author: REYNOLDS, Justice.

text:
    Myrtle M. VICK, on behalf of herself and all others similarly situated, Appellant, v. PIONEER OIL COMPANY, WESTERN DIVISION, Appellee.
    No. 8900.
    Court of Civil Appeals of Texas, Amarillo.
    July 31, 1978.

      Morehead, Sharp, Tisdel & White, Charles G. White, Plainview, for appellant.
    Morris & Hendelman, Herman I. Morris, Port Worth, for appellee.
   REYNOLDS, Justice.

Myrtle M. Vick filed a class action suit in Floyd County against Pioneer Oil Company, Western Division, a Texas corporation with its principal office in Tarrant County, to recover unpaid overtime wages provided by Article 5172a, § 4, of the Texas Revised Civil Statutes. She brings this appeal from the trial court’s order sustaining Pioneer’s plea of privilege for the removal of the suit to Tarrant County. We affirm.

Vick was employed by Pioneer as a cashier at its self-service station in Floydada, Floyd County, from February of 1970 to 1 May 1976. During this period, so Vick alleges, she worked fourteen hours a day, seven days a week, concededly with her consent, and Pioneer failed to pay her overtime wages as prescribed by Article 5172a, § 4 (Supp.1978).

To controvert Pioneer’s plea of privilege invoking the general venue rule, Vick advanced subdivision 23 of Article 1995 as the exception authorizing venue in Floyd County. She relies on that portion of the subdivision which permits a suit against a private corporation to be brought in the county in which the cause of action or a part thereof arose.

In support of the venue order, Pioneer submits, among other contentions, that Section 4 of Article 5172a is, and has been declared by the Attorney General of Texas to be, invalid because it violates Title VII of the Civil Rights Act of 1964; that the statute is also constitutionally violative of the Texas Equal Rights Amendment; and that, as a result, Vick could not establish a cause of action based on the invalid statute. Vick concedes that if the statute is unconstitutional, she has no cause of action.

The underlying purpose of Article 5172a (Supp.1978) is to prohibit employers from requiring that a woman work in excess of a specified number of hours without her consent and to provide for premium pay for her overtime hours in certain situations. Section 4 of the article, the basis of Vick’s cause of action, reads, in part:

Sec. 4. . Unless otherwise provided herein, any female employee who works more than forty (40) hours per week shall be entitled to receive from the employer pay at a rate not less than one and one-half times the regular rate for which such female is employed for all hours in excess of nine (9) hours per day, provided the employee actually works more than forty (40) hours per week.

The federal Equal Employment Opportunity Act, enacted as Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a) (1974), prescribes that it shall be an unlawful employment practice for an employer, among other practices,

(1) to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . .

unless

(e) . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . .

The Equal Rights Amendment to the Texas Constitution, Article I, § 3a, in its entirety, states:

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.

The Attorney General of Texas, making only a passing reference to the equal rights amendment to the state constitution, has declared that Article 5172a has the discriminatory effect of denying men the benefits accorded women and is, thereby, invalid in its entirety because its provisions conflict with Title VII of the Civil Rights Act of 1964. Tex.Atty.Gen.Op. No. H-254 (1974). Vick argues that the statute can, and should, pass constitutional muster by a judicial decree extending the statutory protection to members of the male sex as, for example, the court did in Hays v. Potlatch Forests, Inc., 465 F.2d 1081 (8th Cir. 1972). In Hays, the discriminatory effect of an Arkansas statute providing overtime pay for women was cured, instead of being struck down as violative of Title VII, by the extension of the act’s benefits to men. The attorney general considered, and rejected, that view. Op. No. H-254, supra, at pp. 5-6.

While the opinions of the attorney general are not binding on the courts, they are rendered in accordance with constitutional and statutory authority and possess a highly persuasive value in the courts. Guerra v. McClellan, 250 S.W.2d 241, 243 (Tex.Civ.App.—San Antonio 1952), aff’d, 152 Tex. 373, 258 S.W.2d 72 (1953). In passing upon the constitutionality of a statute, the court begins with a presumption of validity, Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974), and, if possible, the statute must be construed to avoid repugnancy to the constitution. Key Western Life Insurance Company v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839, 849 (1961). Yet, if the act of the legislature clearly violates the constitution, the court must give effect to the language of the constitution without regard to the consequences. Smith v. Craddick, 471 S.W.2d 375, 378 (Tex.1971). Likewise, if the state act conflicts with a valid federal law, the federal law dominates. Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 8 L.Ed.2d 180, 183 (1962).

Because the unambiguous language of Article 5172a does not apply at all to male employees, the statute achieves the sexually discriminatory effect of denying to men its benefits accorded to women. Even though the statutory provisions become operative by free choice, the statute does not offer males the same opportunity as females to invoke its benefits. Sex discrimination is not limited to discrimination against women either by the Civil Rights Act of 1964, Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 386 (5th Cir. 1971), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971), or by any language in the Texas constitutional amendment. Thus, Article 5172a, by favoring one sex in employment practices, is clearly inconsistent with both the Texas constitution and the federal legislation.

Parenthetically, we note that Vick does not suggest, and we do not envision, that Article 5172a has classified sex as a bona fide occupational qualification reasonably necessary to the operation of the particular business in which she was employed so as to escape the force of Title VII. Neither does she suggest, nor do we visualize, that in her situation the mandate of the state equal rights amendment may be negated by another constitutional guarantee or by some recognized compelling state interest. See Mercer v. The Board of Trustees, North Forest Independent School District, 538 S.W.2d 201, 206 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.).

Vick does urge, as previously mentioned, that we rewrite the statute to free it from jeopardy. She asserts that the invalidity of the statute could be overcome by extending its benefits to males, and then, as proposed in Hays v. Potlatch Forests, Inc., supra, employers could, at their election, either pay men the same premium pay for overtime statutorily provided for women or limit the hours of employment for both males and females so that no employee works overtime.

Usually, before a court enlarges the operation of a statute to overcome an apparent constitutional infirmity, the court ascertains, as did the court in Hays v. Potlatch Forest, Inc., supra, that the enlargement does not impede or frustrate the purposes of the act. However, to extend to men the benefits that Article 5172a grants to women would be contrary to the underlying purpose of the statute.

The history of Article 5172a demonstrates that the legislature purposely excluded males from its operation. As originally enacted, Article 5172a benefited only women. It was voided by a federal court because it conflicted with Title VII. Reenactment to benefit all employees was proposed, but the bill was amended and adopted to limit its application to women. Op. No. H-254, supra, at pp. 1-2. By this action, the legislature clearly evinced its purpose to include women in, and to exclude men from, the operational effect of Article 5172a, and we are not at liberty to arbitrarily ascribe a contrary purpose for the unambiguous legislation as justification for extending its effect.

Moreover, because the conflict of the unambiguous language of Article 5172a with the Texas constitution is apparent, there is no alternative but to declare the statute void. In this circumstance, words cannot be read into or out of the statute to save it. Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, 376 (1918).

Accordingly and in conformity with the attorney general’s opinion, we hold that Article 5172a is unconstitutional and may not be judicially rewritten. It follows that the void statute affords no basis for Vick’s alleged cause of action.

The judgment of the trial court is affirmed.

      . Vick’s pleadings refer to Tex.Rev.Civ.Stat. Ann. art. 5172a, §§ 5, 5a; however, Article 5172a was amended in 1971 and, as amended, Section 4 of the article is the provision concerning overtime pay for female employees.

      . Citations of articles refer to those articles of the Texas Revised Civil Statutes.


source: Caselaw Access Project

author: ODEN, Justice.

license: Public Domain

text:
    T. J. WHITE, Appellant, v. H. C. DOUGLAS, Appellee.
    No. 8576.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 8, 1978.
    Rehearing Denied Aug. 29, 1978.

      Welby Parish, J. Michael Smith, Parish & Smith, Gilmer, for appellant.
    Kenneth R. Barron, Tyler, H. C. Douglas, Mineóla, for appellee.
   ODEN, Justice.

T. J. White has perfected the appeal by writ of error from a judgment rendered upon his failure to appear for trial in favor of H. C. Douglas. Appellant and appellee will be respectively referred to as White and Douglas.

Douglas instituted the action against White to remove a cloud from his title to 29¼ acres of land. The common source of title to the 29¼ acre tract was James Bell who died in 1959. Douglas alleged that James Bell died testate and that he acquired the 29¼ acre tract from the sole beneficiary under his will. White alleged James Bell died intestate and claimed an undivided one-half interest in the 29¼ acre tract under a deed executed by a statutory heir. White timely filed an answer and, shortly thereafter, Douglas moved for a summary judgment. White then filed a cross-action against Douglas alleging, inter alia, that he had retained the services of Douglas, a duly licensed attorney, to represent him in a suit involving the title to certain real property other than the 29¼ acre tract herein referenced and that Douglas, in violation of his fiduciary duty, purchased such property for his own account. Douglas timely filed an answer to the cross-action and filed an instrument labeled “cross-action” against White and his attorney, Welby K. Parish, for libel and slander. White and Mr. Parish timely filed answers and, additionally, Mr. Parish moved for a summary judgment. Both motions for summary judgment were set for hearing on June 2, 1977, before the Hon. Virgil Mula-nax, Judge of the 115th District Court. Douglas did not appear at the hearing; however, upon being contacted by telephone, Douglas’ counsel agreed that Judge Mulanex could consider the motions without a hearing. The case was set for trial for August 22, 1977, before Judge Galloway Calhoun, Judge of the 114th District Court. White failed to appear for trial on August 22, 1977, at which time judgment was rendered in favor of Douglas removing the cloud from his title to the 29½ acres of land and awarding him monetary damages against White. Douglas waived his claim for libel and slander at the trial. The judgment denied all relief prayed for by White. White timely filed a motion for new trial alleging, inter alia, that it was his understanding that the case would not be tried until after Judge Virgil Mulanax had an opportunity to rule on both motions for summary judgment. The motion for new trial was overruled by operation of law and the appeal has been perfected by writ of error to this Court.

