as a matter of law. Only when the movant has discharged this burden by presenting competent extrinsic evidence is the non-moving party required to show opposing evidence which raises a material fact issue. Allen v. Western Alliance Insurance Co., 162 Tex. 572, 349 S.W.2d 590, 594 (1961). In order to constitute valid summary judgment evidence an affidavit must state that it is made on the personal knowledge of the affiant. If, however, the credibility of the affiant is at issue, or if there is a question as to the weight of the evidence, summary judgment is not proper. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965).

In this case the credibility of the movant’s affiant was put in issue by appellants’ affidavits. All the affidavits submitted, both by the appellee and by the appellants, were the testimony of interested witnesses. The function of evidence given by an interested witness in a summary judgment proceeding is different, however, according to the parties’ positions. The movant must establish his right to judgment as a matter of law. “Evidence which favors the movant’s position is not considered unless it is uncontradicted.” Great American Reserve Insurance Co. at 47.

Moreover, even if the movant’s evidence is not contradicted, if the testimony comes from an interested witness, it does not establish a fact as a matter of law unless it is “clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach” it. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942). The affidavits of the appellants constitute evidence tending to discredit or impeach the affidavit of David Wilson.

The appellants are also interested witnesses; thus, their affidavits are also incapable of establishing as a matter of law the facts recited. If appellee’s evidence did, on its face, establish its right to judgment as a matter of law, the appellants, as the parties opposing the summary judgment motion, acquired the burden, not to establish any fact'as a matter of law, but merely to raise an issue of fact. The testimony of an interested witness is sufficient to raise a fact issue. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942).

This is particularly true in this instance because in a summary judgment proceeding when the movant fails to controvert his opponent’s evidence, that evidence is accepted as true on appeal. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.Sup.1972); Railroad Commission v. Sample, 405 S.W.2d 338 (Tex.Sup.1966). Appellee’s motion for summary judgment and its supporting affidavit were filed on May 8,1975; appellants’ opposing affidavits challenging David Wilson’s credibility were filed on May 16, 1975 and amended on June 20,1975; the summary judgment hearing was held June 23, 1975. During the five-week period from May 16 to June 23 appellee did not amend its affidavit in an attempt to controvert the appellants’ allegations. Wilson’s connection with the appellee bank and the course of his knowledge of the transactions resulting in the current status of the indebtedness were facts which, if true, could easily have been established by appellee.

Since appellee, as the moving party did not satisfy its burden of proving as a matter of law that there were no material fact issues, the summary judgment was not properly granted.

The judgment of the trial court is reversed and the cause remanded.


author: PER CURIAM.

text:
    KENTUCKY BOARD OF TAX APPEALS et al., Appellants, v. Jane Hamilton GESS et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 20, 1976.

      William S. Riley, Asst. Atty. Gen., Thomas A. Duke, Dept, of Revenue, Frankfort, William E. Sloan, Wylie & Sloan, Lexington, for appellants.
    Joseph R. Wheat, Gess, Mattingly, Saunier & Atchison, Lexington, for appellees.
   PER CURIAM.

This is a controversy between several taxpayers and the state and local taxing authorities relating to the meaning and essential principles for determining the value of “agricultural and horticultural land according to the land’s value for agricultural or horticultural use” as required by Section 172A of the Kentucky Constitution.

Procedurally, the taxpayers appealed to their board of supervisors from the 1971 assessments made by the local property valuation administrator (PVA). See KRS 133.-120. The PVA appealed to the state board of tax appeals (BTA) from an order of the board of supervisors decreasing the assessments. See KRS 131.340, 131.350. After a de novo hearing the BTA set aside the action of the board of supervisors and reinstated the original assessments made by the PVA, whereupon the taxpayers appealed to the Fayette Circuit Court. See KRS 131.-370. The game of leapfrog arrives here with an appeal by the taxing authorities from a judgment remanding the proceeding to the BTA with directions that the action of the board of supervisors be reinstated.

Before November of 1969, by virtue of Const. § 172 all non-exempt property was required to be assessed “at its fair cash value, estimated at the price it would bring at a fair voluntary sale.” At the 1969 general election this provision was amended by the adoption of what is now Const. § 172A, which provides in part as follows:

“The General Assembly shall provide by general law for the assessment for ad valo-rem tax purposes of agricultural and horticultural land according to the land’s value for agricultural or horticultural use. The General Assembly may provide that any change in land use from agricultural or horticultural to another use shall require the levy of an additional tax not to exceed the additional amount that would have been owing had the land been assessed under Section 172 of this Constitution for the current year and the two next preceding years.”