A proceeding by writ of error in the court of civil appeals is but another method of appeal. Smith v. Smith, 544 S.W.2d 121 (Tex.1976). It brings the entire case before the appellate court for review of all rulings of the trial court properly assigned as error. Ward v. Scarborough, 236 S.W. 441 (Tex.Com.App.1922, jdgmt adopted). Such a procedure is not available to a party who participated in the actual trial of the case in the lower court. Tex. Rev.Civ.Stat.Ann. art. 2249a (1971). An appellant on writ of error to review fundamental errors or legal errors in the judgment itself or in the trial leading to the judgment is not required to excuse his failure to appear at the trial, nor is he required to show a meritorious defense or cause of action. Spears v. Brown, 567 S.W.2d 544 (Tex.Civ.App.Texarkana 1978, not yet reported, writ filed); Stafford Const. Co., Inc. v. Martin, 531 S.W.2d 667 (Tex.Civ.App.El Paso 1975, no writ); and Middlemas v. Wright, 493 S.W.2d 282 (Tex.Civ.App.El Paso 1973, no writ).

When the error relied upon for reversal in a petition for writ of error is the trial court’s refusal to set aside a judgment, entered on failure of the defendant to appear for trial, upon equitable grounds alleged in a motion for new trial filed with the trial court at a time when the trial court still retained jurisdiction over the judgment, the appellant must show that his failure to attend the trial was not intentional or the result of conscious indifference on his part, but was due to an accident or mistake, and he must set up a meritorious defense to the cause of action which forms the basis of the judgment. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). In addition, the motion must be filed at a time when no material delay or other prejudice to the opposite party would result. If those requirements are met, the movant need not show a good excuse for his default, in a sense that he was free from negligence. Ward v. Nava, 488 S.W.2d 736 (Tex.1972). Only a slight excuse is required under such circumstances. Craddock v. Sunshine Bus Lines, supra.

A defendant such as White seeking relief from a judgment entered upon his failure to appear for trial is required to show in his motion for new trial that it is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, supra. As a condition to the granting of his motion for new trial, a defendant such as White should be required to reimburse plaintiff for costs of suit incurred in obtaining the judgment. United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958 (Tex.1976). White did not offer to reimburse Douglas for expenses incurred in obtaining the judgment under attack and under such circumstances he has not proven that the motion for new trial was filed at a time when the granting thereof would occasion no delay or otherwise work an injury to Douglas. United Beef Producers, Inc. v. Lookingbill, supra. Accordingly, the trial court did not err in refusing to set aside the judgment under attack. Under these circumstances it is not necessary for us to determine if White’s failure to appear was intentional or the result of conscious indifference, nor is it necessary for us to determine if White “set up” a meritorious defense in his motion for new trial.

White next contends that the judgment from which the appeal has been perfected is void and of no force and effect. On August 29,1977, the trial court rendered its first judgment, headed “Final Judgment.” On September 27, 1977, the court rendered a second judgment, headed “Corrected Judgment.” The two judgments were practically identical; however, the judgment headed “Corrected Judgment” did not provide for attorney’s fees while the initial judgment headed “Final Judgment” provided that Douglas was to recover $1,350.00 as attorney’s fees. White contends that the initial judgment providing for attorney’s fees was void because attorney’s fees were not recoverable under the circumstances and that the attempt to correct the void judgment was a nullity. This contention will be overruled. The trial court retained jurisdiction to reform or set aside its first judgment for a period of 30 days following rendition. Rule 329b, Tex.R. Civ.P.; B & M Mach. Co. v. Avionic Enterprises, Inc., 561 S.W.2d 558 (Tex.Civ.App. Texarkana 1978), rev’d per curiam, 566 S.W.2d 901 (Tex.1978). The record reflects that the second judgment reformed and, in effect, vacated the first judgment. Neither judgment was void. The mere fact that the trial court erroneously awarded attorney’s fees in the first judgment does not render that judgment or the corrected judgment void.

The judgment of the trial court will be affirmed.

      . Wood County is served by both the 114th and 115th District Courts.


author: O’QUINN, Justice.

text:
    CROW IRON WORKS et al., Appellants, v. TEXAS WATER RIGHTS COMMISSION et al., Appellees.
    No. 12698.
    Court of Civil Appeals of Texas, Austin.
    Aug. 9, 1978.
    Rehearing Denied Aug. 16, 1978.
    Frank R. Booth, Booth, Lloyd & Simmons, James W. Wilson, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellants.
    John L. Hill, Atty. Gen., Douglas G. Ca-room, Asst. Atty. Gen., Austin, for Texas Water Rights Commission.
    Neal P. King, King, Waite & Guerra, Mission, for intervenor Water Districts.
   O’QUINN, Justice.

Crow Iron Works and three other irriga-tors of land in the Rio Grande Valley brought this lawsuit against the Texas Water Rights Commission in July of 1975 seeking to set aside orders of the Commission denying requests of the irrigators for Class A Priority Water Allocations in lieu of existing Class B. Priorities.

The Commission denied relief on the ground that plaintiffs’ claims of water right had been adjudicated finally in 1969 by judgment of the Court of Civil Appeals in State v. Hidalgo County Water Control and Improvement District No. 18, 443 S.W.2d 728 (Tex.Civ.App. Corpus Christi 1969, writ ref’d n. r. e.), which the Commission ruled denied it authority to grant relief.

The cause was tried before the district court without aid of a jury, and the trial court in July of 1977 entered judgment that plaintiffs below take nothing by their suit. The trial court found that “. . . under the doctrine of res judicata the Plaintiffs are precluded by the judgment in State v. Hidalgo WCID No. 18 . . from asserting the claims which were the subject matter of the Plaintiffs’ petitions before the Texas Water Rights Commission . [and the Commission] was correct in denying the Plaintiffs’ petitions on that ground.”

Plaintiffs have appealed and bring the single point that it was error for the trial court to hold “. . that under the doctrine of res judicata the appellants were precluded by the judgment in the Rio Grande water rights case from asserting water rights which were conveyed to them after the inception of the litigation” in that cause, styled State v. Hidalgo County Water Control and Improvement District No. 18, supra.

We will reverse judgment of the trial court and render judgment setting aside the orders entered by the Texas Water Rights Commission and remanding the case to the Texas Department of Water Resources for consideration of appellants’ claims on the merits.

In the Valley Case, as the parties refer to State v. Hidalgo County Water Control and Improvement District No. 18, supra, the Court of Civil Appeals found that some water rights for irrigators in the Rio Grande Valley fell into (a) legal and (b) equitable classes. These two classes were designated “Class A (Legal)” and “Class B (Equitable)” in the appellate court’s opinion.

Class A rights were given those persons or entities who acquired right to use waters of the Rio Grande by virtue of having complied with the appropriation statutes of the state or whose rights had been recognized by the state, particularly those users holding under a legal “certified filing.” (443 S.W.2d 748). Class B rights, equitable in nature and lower on the weighted priority scale, were accorded those users who had been making a good faith use of the waters of the Rio Grande for irrigation purposes prior to institution of the Valley Case in 1956 but who did not qualify as Class A users. (443 S.W.2d 749).

It does not appear to be in dispute that, as pointed out by appellants, many holders of Class A rights acquired their rights initially, not as contemplated by statutes, but by starting irrigation and later acquiring title to an unexercised portion of a permit or certified filing which covered their land. Appellants assert that although they hold Class B rights, factual situations governing their lands are identical to factual situations of many other users who were adjudicated Class A rights under the judgment in the Valley Case. The difference, they urge, lies in the fact that appellants’ water rights conveyances were dated after inception of the Valley Case litigation, whereas conveyances to the users accorded Class A rights were dated prior to inception of the litigation. Appellants contend that although they were denied Class A rights in the Valley Case, denial was on grounds other than the merits and without prejudice to re-assertion in later presentment of their claims.

Appellants in this suit petitioned the Texas Water Rights Commission in 1973 to grant them Class A priority in lieu of the Class B priority confirmed to them in the Valley Case. The basis of their petition was the acquisition of theretofore unuti-lized and undeveloped legal water rights subsequent to the filing of the Valley Case in 1956 but prior to the lis pendens notice in 1962 and prior to the entry of judgment in 1966. Appellants, or their predecessors in interest, asserted their claim to Class A rights in district court and later in the Court of Civil Appeals in the Valley Case, but because their legal water rights were acquired after the court had taken judicial custody of the American waters of the Rio Grande, the claims of appellants were not recognized as Class A (Legal) rights.

In this controversy the parties join issue on the meaning to be found in that part of the supplemental opinion of the Court of Civil Appeals which dealt with appellants’ claim that their equitable water rights had been raised to Class A (Legal) status through acquisition of undeveloped legal rights.

The Court of Civil Appeals, in its supplemental opinion in the Valley Case, after reviewing the transfer background of the rights now held by Crow Iron Works and noting that the date of the most recent transfer was “. . . long after the court took judicial custody of the American waters of the Rio Grande,” reserved further comment for its fuller statement referring to Hidalgo County Water Control and Improvement District No. Thirteen, wherein the Court pointed out:

“It may be that such state authority as will control and regulate the waters of the Rio Grande after the determination of this suit would be empowered to make some adjustment in this situation, but neither the trial court nor this court in the present cause can recognize contracts or actions taken by parties, pendente lite, while the Rio Grande waters were in judicial custody.” (Emphasis added). (Supplemental Opinion, p. 11).

Such state authority as would “control and regulate the waters of the Rio Grande after determination of” the Valley Case was clearly specified by the Court of Civil Appeals in writing on motion for rehearing:

“After the rendition of this opinion, the Water Rights Adjudication Act became effective and Section 8 thereof authorizes and enjoins the Texas Water Rights Commission to administer adjudicated water rights. The term ‘adjudicated water rights’ embraces those adjudicated in a judicial as well as an administrative proceeding, and the Act is, therefore, applicable to the waters of the Rio Grande and so far as administration is concerned, such Act supersedes the administrative procedure set forth in the judgment rendered herein. Any power which under the wording of the judgment might remain in the trial court to enlarge, modify or abrogate any right recognized by the judgment is likewise superseded by the provisions of the Water Rights Adjudication Act.” (443 S.W.2d 761).

The court expressly incorporated the supplemental opinion with the reported opinion in its “Judgment on Rehearing” in the Valley Case.

In the reported main opinion of the Court of Civil Appeals the court stated the reason the court could not at that time raise the equitable claims to the status of legal rights. For example, the court, after examining the transfer history of the rights acquired by Gustave Ring, stated:

“It appears that subsequent to the filing of this suit and the trial court’s action in taking judicial custody of the American waters of the Rio Grande, there were in some instances additional contracts executed by the district which, so it is contended, operated to vest a legal title to a water right in some of the Willacy County claimants. Because these contracts or purported conveyances were executed pendente lite, we cannot recognize them as forming a basis for an equitable claim or raising an equitable claim to a legal status.” (Emphasis added). (443 S.W.2d 754, col. 2).

The specific issue in this cause is whether the Court of Civil Appeals preserved for appellants their right to petition the Water Rights Commission, or its successor, for change of their water rights to Class A status by excluding that issue from the scope of adjudication in the Valley Case, or whether, on the contrary, the court denied appellants’ claims because the rights were acquired pendente lite.

The contention of the Attorney General in behalf of the Water Rights Commission is that the undeveloped legal water rights acquired after 1956 were invalidated by the judgment of the Court of Civil Appeals and that the determination appellants at that time were entitled to Class B rights is res judicata of their claim now for Class A status. Appellants contend that their claims are not barred under the doctrine of res judicata because the Court of Civil Appeals in its opinion indicated that validity of acquisitions pendente lite was not passed on, therefore not adjudicated, and the judgment therefore is not a bar to subsequent litigation. In reply, the State takes the view that the language of the opinion did not preserve the claim for future adjudication and that “. . reference to a state authority making an adjustment in the situation must be regarded as a well intentioned, and unfortunate, attempt to soften the blow of the court’s actual decision.”

After careful examination and study of the reported opinion and the supplemental opinions of the Court of Civil Appeals in the Valley Case we conclude and hold that the court intended to and did exclude from its adjudication the question of validity of acquisitions pendente lite of undeveloped legal water rights. The court at least twice explained that after the waters of the Rio Grande came into custody of the trial court, the courts were unable to recognize actions taken by parties pendente lite.

The fact that the court suggested “adjustments in this situation” could be made by “such state authority as will control and regulate the waters of the Rio Grande” could hardly be regarded as an attempt at amelioration of its decision, as suggested by the State, but actually we think demonstrates the prescience one might have expected of the eminent justice who wrote the opinion and of his associates who participated and concurred. (443 S.W.2d 760) The language of that suggestion may be termed an acceptable mode of giving advice to counsel without violating the bar against advisory opinions. For an example of similar far-reaching advice by the Supreme Court see City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601, 607 (1952).

The State insists that the judgment of the Court of Civil Appeals is broad and clearly encompasses adjudication of the matters appellants contend the court excluded from determination in its opinion. The Supreme Court stated the controlling rule in 1897 in this language:

“While the prima facie effect of a general decree is to adjudicate every issue raised by the pleadings, it has never been held, in any case that we are aware of, that a decree adjudicates any issue which the court therein expressly excludes from its determination.” Groesbeeck v. Crow, 91 Tex. 74, 40 S.W. 1028, 1030 (1897).

In an earlier opinion the Supreme Court recognized the general principle applicable to final judgments but stated the exception, or limitation, that where the record shows a matter was not passed on, the principle must yield as to such matter and the judgment is not as to it res judicata. Teal v. Terrell, 48 Tex. 491, 508-509 (1878). There the Supreme Court said:

“While it is not controverted, that, as a general principle, the judgment or decree of a court of competent jurisdiction is not only final as to the matters actually de- ' termined thereby, but also upon all matters properly involved in the issue passed upon and determined by the court; and that all matters put in litigation in a previous suit, and which could have been adjudicated therein, are concluded by it . . But certainly it cannot be so held, where the record clearly shows that the matter in question was not in fact passed upon or adjudicated by the court; and this, too, when it could not, under the pleading and verdict, have been decided adversely to the party against whom the judgment is claimed to operate as res judicata.” (48 Tex. 508-9).

Even when the subject matter is the same and the parties are identical in two separate suits, the judgment of the first cause will not bar the second lawsuit asserting a different cause of action relating to the same subject matter. Pishaway v. Runnels, 71 Tex. 352, 9 S.W. 260 (1888); Allen v. Frank, 252 S.W. 347, 351 (Tex.Civ.App. Beaumont 1923, no writ).

We consider it clear that the Court of Civil Appeals in the Valley Case refused to recognize the claims of appellants and raise them to legal status because the conveyances upon which appellants relied were executed pendente lite and the appellate court had no authority to consider the claims. We conclude that the Court of Civil Appeals therefore did not purport to, and did not, pass on or adjudicate the merits of the claims made by appellants. The Court did recognize that the state authority later to control and regulate the waters of the Rio Grande, after conclusion of the Valley Case, would in the exercise of its statutory powers make appropriate adjustments in the situation.

Under the authorities reviewed, we hold that the judgment in the Valley Case is not res judicata as to the claims appellants sought to have heard and considered by the Texas Water Rights Commission.

Several water districts, parties to the Valley Case, have intervened in this case and on appeal contend that the judgment of the trial court was “right for the wrong reason” because the “Texas Water Rights Commission had no original jurisdiction of the proceeding appealed.” This position is untenable and without merit, and the Attorney General apparently does not share the view of intervenors and instead contends that the Commission had authority necessary to grant the relief requested but could not exercise that authority for the reason that judgment in the Valley Case was res judicata of appellants’ claims.

We hold that the Texas Water Rights Commission had, and its successor now has, jurisdiction to hear and decide the petition of appellants requesting Class A Priority Water Allocations in lieu of their existing Class B Priority Water Allocations. (Water Rights Adjudication Act, Secs. 11.-301 et seq., Texas Water Code, V.A.T.S., derived from former Secs. 5.301 et seq., Texas Water Code, Subchapter G.)

For the reasons stated, judgment of the trial court is reversed, and judgment is rendered that the cause be remanded to the Texas Department of Water Resources for consideration of the claims of appellants on the merits of the claims.

      . Plaintiffs below, now appellants, are Crow Iron Works, L. M. B. Corporation, Hidalgo County Water Control and Improvement District No. Fifteen, and Gustave Ring. The Texas Department of Water Resources is appellee as statutory successor of the Texas Water Rights Commission under provisions of Acts 1977, 65th Leg., p. 2207, ch. 870, secs. 8 through 12 (pp. 2343-4), effective September 1, 1977. Joined as appellees are parties intervening below: Cameron Water Improvement District No. Two, Donna Irrigation District Hidalgo County No. One, Hidalgo County Water Improvement District No. Three, and Hidalgo County Water Control and Improvement District No. Fourteen. Briefs for the four intervening water districts are also filed in behalf of three additional water districts.


author: YOUNG, Justice.

text:
    Juanita MUNOZ, Appellant, v. The STATE of Texas, Appellee.
    No. 1393.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.