In an effort to comply with this constitutional amendment the 1970 General Assembly enacted (Ch. 249, Acts of 1970) certain amendments to KRS 132.010, one of which, now KRS 132.010(9), was a new subsection as follows:

“ ‘Agricultural or horticultural value’ means representative sales prices of comparable land purchased for agricultural or horticultural use with consideration being given to the purpose of purchase, such as, farm expansion, improved accessibility and other factors unduly influencing the sales price.”

“The appellant, PVA, supported his assessments with proof of comparable sales and witnesses who testified that the lands sold were being used for agricultural purposes and concluded that the fair cash and the agricultural values of the subject tracts of land are one and the same. These figures ranged from $685.00 to $982.00 per acre.

“The respondents presented witnesses who testified that provided the purpose of the purchase of the land was solely for the production of livestock, livestock products, poultry, poultry products and/or the growing of tobacco and/or other crops for profit and reasonable income from the investment farmland in Fayette County would be worth $300.00 to $600.00 per acre.

The heart question pervading the litigation is whether the assessment of farm land on the basis of comparable sales of property being used for the same purposes complies with the mandate of Const. § 172A. In this respect we quote from the order of the BTA as follows (italics added):

“There is testimony herein relative to the merits of evaluating land by use of comparable sales, market value, cost, income production, capitalization and other facets.

“The representative sales prices of comparable lands presented herein were made for lands in agricultural use at the time of sale and which continued in agricultural use after the purchase.

“The petitioner’s assessments for the subject lands are within the limits of the proof and the law.”

Thus it may be observed that if property was in actual use as a farm when voluntarily sold, and continued to be so used thereafter, the PVA and BTA considered the price paid for it as an accurate and sufficient indicator of its value for agricultural or horticultural use. We think that viewpoint is erroneous.

Through the years this court has consistently regarded comparable sales, when they are available, as the most reliable indicia of fair cash value, and we do not retreat from that view now. But of course Const. § 172A does not call for fair cash value. It asks for a fictitious or hypothetical figure: What would the property bring if its use for the indefinite future were restricted by law to agricultural and horticultural purposes?

The fallacy of the approach taken by the taxing authorities is that even though the highest and best use of a tract of land today is for agricultural purposes, and it is actually being so used, what it will bring when offered for sale may be and often is influenced by its potential value for other purposes in the future.

The plain fact is that there are fewer and fewer sales of property in which the price is not inflated to some degree by factors other than its value for purely agricultural and horticultural purposes. With good roads and the extension of water, electricity, and other utilities into hitherto-remote rural areas, the actual market value of a very substantial percentage of farm property reflects potential uses other than farming. Cf. discussion in Com., Dept, of Highways v. Siler, Ky., 411 S.W.2d 937, 938-939 (1967). Whenever farm property has a market value, or actually has sold for a price, greater than is justified by its income-producing capacity, then there is at the very least a strong suspicion that the excess reflects factors other than its value for purely agricultural and horticultural purposes. The excess market value reflected by those potential uses is the precise target Const. § 172A intends to eliminate from the taxing process.

It follows that the value of property for agricultural or horticultural purposes alone can never by ascertained by a mechanical application of comparable sales — even a recent sale of the very property that is being assessed — unless and until all extraneous factors, if any, entering into the price or prices paid are identified and eliminated. Nor, conversely, can income-producing capacity alone be the criterion, because two pieces of property with the same income-producing capacity will not necessarily bring the same price. If, for example, they are in different communities the supply-demand ratio may be different. One may be more desirable than the other because it is closer to good schools or to communities offering greater social and cultural advantages. These of course are factors that do legitimately bear upon the value of property for agricultural and horticultural purposes. So, too, does the accessibility of utility services have a proper relationship to the price land will bring solely for those purposes, but care and intelligence must be exercised to exclude the extent to which such “desirability” factors increase its potential, and thus its value, for other purposes. As we have indicated, there is and can be no slide-rule method or formula by which assessments conforming to Const. § 172A may be achieved quickly and in mass-production fashion.