      J. L. Covington, Brownsville, for appellant.
    S. N. Snedeker, Dist. Atty., Brownsville, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a judgment temporarily committing appellant, Juanita Munoz, to the Rio Grande State Center for Mental Health and Mental Retardation. On June 9,1978, Oscar Munoz, Juanita Munoz’s husband, filed an application to commit appellant to a mental hospital for temporary hospitalization. On the same day, appellant was examined by Dr. Jorge Viada and Dr. Jorge A. Cardenas and was committed for temporary emergency treatment. On June 19, 1978, the court appointed J. L. Covington as attorney ad litem for Juanita Munoz. That same day, the court held its hearing on the petition for temporary hospitalization. No evidence was adduced at the hearing on the petition other than the certificates of the two examining physicians mentioned above. Munoz timely objected to the failure of the State of Texas to introduce evidence at the hearing. Upon considering the medical certificates, which stated that the doctors were of the opinion that Mrs. Munoz required hospitalization in a mental hospital, the court ordered Juanita Munoz committed for a period of 90 days for observation and treatment. Covington was awarded $25.00 for his services as attorney ad litem for Juanita Munoz and as attorney ad litem in another cause to determine whether a person should be committed to the state hospital for treatment of alcoholism. Munoz appeals. We reverse.

The appeal is governed by Tex.Rev.Civ. StatAnn. art. 5547-39a (Supp.1978):

“The person ordered committed may appeal the Order of Temporary Hospitalization by filing written notice thereof with the County Court within five (5) days after the Order of Temporary Hospitalization is entered.”

Section 5547-89b further provides that when notice of the appeal has been filed with the clerk, the clerk shall immediately send a certified copy of the transcript of the proceedings to the Court of Civil Appeals.

If the appeal is based on evidentiary matters, findings of fact and a statement of facts would be necessary for proper review in such a case. In the event the trial court, in response to a prompt written request, fails to file findings of fact prior to the completion of the transcript, the appellant should request the clerk of the trial court to include the motion requesting such findings of fact in the transcript. The trial court’s findings subsequently filed can be presented to the appellate court by, supplemental transcript. Such original transcript gives the Court of Civil Appeals jurisdiction of the case. The appellate court could then enter such orders as may be necessary to expedite and advance the case on the docket to give such case the preferential setting envisioned by Section 5547-39d.

This type of proceeding which may deprive the liberty of the party under temporary hospitalization is in the nature of a habeas corpus. On appeal, the appellate court needs the cooperation of the trial judge, the clerk of that court, the court reporter and the attorneys involved to give proper consideration to the matters presented on appeal.

Appellant, through her attorney, Covington, brings 22 points of error. We initially consider point 19 which states that the lower court erred in committing appellant to a mental hospital on the basis of the certificates of medical examination, since such certificates were not such competent medical testimony or psychiatric testimony as required by Tex.Const. art. I § 15-a. We agree.

Tex.Const. art. I § 15-a provides:

“No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases . . .”

In this connection, the Legislative provided in Tex.Rev.Civ.Stat.Ann. art. 5547-37 (1958):

“If at the hearing no one opposes temporary hospitalization of the proposed patient, the court may make its findings upon the basis of the Certificates of Medical Examination for Mental Illness on file with the court.”

The trial court, in our case, filed findings of fact and conclusions of law. Finding of fact number 14 states, “Juanita Munoz timely objected to the failure of the State of Texas to introduce evidence at the hearing.” We think this finding is sufficient to show that appellant opposed her* temporary hospitalization. Thus, Article 5547-37 would not control this proceeding, and it was error for the trial court to make its findings over appellant’s objection, without hearing testimony. We think under the facts herein that the Constitution and the Code require both a medical and a legal determination of the grounds on which Munoz is to be deprived of her liberty. Moss v. State, 539 S.W.2d 936, 950 (Tex.Civ.App.—Dallas 1976, no writ). Moss provides an excellent analysis of the type of problem facing this Court, and to that part of the opinion that is relevant to the problem before us, we are in accord with its reasoning. Appellant’s point 19 is sustained.

Appellant Munoz contends also that she was wrongfully denied an appearance bond pending appeal because of her status. Tex. Rev.Civ.Stat.Ann. art. 5547-39c (Supp.1978) provides:

“Pending the appeal, the County Judge or District Judge in whose court the cause is pending may stay the Order of Temporary Hospitalization, and release the proposed patient from custody if the Judge is satisfied that the proposed patient is not dangerous to himself or to others, and provided that the proposed patient posts an appearance bond in an amount to be determined by the Court.”

In this case, Munoz’s attorney filed a motion to stay the temporary hospitalization pending appeal and attached thereto an affidavit in forma pauperis. The trial court held a hearing on this motion and recited in its order:

“. . . the Court having considered said motion and the affidavit of Juanita Munoz, and it appearing that the said Juanita Munoz is unable to post an appearance bond,
It is therefore ORDERED, that said motion be, . denied.”

We have no statement of facts or other record of any evidence introduced at this hearing; therefore we are unable to review this point of error.

Subsequent to the filing of the transcript in this cause, the State filed several motions in the County Court at Law to dismiss the suit, release the appellant and increase the attorney’s fee awarded appellant’s attorney. The court granted these motions. The State now moves that we reverse the judgment and remand this cause, alleging the matters before us are moot. The court’s action was taken after jurisdiction of this case vested exclusively in the Court of Civil Appeals; i. e., upon our receipt of the transcript. See Moss v. State, supra. Accordingly, these subsequent orders have no force or effect. The State’s motion in this Court is therefore denied.

The appellant also complains of the amount of the attorney’s fee awarded by the trial court. In view of our disposition of this appeal and the State’s motion to award $500.00 attorney’s fee, it is not necessary for us to rule on this point of error.

Because of the error hereinabove set out, and because the record shows that the evidence is factually insufficient to support the trial court’s order of commitment, we, accordingly, reverse the order for temporary hospitalization and order the cause to be remanded to the County Court of Cameron County for another hearing. It is here ordered by this Court that all treatment of the appellant for mental illness be discontinued and that she be released from custody-

REVERSED and cause REMANDED.


author: AKIN, Justice.

text:
    Oscar E. REED and Doris E. Reed, Appellants, v. Charles B. REED, Charles N. Townsend, Jr., Individually and as co-independent Executors of the Estate of Albert L. Reed, Deceased, Judy Townsend, Meda Reed and Lora Townsend, Individually, and Barbara L. Goodwin-Lantz and Linda Jo Powell, Appellees.
    No. 19566.
    Court of Civil Appeal of Texas, Dallas.
    July 6, 1978.
    Rehearing Denied Aug. 18, 1978.

      Oscar E. Reed, Houston, for appellants.
    Thomas A. Giltner, Lee Shipp, Dallas, for appellees.
   AKIN, Justice.

This is a will construction case. Plaintiffs filed a declaratory judgment suit against all interested parties asking the court to construe the will of Albert L. Reed, Deceased, in such a manner that title to a certain duplex located on Westway in Highland Park would vest in plaintiffs and two of the defendants rather than be sold and the proceeds distributed to the residuary beneficiaries. The trial court granted plaintiffs’ motion for summary judgment decreeing that title to the Westway property vested in them and the two defendants named in paragraph 2 of the will. Two residuary beneficiaries appeal. We affirm.

The part of the will in dispute is the following paragraph:

I give, devise and bequeath unto Linda Jo Goodwin, Barbara Lee Lantz, nee Goodwin, of Raleigh, North Carolina, Mrs. Judy Townsend, and Charles N. Townsend, Jr., as tenants in common, each an undivided one-fourth (¼) interest in the ground and apartment building and other improvements located at 4400-4402 West-way in the town of Highland Park, Dallas County, Texas, to use and occupy or rent as they may mutually agree upon and determine. In the event of disagreement between them as to the use or rental of the said two apartments at 4400 and 4402 Westway, I direct that my Executors hereinafter appointed shall give to each of the said beneficiaries named in sub-paragraph 2.1 the right to purchase the said two apartments, garage and servant quarters and the land on which they are situated for a consideration my Executor shall deem fair, the proceeds of any such sale to be divided equally between those beneficiaries whose interest are sold to the purchasing beneficiary. In the event no such beneficiary is willing to purchase such property at a price determined to be fair by my Executors (the beneficiaries being unable to agree upon the use of such apartments), then I authorize and empower my Executors to sell the same on such terms and conditions and for such price . . . to be made payable to the Executors for the use and benefit of the beneficiaries set forth in Section IV of this will according to their respective ⅛⅛ interest each . . . Any such sale so made by my Executors shall be final and binding upon all beneficiaries under this will. [Emphasis added]

Appellants argue that under this language, title to the Westway property did not vest in the four persons named in this section, but simply gave them the right to use, occupy or rent the premises and that the only way for them to obtain title was to follow the procedure for purchase set forth

in the latter part of this paragraph. We cannot agree. Appellants’ contention ignores the words “I give, devise and bequeath” which are words of conveyance. In Texas, the law is clearly established that where it does not appear from the language of a will that a lesser estate was intended to be created, the devise will be deemed a fee simple. Roberts v. Drake, 380 S.W.2d 657, 660 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.); Pritchett v. Badgett, 251 S.W.2d 776, 777 (Tex.Civ.App.—El Paso 1953, writ ref’d); Rogers v. Nixon, 275 S.W.2d 197 (Tex.Civ.App.—San Antonio 1955, writ ref’d); Zint v. Crofton, 563 S.W.2d 287 (Tex.Civ.App.—Amarillo 1978, writ ref’d n. r. e.). In Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149, 150 (1931), the supreme court held the following clause to vest fee simple title:

I give, devise and bequeath to my wife, Mrs. S. P. Frame, my farm located in Bexar County, Texas . . . to be used by her during the term of her natural life, but she shall not sell or dispose of the same in any way during her lifetime, provided, however, that she may dispose of the same by will to whomsoever she may desire .

The court reasoned that she received the farm in fee simple because a reading of the will indicated that it was the intent and purpose of the testator to devise the property to his wife and then to restrict her right of alienation, which that court held void. In order for a testator to give a qualified estate, rather than an absolute one, the language of the testator must be such that it clearly states his intention so to do. Randall v. Estes, 218 S.W.2d 338 (Tex.Civ.App.—Dallas 1949, writ ref’d n. r. e.).

Similarly, in our case the use clause in the will does not limit or reduce the fee simple estate devised to the four co-tenants. The use of such phrases as “use and enjoyment” and “use and benefit” are not generally employed as words of limitation upon the estate given. Rogers v. Nixon, supra; Medlin v. Medlin, 203 S.W.2d 635, 639 (Tex.Civ.App.—Amarillo 1947, writ ref’d). Indeed, the broad general use clause contained in Albert Reed’s will is consistent with the granting of a fee simple estate rather than a lesser estate.

Although the language providing that in the event of disagreement as to use the four co-tenants have the right to purchase the property may indicate that they had no vested right in the property until they purchased it, the subsequent provision specifying that in the event of such a purchase the proceeds are to be divided among the beneficiaries whose interests are sold to the purchasing beneficiary is inconsistent with an intent to vest fee simple title in them. If possible, a court should construe a clause to create a vested estate and should adopt that construction which permits the earliest vesting of title in the first taker. Roberts v. Drake, supra; Zint v. Crofton, supra.

The last clause of the paragraph which provides that if none of the parties named in the paragraph purchase the property, the executors have the power to sell it and divide the proceeds among the residuary beneficiaries, is repugnant to the construction that Albert Reed intended to vest fee simple title in Barbara Goodwin-Lantz, Linda Jo Powell and Charles and Judy Townsend. The rule in Texas is that, in the event of repugnancy, that construction which permits immediate vesting of the entire estate is favored and where this is in doubt, the doubt will be resolved in favor of the vesting of title at the earliest possible time. Such a construction avoids a violation of the rule against perpetuities and thus upholds the will. Roberts v. Drake, supra, at 660; Zint v. Crofton, supra, at 290. Furthermore, where there is an ambiguity as to the limitation attempted or a doubt as to its application, the larger estate will vest. Roberts v. Nixon, supra. Consequently, under all the rules of will construction, we hold that the trial court correctly construed the will of Albert L. Reed as vesting fee simple title in Barbara Goodwin-Lantz, Linda Jo Powell, Charles N. Townsend, Jr. and Judy Townsend.

Appellants also argue that because two of the tenants-in-common of the duplex brought a suit seeking a declaratory judgment construing the will, they, as well as the named defendant beneficiaries, forfeited any interest that they were to receive because of the forfeiture clause in the will. Paragraph 6 of the will provides:

If any beneficiary hereunder shall contest the probate or validity of this will or any provision hereof, or shall institute or join in any suit (except as a party defendant) to contest the validity of this will or to prevent any provisions thereof from being carried out in accordance with its terms, then all such properties or benefits provided for such beneficiary are revoked and all such properties or benefits provided for such beneficiary shall pass to the beneficiaries named in Paragraph IV of this will (other than such beneficiary), share and share alike . . . [Emphasis added]

We cannot agree with this contention. In the first place, the suit brought by plaintiffs was not in the nature of a suit to contest the probate of the will or to question the validity of any part thereof, but was a suit brought to ascertain the testator’s intent and to enforce that intent. Such a suit is not an effort to change the testator’s intent. Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527, 530 (1932). Accordingly, we conclude that the forfeiture provision is inapplicable to plaintiffs. With respect to the two defendants who were named as tenants-in-common, the forfeiture provision is inapplicable by its very terms.

Affirmed.

GUITTARD, C. J., not participating.


author: JONES, Justice. LUKOWSKY, Justice,

text:
    Robert Earl COOPER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1978.
    Rehearing Denied Aug. 22, 1978.
    Jack Emory Farley, Public Defender, William M. Radigan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Robert Earl Cooper appeals from judgments of conviction imposing a prison term of 50 years on a charge of first-degree rape, and a sentence of 5 years for second-degree robbery in conformity with a jury’s verdict. KRS 510.040(l)(a) and KRS 515.030(l)(a). The trial court directed that the sentences be served concurrently. Not satisfied with the result Cooper prosecutes this appeal.

There are other questions, but the principal issues presented for decision are: (1) whether the trial court erred by overruling Cooper’s motion for directed verdict on the charge of first-degree rape, and, (2) whether the trial court erred by refusing Cooper’s requested instruction on attempted rape in the first degree.

The victim, Allie Williams, 74 years of age, testified that about 10 A.M. on August 16,1977, she was on her back porch washing clothes. A man, later identified as Cooper, approached her home and explained that he was looking for a Mr. Henson who was supposed to live in the area. With Mrs. Williams’ permission, the man used her telephone. Suddenly, he came out of her house, grabbed her by the arms, and dragged her into the living room. Once inside, the man began choking her. He took her by the hand and asked for her money. She gave him $13.00 — all she had. At that point, Mrs. Williams blacked out and had no memory of what took place until she awakened in the hospital. She had bruises on her arms, legs, neck, chin, and face. She was injured in her private parts.

On August 22, 1977, the investigating officers were told by a neighbor of Mrs. Williams that a man fitting the description of Cooper was in the vicinity where she lived, and that he was driving a white car with a black top in the direction of Mrs. Williams’ house. Based on that information the officers went to Cooper’s home and requested that he accompany them to the courthouse. There they explained his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After talking briefly with his brother Michael, Cooper told the officers that he raped and robbed Mrs. Williams. His oral statement was reduced to writing and subscribed and sworn to before the County Judge Pro Tern of Marshall County. The pertinent portion of Cooper’s confession is as follows:

“. . .1 went to the next house and parked on a bridge and went to the front door and knocked. No one answered and I went to the back door and she [Mrs. Williams] was hanging up clothes and I asked to use her phone. I used her phone and went back out and started talking to her about Ralph Henson . . . she told me she never went anywhere but church and cemetery. I asked her about her husband and she said she didn’t have a husband. I started talking and then took her by the arm and took her into the house. I then raped her ... I took the $10.00 and left . . there was $2.00 in the back of her billfold. I took that also . . when I raped her I had my hands around her neck and was choking her. I took off her panties and raped her. When I left her she was on the bed.”

Cooper, who was 18 years old at the time it was alleged that he robbed and raped Mrs. Williams, testified in his own behalf. His testimony was fairly consistent with the confession made to the officers. Although Cooper had confessed to the rape and robbery of Mrs. Williams when questioned by the officers, at trial he repudiated a part of the confession. He maintained that Mrs. Williams made what he construed to be a sexual advance. However, the crux of his testimony at trial established that he robbed and raped Mrs. Williams, and that he choked her. He testified that she discussed religion with him, put her hand on his leg, and that he put his hand on hers. He described the incident in this fashion:

“. . First she put her hand on my leg again and I put my hand on hers and that’s when I kissed her . . . and that’s when I put my hand on her shoulder and she pulled my hand around to this side and that’s when she laid back on the bed . . . and she didn’t offer no resistance . . . and ... we laid there for a minute or two and I got up on top of her . . when I rolled on top of her and I kissed her and reached down and pulled up her dress . I got back up on top of her and then I reached my hand down there to the private part of her body and that’s when she started kicking . . . and sort of raised about half way up like . I don’t know, but she acted like she went crazy; and that’s when I put my hand on her throat and pushed her back on the bed and was holding her; and I got about half way off; and she brought her hands about half way towards my face; and I pushed her back and I still had my hand on her throat; and I just pushed her back and myself up away from her. . . . ”

Cooper testified that when he left Mrs. Williams’ home she acted like she was “in shock or something. She was just swinging freely in the air and kicking and stuff.” Although Cooper was 18 years of age at the time and had completed the 8th grade, he told the jury that he thought the term “rape” meant “any time you do something to a woman without her will, as far as involving her private parts of her body.” Cooper also admitted that when he rolled back on top of Mrs. Williams he unzipped his pants. He testified: “I just laid on top of her and sort of like kissed her again; and then I reached down . . . and she started kicking and struggling.” Today’s society is sex oriented to the point of saturation. Television, X and R rated movies, the news media and magazines have made it so. Por a healthy, normal 18-year-old man to assert that he didn’t know what the term “rape” means borders on the fringe of absurdity.