We fully recognize that the process of assessing property in accordance with Section 172A will not be easy, but the difficulty inheres in the purpose of the constitutional amendment itself, and cannot serve as a justification for deviating in any degree from that purpose.

In its judgment setting aside the valuations fixed by the BTA the trial court incorporated a written opinion as its findings of fact and conclusions of law, expressing the view that the term “value for agricultural or horticultural use” as used in Const. § 172A can be neither enlarged nor diminished by legislative definition; hence KRS 132.010(9), which does undertake to define it, is unauthorized. With that conclusion we agree. From the standpoint of substance (as distinct from procedural implementation) the constitutional amendment is self-executing and exclusive. A power to define its meaning at will would be nothing less than a power to amend it by legislation.

Citing Walter G. Hougland & Sons v. McCracken County Board of Sup’rs, 306 Ky. 234, 206 S.W.2d 951, 953 (1947), the trial court held that the burden of proof in the BTA proceeding lay upon the taxing authorities, which had appealed the action of the board of supervisors, and that because their only valuation witness conceded that he had given no consideration to the possible influence of other factors on prices paid for comparable property purchased for agricultural use his testimony did not have sufficient probative force to meet that burden. Cf. Gatliff v. White, Ky., 424 S.W.2d 843, 844 (1968). We find no fault in this reasoning. Hence the judgment directing reinstatement of the action taken by the board of supervisors was correct.

The judgment is affirmed.

All concur except REED, C. J., who did not participate in the consideration or decision of this case.

      . Compare, for example, the situation that occurs in partial-taking condemnation cases, in which “loss of access” is not a compensable factor and an evaluation of the remainder tract must therefore be made on a hypothetical basis, as if it still had the original access. Cf. Com., Dept, of Highways v. Claypool, Ky., 405 S.W.2d 674, 676 (1966).

      . As a matter of fact, on its face the BTA approach would seem to ignore the distinct possibility that the price brought by a farm, even though it has continued in use as a farm, may very well reflect that its highest and best use actually was for a different purpose.

      . Other provisions of the 1970 legislation may also infringe upon the terms and effect of Const. § 172A, but they are not involved in this case.


author: LUKOWSKY, Justice.

text:
    George R. WAGONER, Acting Commissioner, etc., Appellant, v. BLAIR FORK COAL COMPANY et al., Appellees.
    Supreme Court of Kentucky.
    March 5, 1976.

      William F. Gadd, Atty. for Sp. Fund, Dept, of Labor, Frankfort, for appellant.
    Denver Adams, Hyden, Maxwell P. Barrett, Hazard, for appellees.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Perry Circuit Court which set aside a decision of the Workmen’s Compensation Board denying relief to the appellee, widow, and remanding the case to the Board for the taking of further proof and subsequent decision. We affirm.

On February 22, 1971 Joe Deaton was awarded 50% permanent partial disability benefits by reason of being affected with the occupational disease of pneumoconiosis and/or silicosis. The award was retroactive to August 13, 1969.

On November 12, 1973 the appellee, Grace Deaton, filed a motion with the Board alleging that Joe Deaton died on October 29, 1973 and that she was his dependent widow. The motion requested that she be paid the remainder of the award.

On December 3, 1973 the Board entered an order sustaining the motion, “to the extent that this case is ordered set for hearing before a hearing officer on the issue of dependency.”

On January 7, 1974 the Board mailed a notice of hearing- to all parties. The notice stated the time and place of the hearing, the identity of the hearing officer and contained the following language in capital letters, “To be heard on the question of dependency.”

The assigned hearing was held and proof was offered by the appellee, widow, on the prescribed issue. On March 18, 1974 the Board submitted the cause for opinion and judgment.

On May 6, 1974 the Board entered an opinion and order overruling the motion of the appellee, widow, on the ground that “Joe Deaton’s death was a result of a heart attack and was not work-related.”

Judicial review in the Perry Circuit Court reached the result previously stated.