Cooper strenuously argues that the evidence presented at trial was insufficient to warrant submitting to the jury the issue of whether Mrs. Williams in the course of being raped sustained a serious physical injury. He bases that argument on the testimony of Dr. Hugh Houston, her family physician. Thus, it is necessary for the court to review pertinent portions of Dr. Houston’s testimony.

Mrs. Williams had been a patient of Dr. Houston for several years. He was familiar with her general physical condition prior to August 16, 1977. He examined her at the Murray Hospital at 2:00 P.M. on that date. Dr. Houston testified that Mrs. Williams’ physical condition prior to August 16 was “poor, mainly because of a coronary pulmonary condition.” He testified also that she had bronchitis, for which she took medication and that she “takes bouts of antibiotics for her infection.” When Dr. Houston examined Mrs. Williams he found her to be in “mental shock, agitated, could not speak or would not speak, and was withdrawn like some frightened animal.” (Emphasis added). Because of her mental shock Dr. Houston waited two hours before he completed his examination. His examination revealed that Mrs. Williams had pressure areas on her throat, “which to me meant she had been choked. Then she had bruises on the joint of her elbow and on her body. She had a large bruised area on the anterior symphysismons veneria. She had bruises around her vagina and bleeding around her vagina. . . . ” Dr. Houston also testified that Mrs. Williams had lacerations in the posterior part of the vagina just beyond the vestibule. The doctor determined from the trauma and the bleeding that Mrs. Williams had been sexually molested. On being questioned about whether there was evidence of penetration, the doctor’s answer was in the affirmative. He said, “I think there had been penetration.” Being pressed on that point the doctor testified, “I think the bruises and the tear of her vagina is evidence enough she was sexually molested and I think there was penetration in the vagina.” The doctor was asked if the injuries Mrs. Williams received created a substantial risk of death. His response was, “She’s a 74-year-old woman with heart trouble and chronic lung disease . I don’t they (sic) they would cause death but I think her fear was a pretty nice risk." (Emphasis added). On being asked if he considered the injuries to create a substantial risk of death, he said, “No, I think the risk of death was more just from fear than it was from any bruises. The woman was scared to death.” (Emphasis added).

At the conclusion of all of the evidence for the Commonwealth, Cooper’s lawyer moved for a directed verdict. He did not, however, move for a directed verdict at the conclusion of all the evidence. On a number of occasions this court has held that a motion for a directed verdict made at the close of the Commonwealth’s case is not sufficient to preserve error unless renewed at the close of all of the evidence. However, this court has held that the appropriate procedure to preserve a matter for review is for the appellant, at the close of all of the evidence and before the instructions are given, to object to the giving of instructions or to tender a proper instruction supporting his theory of the case. See Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977). At the close of all of the evidence Cooper’s trial lawyer objected to the trial court’s instruction on first-degree rape, on the ground there was no testimony that Mrs. Williams had received a serious physical injury as defined by KRS 500.080(15). Cooper’s lawyer also requested an instruction on attempted rape in the first degree, although there is nothing in the record to indicate that he tendered such an instruction. Thus, these alleged errors were preserved for review.

As to the count of first-degree rape, the trial court instructed the jury on serious physical injury, first-degree sexual abuse, and reasonable doubt. He also gave the jury definitions of sexual intercourse, sexual contact, forcible compulsion, and serious physical injury. The trial court defined “serious physical injury” as “physical injury which creates a substantial risk of death, (Emphasis added), prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.” That is the verbatim definition contained in KRS 500.080(15).

This court is of the opinion that the physical injuries inflicted upon Mrs. Williams during the course of the rape created a substantial risk of death. She was 74 years old and in poor health. She suffered from a chronic pulmonary condition. Preceding and during the rape, she was choked and extensively bruised. The mental trauma was such that her mind retreated from the horror of what was happening to her, and she blacked out. This court is of the further opinion that “substantial risk of death” turns on the unique circumstances of an individual case. Considering the totality of the evidence and the circumstances of this case, the physical injuries sustained were sufficient to support a conclusion that a substantial risk of death had been created. Because Mrs. Williams didn’t die on that occasion did not nor could it erase the fact of “substantial risk of death.”

This court now directs its attention to the alleged error that the trial court should have instructed the jury on Cooper’s theory of attempted rape.

Cooper’s version of the events simply does not support the theory of attempted rape. Although he confessed to raping Mrs. Williams, he tried to repudiate that confession by maintaining that she made what he construed to be a sexual advance. When Mrs. Williams put her hand on his leg he responded and kissed her. When she resisted and started to struggle he succeeded in breaking away from Mrs. Williams and in so doing, choked her. Cooper’s testimony in its most favorable light clearly shows that his intent to attempt the rape was totally lacking. The totality of the evidence reveals that he intended to and did rape her.

Where there was no evidence supporting Cooper’s contention that he was entitled to an instruction on attempted rape, such an instruction was not warranted. See Buchenburger v. Commonwealth, Ky., 482 S.W.2d 747 (1972); Couch v. Commonwealth, 479 S.W.2d 636 (1972). In Blanton v. Commonwealth, Ky., 429 S.W.2d 407 (1968), the appellant, after being convicted of rape, argued that he was entitled to an instruction on the lesser degree offense of detaining a female against her will with intent to have carnal knowledge. The pros-ecutrix testified that she had been penetrated by the appellant. The medical testimony was uncertain about penetration. The doctor testified that he was not able to tell whether penetration had occurred. He would not testify that penetration had or had not taken place. At trial the appellant asserted an alibi defense. Under the totality of the evidence of that case this court rejected the appellant’s contention by stating:

“Since the Commonwealth’s evidence showed appellant had committed rape and the appellant’s testimony showed he was not guilty by reason of his alibi, the issue in the case was adequately presented to the jury by an instruction covering the crime of rape and upon reasonable doubt.” Blanton v. Commonwealth, supra, at 410.

Recently this court stated:

“An instruction on a lesser included offense should not be given unless the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but conclude that he is guilty of the lesser included offense.” Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977).

This court has reviewed the other alleged assignments of error and find them to be totally without merit.

The judgment is affirmed.

JONES, CLAYTON, REED and STERN-BERG, JJ., concur.

LUKOWSKY, J., files a dissenting opinion in whicíi PALMORE, C. J., joins.

STEPHENSON, J., joins in part one of the dissent.

LUKOWSKY, Justice,

dissenting.

I would reverse the judgment and remand the case for a new trial for two reasons.

First, there was no evidence adduced by the Commonwealth which could fairly be said to support a finding of “serious physical injury” to Mrs. Williams. Fainting, bruises and a small laceration in the posteri- or portion of the vagina simply do not create a substantial risk of death, or cause serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ as required by KRS 500.-080(15). Mrs. Williams completely recovered from these injuries within two to three weeks. These are mere physical injuries as defined by KRS 500.080(13). The instructions given by the-trial judge were prejudi-cially erroneous in that they permitted, over the objection of Cooper, the jury to find that these injuries could raise the conduct in question to the status of a Class A felony. Luttrell v. Commonwealth, Ky., 554 S.W.2d 75, 78-79 (1977).

Second, the evidence taken as a whole is sufficient not only to support a conviction of attempted first-degree rape, but also to justify a reasonable doubt as to whether Cooper is guilty of the higher or lower offense. There was no direct evidence of penetration of the labia by the penis. Because of her fainting spell, Mrs. Williams was unable to testify to penetration. It would have to be inferred by the jury from circumstantial evidence, i. e., primarily, the tear in the vagina and the bruise on the mons pubis, which Mrs. Williams’ attending physician admitted was equivocal to the point that the incident was “an attempted if not successful rape”. Cooper, in his testimony, denied penetration, but admitted touching Mrs. Williams’ vaginal area with his hands which could explain both the bruise and the tear. The trial judge committed prejudicial error when he declined to give a requested instruction on attempted first-degree rape. Isaacs, v. Commonwealth, Ky., 553 S.W.2d 843, 844-845 (1977); Muncie v. Commonwealth, 308 Ky. 155, 213 S.W.2d 1019 (1948).

I am authorized to state that PALMORE, C. J., joins in this dissent and that STEPHENSON, J., joins in part one of this dissent.


author: REED, Justice.

text:
    D. D. WILLIAMSON & COMPANY, INC., Movant, v. ALLIED CHEMICAL CORPORATION, Respondent.
    Supreme Court of Kentucky.
    July 3, 1978.
    Rehearing Denied Sept. 12, 1978.

      Eugene L. Mosley, Louisville, for movant.
    Henry A. Triplett, Louisville, for respondent.
   REED, Justice.

The issue for consideration is the effect of the decision in Orr v. Coleman, Ky., 455 S.W.2d 59 (1970), on the rule that requires the amount received from one co-tortfeasor in partial satisfaction of the whole claim to be credited against the full amount of damages as subsequently determined in a trial against the other co-tortfeasor.

PB&S Chemical Company sold a quantity of aqua ammonia to D. D. Williamson Company. The ammonia had been manufactured by Allied Chemical Company. Williamson claimed the ammonia was defective and that the defect caused damages to the extent of $45,000. Williamson sued PB&S and Allied as co-tortfeasors. Judgment was sought against the defendants, “jointly and severally,” in the total amount of $45,-000. Allied sought “indemnity or contribution” against PB&S. PB&S cross-claimed against Allied.

Shortly before the trial the plaintiff, Williamson, settled with defendant PB&S for $16,500. Plaintiff thereupon proceeded to trial against the remaining defendant, Allied. The jury found that the plaintiff’s total damages were $20,000 and each defendant was responsible for 50% of the total damages. The trial judge entered judgment for the plaintiff against the nonset-tling defendant, Allied, in the amount of $10,000. Later, the judge, upon Allied’s motion, reduced the amount of plaintiff’s judgment to $3,500. The plaintiff appealed to the Court of Appeals and asserted as the single claim of error the reduction of the amount of the judgment. The Court of Appeals panel in an unpublished opinion with one judge dissenting upheld the determination of the trial judge. The plaintiff then moved for discretionary review by this court, which we granted. We now reverse the decision of the Court of Appeals and remand the cause to the trial court with direction to restore the original judgment entered.

The parties to this appeal agree that Orr v. Coleman, supra, is applicable to this case and that the trial judge properly instructed the jury. Allied argues that it is entitled to a credit upon its liability as determined by the jury to the extent of the payment made by PB&S, the settling co-tortfeasor. Williamson insists that it should retain the benefit of its bargain with PB&S and recover from Allied, the nonsettling co-tort-feasor, the amount determined by the jury to be the liability of Allied to Williamson.

Both parties point to language in the Orr opinion to support their arguments. Allied asserts that Orr reaffirmed the pro tanto credit rule when it cited Louisville Gas & Electric v. Beaucond, 188 Ky. 725, 224 S.W. 179, 186-187 (1920) with approval. Williamson replies that the reference in Orr to Beaucond was in the context of a historical exposition from which flowed a new way of handling the problem in Kentucky. In Orr we stated:

“And if the nonsettling tortfeasor may then enforce contribution from the one who has settled, the purpose of the settlement is defeated. Should we hold that to be the case there would simply be no more partial settlements. The practical answer is that the jury should be required to assess the total amount of the claimant’s damages and fix the proportionate share of the nonsettling tortfeasor’s liability on the basis of his contribution to the causation. The trial court may then compute the amount of the judgment to be entered against the nonsettling tort-feasor, thus fixing his ultimate liability (and incidentally obviating any question of or necessity for contribution).”

The traditional view has been that if the satisfaction received from a settling co-tort-feasor was understood to be only partial, it should not discharge the claim against the second co-tortfeasor, but the satisfaction received should be credited pro tanto to diminish the amount of damages recoverable against the nonsettling tortfeasor. This principle is based, however, on the assumption that the entire liability rests on each co-tortfeasor because each has contributed to the single result, and that no rational division can be made. KRS 454.040 as construed in Orr rejects this assumption on which the pro tanto credit rule is based. Under Cox v. Cooper, Ky., 510 S.W.2d 530, 536-537 (1974), when a jury under an Orr instruction apportions a verdict it thereby renders it “severally.”

Williamson and PB&S reached an arm’s-length negotiated settlement. PB&S bought its peace and Williamson sold its claim against PB&S for a price satisfactory

to the settling parties. Allied and Williamson took their dispute to the jury. To now allow Allied to benefit from PB&S’s generosity discourages the policy of encouraging and finalizing partial settlements. Regardless of the outcome of Williamson’s “severa-ble” claim against Allied (which a jury said was worth $10,000 in this case), Williamson could not reopen his settlement with PB&S, and Orr plainly requires the elimination of any question of contribution where the apportionment is made.

In Nix v. Jordan, Ky., 532 S.W.2d 762 (1975), we pointed out that KRS 454.040 (the apportionment statute) was applied in Orr in part because of the general public policy favoring settlements. We conclude in this case that that same policy militates in favor of allowing the plaintiff to enjoy a favorable settlement or being bound by a poor settlement. PB&S makes no complaint. Allied pays the amount determined by the jury.

The decision of the Court of Appeals is reversed and the cause is remanded to the Jefferson Circuit Court with directions to restore the original judgment in favor of Williamson against Allied in the amount of $10,000.

All concur.

      . Orr v. Coleman, Ky., 455 S.W.2d 59, 61 (1970).

      . W. Prosser, Law of Torts, section 50 at 304, 305 (4th ed. 1971)

      .For a very thorough and helpful discussion and evaluation of Kentucky law on the subject, see Germain, Remedies: Contribution and Apportionment Among “Joint Tortfeasors”, 65 Ky.L.J. 256 (1976-77), and Park, Comparative Negligence is Here Now, 39 Ky. Bench and Bar 19 (1975).


author: WILHOIT, Judge.

text:
    Seretha CHILDERS, widow of Luegean Childers, and Samuel Childers, an infant, and Donald Childers, an infant, and Victoria Carlisle, widow of Ronald Lee Carlisle, and Christopher James Carlisle, an infant, Appellants, v. INTERNATIONAL HARVESTER CO. and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Opinion July 15, 1977.
    Discretionary Review Denied Nov. 14, 1977.
    Ordered Published Aug. 11, 1978.
    Ann B. Oldfather, Wyatt, Grafton & Sloss, Louisville, Joe G. Leibson, Louisville, for appellants.
    Carl Arthur Henlein, Middleton, Reut-linger & Baird, Louisville, for appellees.
    Before HOWARD, LESTER and WIL-HOIT, JJ.
   WILHOIT, Judge.

On September 23, 1974, Ronald Carlisle, age 27, and Luegean Childers, age 35, died due to inhalation of carbon monoxide gas while relining a cupola (furnace) in the course of their employment with International Harvester Company. On October 4, 1974, Victoria Carlisle, Ronald’s widow, entered into an “Agreement Between Employer and the Dependents of a Deceased Employee as to Compensation” in which International Harvester agreed to pay compensation at the rate of $84.00 per week to Mrs. Carlisle and her infant child. On October 8, 1974, Seretha Childers, Luegean’s widow, entered such an agreement also providing for payment of $84.00 per week to her and her infant children. On October 14, 1974, the Board entered an order approving the agreement as to Seretha Childers. On November 12, 1974, Victoria Carlisle and Seretha Childers each filed an Application for Adjustment of Claim with the Board alleging various safety violations under KRS 342.165. On November 18, 1974, the full Board entered an order approving the agreement between International Harvester and Victoria Carlisle.

On November 19,1974, the Kentucky Department of Labor, Division of Occupational Safety and Health Compliance, issued a citation to International Harvester for 3 safety violations: excessive employee exposure to carbon monoxide, failure to provide respirators, and improper planning and rescue equipment in case of emergency. Included in the citation was notification of a proposed penalty of $700.00. On July 7, 1975, Victoria Carlisle filed a motion and affidavit in which she requested that the Board increase the award on the grounds that “there was mistake and/or fraud and/or newly discovered evidence which would entitle her and her child, dependents of the deceased, to the 15% penalty provided for in the Act.” She stated that at the time she entered the agreement she did not know that International Harvester was guilty of violating KRS 342.165. On July 9, 1975, Seretha Childers filed a motion and affidavit containing the same allegations and also requesting an increase in the award. On July 28, 1975, the full Board entered an order in each case stating that “[w]e find that plaintiff has made sufficient showing to justify reopening the claim upon the basis of newly discovered evidence.”

On August 29, 1975, International Harvester filed a motion to dismiss the affidavits and motions to reopen of both Victoria Carlisle and Seretha Childers. On September 5, 1975, a hearing before a hearing officer of the Board was held at which one counsel appeared representing both Victoria Carlisle and Seretha Childers.

On January 5, 1976, the Board sustained International Harvester’s motion to dismiss as to both Victoria Carlisle and Seretha Childers. On January 19, 1976, a petition for reconsideration was filed in each case. On February 9, 1976, the Board overruled Victoria Carlisle’s petition for reconsideration; however, on February 23, 1976, the Board entered an order setting aside its order of January 5, 1976, and sustaining Victoria Carlisle’s petition for reconsideration.

Finally, on March 1, 1976, an order was entered in the Carlisle case setting aside the order of February 23, 1976, “for the reason that this case has been appealed to the Jefferson Circuit Court,” and reinstating the order of February 9, 1976. An order of March 1, 1976, was entered in the Childers case overruling the petition for reconsideration.

On February 23,1976, an appeal was filed in Jefferson Circuit Court by both Mrs. Carlisle and Mrs. Childers, and the children of each, requesting that the court order the Board to reopen the awards. The petition was dismissed on October 27, 1976, and this appeal was taken from the order of dismissal.

Appellants argue that under KRS 342.-125, which provides for review by the Board of any award upon “a showing of change of conditions, mistake or fraud or newly discovered evidence”, the court erred in sustaining the dismissal of their motions for review. In their affidavits supporting their motions both Mrs. Childers and Mrs. Car-lisle alleged that they were not aware of any violation of safety regulations by International Harvester at the time the settlement agreements were made. Copies of the reports outlining the various violations found by the state Department of Labor Occupational Safety and Health Compliance Officer were attached. According to appellants the affidavits and attachments made an initial showing of either mistake of fact at the time the settlements were signed or of newly discovered evidence thereafter. No counter-affidavits were filed on behalf of International Harvester.