Awards to dependents of deceased employees under KRS 342.111 are controlled by the terms of the statute in effect at the time of injury rather than at the time of death. Trimble v. United Fuel Gas Company, Ky., 481 S.W.2d 658 (1972). Prior to the 1970 amendment the pertinent part of the statute read as follows:

“(1) When an employe, who has been awarded disability compensation by the workmen’s compensation board, shall die as a result of such injury or occupational disease prior to the payment to him of the amount of the award, then the dependents of the deceased employe shall be allowed and paid all allowed and unpaid awards made to such employe

It is now as obvious as “Pinocchio’s nose” that the case involved at least two issues or questions, i. e. the causal relationship between the death and the occupational disease, and dependency. The Board ordered trial of the latter but overruled the motion on the basis of the former. This is tantamount to a trial judge assigning a negligence case for trial on the issue of liability and dismissing the case at the close of the plaintiff’s proof on the ground that he failed to prove damages.

Such a cavalier approach to the adjudicatory function can not be tolerated. In the exercise of every power emanating from the people there enters the constitutional command of due process and fair play. Administrative boards must execute the law committed to them fairly and honestly and treat everyone alike according to the standards and riiles of action prescribed. Where there is a failure in this respect and it extends beyond the rudimentary requirements of fair play, it enters the realm of unreasonable and arbitrary action, from which the courts will save the citizen affected by it. Trial by misdirection is a ruse of the tyrant and may not be employed by an agency of the Commonwealth of Kentucky.

The appellee, widow, is entitled to an opportunity to prove a causal relationship between the death and the occupational disease, since it may not be said categorically that there can be no relationship between respiratory disease and death from coronary insufficiency. See, Young v. Holbrook, Ky., 472 S.W.2d 473 (1971).

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Clarence A. YANCEY, Appellee.
    Supreme Court of Kentucky.
    March 5, 1976.

      Edwin A. Schroering, Jr., 30th Judicial Dist., Commonwealth’s Atty., Louisville, Ed W. Hancock, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellant.
    Neville M. Tucker, Louisville, for appel-lee.
   JONES, Justice.

Clarence A. Yancey, Chief of Sanitation, City of Louisville, was indicted by the February 1975 term of the Jefferson County Grand Jury. He was charged with four counts of accepting bribes in 1973, and with one charge of accepting a bribe in 1974. The statute under which Mr. Yancey was indicted provides:

“Any member of the General Assembly or any other executive, judicial, ministerial or legislative officer of this state or of any county or city, including members of boards of education and subdistrict trustees, who takes or agrees to take any bribe to do or omit to do any act in his official capacity shall be fined not less than fifty dollars nor more than one thousand dollars, or confined in the penitentiary for not less than one nor more than five years, and shall forfeit his office and be disqualified from the right of suffrage for ten years.” (Emphasis added). KRS 432.350(2)

Yancey moved to dismiss the indictment because he was an employee and not an officer. That motion was sustained. The Commonwealth appeals pursuant to KRS 21.140(3). The position of the Commonwealth is that Yancey was an “officer” as defined by KRS 432.350(2).

The sole question presented in this controversy is whether the trial court was correct in dismissing the indictment against Yancey prior to the trial.

There is nothing in this record that will assist this court in arriving at a resolution of this issue except that Yancey filed a memorandum of authorities in support of his motion to dismiss. In that memorandum he referred to his title as Assistant Director of Sanitation. Then in a brief filed in this court, he filed an appendix outlining the duties of the director of sanitation. That appendix would indicate that Yancey was an officer. However, matters contained in the brief are not evidence but are in many respects, the conclusions of the attorney.

Each count of the indictment against Yancey alleges that Paul Lynch gave money to Clarence A. Yancey, a ministerial officer of the City of Louisville, with the intention of influencing his decision in support of claims made by the Lee’s Lane Sanitary Landfill Company, against the City of Louisville. There is nothing in the record to indicate whether the trial court had a hearing on the motion to dismiss.

The Legislature has regulated governmental actions of the City of Louisville. These regulations are contained in Chapter 83, Kentucky Revised Statutes. A pertinent provision of the statute provides:

“(1) The director of each executive department may appoint chiefs of divisions of his department, and remove them at pleasure. Except as otherwise provided by law, he may employ such officers and agents as are necessary in his department, and may, subject to any limitations imposed by ordinance, fix their compensation. Each director of an executive department may administer oaths.” KRS 83.610.

Another provision pertinent to the issue to be resolved provides:

“(1) Unless otherwise provided by law, executive and ministerial officers of the city may be removed by the board of aldermen . . . .” KRS 83.660.

Yancey contends that the provisions of Chapter 83 are not applicable in this situation. He insists that his present position as Chief of Sanitation was not created pursuant to the present provisions. That argument is irrelevant. A review of the former provisions of Chapter 83, Kentucky Revised Statutes, reveals that the substance as it concerns subordinate officers contains identical language.

An officer is a person who holds an office either public or private. A ministerial officer is an officer who is neither a judicial officer nor an executive officer and whose duties are mainly of a ministerial nature. In the ordinary sense, ministerial duties involve little or no discretion. Certainly Mr. Yancey didn’t wake up one morning and hear a still, small voice say, “Clarence A. Yancey, you are the Chief of Sanitation of the City of Louisville.” Nor was Mr. Clarence A. Yancey annointed to the position of Chief of Sanitation of the City of Louisville by some act of Divine Providence. The authority for the title and the trust imposed was the governing authority of the City of Louisville.

Many years ago this court in dealing with the definition of the term “officer,” used sound reasons when it said:

“There are various tests by which to determine who are officers, in the meaning of the law . . . . To constitute an officer, it does not seem to be material whether his term be for a period fixed by law, or endure at the will of the creating power. But, if an individual be invested with some portion of the function of government, to be exercised for the benefit of the public, he is a public officer.” City of Louisville v. Wilson, 99 Ky. 598, 36 S.W. 944 (1896).

The definition in Wilson, supra, has been repeatedly reaffirmed. See Fox v. Lantrip, 162 Ky. 178,172 S.W. 133 (1915); Shanks v. Howes, 214 Ky. 613, 283 S.W. 966 (1926); Bernard v. Humble, 298 Ky. 74, 182 S.W.2d 24 (1944); and Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964).

The indictment here is sufficient on its face. It conforms in all respects to the requisites set out in RCr 6.10. It is the duty of the Commonwealth’s Attorney to carry the burden of establishing not only the charges contained in the' indictment, but also that Yancey was an officer within the meaning of KRS 432.350(2). Likewise, Yancey has the right to defend on his theory of the case.

The action of the trial court in summarily dismissing the indictment was premature.

This court is unable to dispose of the issue presented here upon such meager facts. It appears to this court that an Oklahoma court in a case with facts similar to those in this case resolved the issues very succinctly when it phrased a question:

“Does a person who holds himself out as an officer under color of authority, and who solicits and accepts a bribe, and endeavors to and does corrupt other persons, have a right to defend and be discharged upon the contention that, as a matter of law, he had no right to act as such officer, therefore the accepting of a bribe was not a violation of the statute?”

Answering its own query, the court stated:

“. . . If he was officer enough to solicit and accept a bribe, he was also officer enough to be sent to the penitentiary for so doing. Corruption and debauchery are not tolerated in civilized communities.” Ex parte Winters, 10 Okl.Cr. 592, 140 P. 164 (1914).

The judgment is reversed with directions that the trial court reinstate on the Jefferson Criminal Court docket Indictment no. 153701(3) against Clarence A. Yancey for further proceedings consistent with this opinion.

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

PALMORE, J., concurs in result only.

      . This statute was amended in 1974 as to penalties.


text:
    George WILLIS et al., Appellants, v. Ruhen DAVIS et al., Appellees.
    Supreme Court of Kentucky.
    March 5, 1976.
    J. Craig Bradley, Jr., Bradley & Bradley, Georgetown, for appellants.
    Richard M. Compton, Richard M. Raw-don, R. Bruce Lankford, Georgetown, for appellees.
   JONES, Justice.

The Scott County Fiscal Court awarded Ruben Davis an exclusive franchise for the collection of garbage and solid waste from residential customers in Scott County, Kentucky.

Appellants, Willis, Talbert, Laine and Smarr were solid waste and garbage collectors in particular areas where they chose to collect the solid waste and garbage. They had no contract with the county, but dealt with their customers on an individual basis.

Davis filed suit against Scott County seeking a declaration that, (1) there was a valid grant of an exclusive franchise to him and, (2) Scott County breached the franchise by permitting other solid waste removal operations in the county.

The case was tried by the court without the intervention of a jury. The trial court’s judgment established the validity of an exclusive franchise by Scott County to Davis for the collection of garbage and solid waste from residential customers in Scott County, Kentucky. The same judgment invalidated that portion of the franchise which attempted to grant an exclusive franchise for the collection of garbage and solid waste from commercial customers. Willis, Talbert, Laine and Smarr prosecute an appeal from that judgment. They mount a three-pronged attack upon the judgment. They contend that:

(1) the franchise was not advertised as required by § 164 of the Kentucky Constitution;
(2) the franchise is void because the term exceeded twenty years in violation of § 164 of the Kentucky Constitution;
(3) the franchise is void due to a mistake of the parties as to the subject matter of the bid.

Davis answered each of these contentions, and asserted that Willis, Talbert, Laine and Smarr had no standing to contest the validity of the franchise granted by Scott County-

This court is of the opinion that the franchise was not advertised as required by § 164 of the Kentucky Constitution. The exact wording of the “notice of bids” published in the Georgetown News on October 12 and 19, 1973, was,

“The Scott County Fiscal Court will receive bids for the granting of a franchise for the removal and disposal of garbage and solid waste material, said bids to be opened by the clerk of the court at 1:30 P.M., October 19, 1973.
The said bids shall be upon a percentage of gross income and shall include the rate to be charged for each individual customer.
The court reserves the right to reject any and all bids.”
S/Virgil F. Pryor
Scott County Attorney

§ 164 of the Kentucky Constitution provides as follows:

“No county, city, town, taxing district or other municipality shall be authorized •or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. . . . ”

An apt description of “due advertisement” as required by § 164 was stated by this court many years ago:

“[1] The purpose of ‘due advertisement’ provided for is to give information to all who may desire to become purchasers of the franchise, and to enable them to make bids therefor, and to secure the municipalities against the loss of valuable rights for mere paltry considerations. It is to give information to all, who have an interest in the privileges to be sold, of what is proposed to be done, that citizens of a municipality may protect their rights in such matters in any proper way that necessity may create. The sale to the highest and best bidder is to enable the municipality to receive the value of the privilege to be granted away, and to prevent municipal councils from granting valuable rights and privileges to favorites without any sufficient consideration. It follows, as a natural sequence, that the only thing which can be lawfully sold is the thing which has been advertised for sale.” (Emphasis added). City of Princeton et a 1. v. Princeton Electric Light and Power Company, 166 Ky. 730, 179 S.W. 1074 (1915).

To further complicate matters involved in this dispute, Davis and Scott County, on December 1, 1973, executed an agreement for a franchise to permit Davis to collect garbage on a county-wide basis. The agreement contained a residential collection rate only and provided that no other solid waste removal operations were to be allowed in Scott County, Kentucky. The December 1, 1973 agreement was amended on February 9, 1974. That amendment referred to the franchise as an exclusive franchise in unincorporated Scott County. An order of the Scott County Fiscal Court dated the same day provided that Ruben Davis would be the exclusive contractor for the removal of residential and commercial wastes in unincorporated Scott County, Kentucky. It is interesting to note that Davis testified that his bid did not include the collection of commercial wastes. With the confusion concerning the notice, the agreement of December 1, 1973, and the amendment of February 9, 1974, it is difficult for this court to understand what Scott County intended.

In the notice for bids published by Scott County no mention was made that an exclusive franchise would be awarded to any person. If Scott County desired to establish an orderly system of garbage collection and disposal, and provide for a franchise for such operator, it was required to make the notice conform to the requirements of “due advertisement” as required by § 164 of the Kentucky Constitution. The failure to publish such notice, coupled with the other irregularities contained in the December 1, 1973 agreement and the amendment dated February 9, 1974, convinces this court that the franchise is void for lack of due advertisement.

There is no merit in the contention by Davis that Willis, Talbert, Laine and Smarr have no standing to contest the validity of the franchise. No objection was made to their motion to intervene as defendants. Actually, the trial court permitted them to intervene by agreement of the parties. Davis cannot now complain of their lack of standing.

This court is of the opinion, and so holds, that the franchise granted to Ruben Davis is invalid.

The judgment is reversed.

All concur.

      . Scott County did not perfect an appeal. Although Earl B. Hutchins, Robert Gregory, Russell Sowers, Dorothy Wilson and Ann Young were intervening defendants in the trial court, they did not perfect an appeal.