Appellee, International Harvester, insists dismissal of the motions for review was appropriate since no statutory penalty is recoverable in a workmen’s compensation proceeding for violation of the Kentucky Occupational Safety and Health Act, KRS Ch. 338 [hereinafter KOSHA], KRS 338.-021(2) provides:

Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any manner the common-law or statutory rights, duties, or liabilities of employers or employes, under any law with respect to injuries, diseases, or death of employes arising out of, or in the course of employment.

According to International Harvester, in cases of the violation of KOSHA, this statute precludes the assessment of the 15% penalty provided for in the workmen’s compensation statute (KRS 342.165) for intentional failure of an employer to comply with safety statutes or regulations. We do not believe such an interpretation of KRS 338.021(2) was intended by the General Assembly. To accept that interpretation, as pointed out by appellants, would limit the application of KRS 342.165 to situations involving the employment of children or minors (KRS Chs. 339, 351, and 352). The purpose of KRS 338.021(2) rather seems to be the preclusion of independent civil actions based on violations of KOSHA. See Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974).

Appellee next argues that a motion for review of an award may not be used to recover the 15% statutory penalty. It cites Preston v. Elm Hill Meats, Inc., Ky., 483 S.W.2d 136 (1972), as authority for this position. In that case the claimant had filed a motion with the Board to review its award to him which had approved the settlement made between him and his employer. Among other grounds put forth by him to sustain his motion, he contended that his employer had violated safety provisions of the Child Labor Act and that he was, therefore, entitled to receive a 15% increase in compensation. The Court held that, even assuming such a violation had taken place, that circumstance would not permit the reopening of a compensation claim which had been settled or prosecuted to an award. Preston, supra, stands for the proposition that the violation of a safety statute which might have resulted in the assessment of a penalty is not in and of itself a sufficient ground for review of an award. In this case, however, the claimant has asked for review on the basis of mistake of fact or newly discovered evidence. Preston is silent on this question.

These same arguments made here were made by International Harvester before the Board and apparently were the basis of the Board’s initial decision not to review either of the two claims. With this in mind, the judgment herein is reversed with directions that the court remand this case to the Board to determine whether a reasonable prima facie preliminary showing of the existence of a substantial possibility of the presence of one or more of the prescribed statutory conditions has been made, in accord with the rule announced in Stambaugh v. Cedar Creek Mining Co., Ky., 488 S.W.2d 681 (1972).

All concur.


author: VANCE, Judge.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Jesse JUSTICE, Commonwealth Drilling and Workmen’s Compensation Board, Appellees. COMMONWEALTH DRILLING COMPANY, Appellant, v. James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Jesse Justice, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Dec. 9, 1977.
    Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, John S. Riehl, Jr., Dept, of Labor, Louisville, for James R. Yocom, etc.
    William J. Baird, III, Pikeville, for Commonwealth Drilling Co.
    Kelsey E. Friend, Pikeville, for Jesse Justice.
   OPINION AND ORDER GRANTING APPELLANT’S MOTIONS TO STRIKE THE COUNTERSTATEMENTS OF APPELLEE, JESSE JUSTICE, AND GRANTING SAID APPELLEE TIME TO FILE COUNTERSTATEMENTS IN CONFORMITY WITH THE RULES

Before the Court Sitting en banc.

VANCE, Judge.

The appellee, Jesse Justice, filed counterstatements in the two above-styled appeals onto which there was attached as an appendix the opinion, findings of fact, conclusions of law, and judgment of the trial court. The attachment of a written opinion of the trial court is often helpful to this Court and is certainly not criticized in any way. However, in reaching its conclusion in the trial court, the judge relied upon an unpublished decision of the Supreme Court in the case of Wagoner, etc. v. Lonnie Jarrell, et al., decided July 2, 1976, by a memorandum opinion. In addition, the ap-pellee attached to its counterstatements as an appendix, a copy of the memorandum opinion per curiam issued by the Supreme Court in Wagoner v. Jarrell, supra, and also a copy of the findings of fact, conclusions of law and judgment of the Floyd Circuit Court in Action No. 10850 styled Lonnie Jarrell v. Isle Coals, Inc., etc. RAP 1.310(d) provides that unpublished opinions shall not be cited or otherwise used in any other case in any court. In spite of this rule, we have seen numerous instances in which memorandum and other unpublished opinions have been cited. Upon proper motion it has been our policy to strike the offending counterstatements and grant additional time to file a counterstatement in conformity with the rules.

The Special Fund has moved that the counterstatements be stricken and that ap-pellee be penalized for the violation of the rule and denied leave to file a counterstatement in conformity with the rule.

Upon consideration, we have determined to follow our previous policy and grant leave to appellee, Jesse Justice, to refile a counterstatement in conformity with the rule.

The purpose of this opinion is to serve notice upon the Bar generally that in future cases in which unpublished opinions are cited we will entertain motions to strike the offending counterstatement, and if the circumstances warrant, deny leave to refile.

The appellant’s motions to strike the counterstatements of appellee, Jesse Justice, are granted. The appellee, Jesse Justice, is granted to and including December 22, 1977 to refile counterstatements in which the citations of unpublished opinions have been deleted.

      . It should be noted that pursuant to CR 76.-12(4)(d)(vi), effective January 1, 1978, the appellant’s brief must include an appendix containing these documents.


author:
WINTERSHEIMER, Judge.
      PARK, Judge,

text:
    Jerry CARLTON, Wendell Bruce, John N. Cunningham, Mike Richey and Robert Stivers, Members of the Lawrenceburg Board of Zoning Adjustment, and the Lawrenceburg Board of Zoning Adjustment, Bernice Wayne Burke, Hollie Warford, Sr., Kenneth Hoskins, Thomas Searcy, James Link, Raymond Carlton, Ann Whitt, Gene Williams, W. T. McCoun, Members of the Lawrenceburg-Anderson County, Kentucky Joint Planning Commission, and the Lawrenceburg-Anderson County, Kentucky Joint Planning Commission, and Board of Education of Anderson County, Kentucky, Appellants, v. William C. TAYLOR, Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.
    Rehearing Denied April 14, 1978.
    Discretionary Review Denied Sept. 12, 1978.

      Dale Wright, Ollie J. Bowen, Lawrence-burg, for appellants.
    Robin Griffin, Miller, Griffin & Marks, Lexington, for appellee.
    Before PARK, WHITE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment of the trial court, without the intervention of a jury, and involves the application for a building permit to construct a building which would be used for a liquor business within the city limits of Lawrenceburg, Kentucky, in an area zoned Business District-Local. The application was denied by the City Building Inspector, and the appel-lee perfected an appeal to the Zoning Board of Adjustment. On April 19, 1976, an extensive public hearing was conducted, at which time the Zoning Board of Adjustment unanimously upheld the denial by the Building Inspector. On May 18, 1976, ap-pellee filed a complaint in the circuit court and that court found the zoning sections relied on for the denial to be unconstitutional in a judgment entered on December 13, 1976. Following various unsuccessful motions after judgment, the appellants filed a notice of appeal on February 12, 1977, in this Court.

The question presented is whether the trial judge committed reversible error in nullifying the zoning provisions of the city ordinance and authorizing a permit to be issued.

This Court reverses the judgment of the trial court.

The trial court was correct in finding that Section 18-36(a)(4) was unconstitutional for failure to delineate standards by which the Board of Adjustment could approve exceptions to uses permitted in local business districts. The contention that the unconstitutional provision is void and is of no effect does not vitiate the remaining portions of the ordinance which contained a severability clause, as required by Rash v. Louisville and Jefferson County Metropolitan Sewer District, 309 Ky. 442, 217 S.W.2d 232 (1949). The severed portion is no longer considered in construing the legal requirements, but the remaining portions of the ordinance are still effective. Accordingly, the only uses permitted in the zone regulated by Article 18-36 would be those listed in 18-36(a)(l), (2) and (3). A liquor store is not listed as a permitted use, and thus would not be permitted in this zone. Section 18-36(a)(2) enumerates the uses permitted in the zone. What is not included must be considered as excluded. These are the standards which determine the issuance of permits. Only those businesses which fall within one of these categories are permitted uses; all others are prohibited. Therefore, to allow the issuance of a permit for a liquor store would be to completely disregard the remaining valid provisions of the applicable ordinance.'

In the matter of Schneider v. Wink, Ky., 350 S.W.2d 504 (1961) the stricken clause contained the standards for issuing a license. Once this clause was eliminated, only the general power to issue a license remained. Therefore, once the general procedure for obtaining a license was followed, it had to be granted as a matter of law. However, in this situation, a specific list of permitted uses still remains as a valid part of the ordinance. Thus, it is reasonable for the Board of Adjustment to refuse to deviate from the list of permitted uses in this ease.

It appears that the trial court agrees with the conclusion that the term “special exception” is synonymous with the term “conditional use”. Historically, the term “conditional use” has replaced the term “special exception” in most modern zoning ordinances. KRS 100.111(5) provides in part that a conditional use means a use which is essential to or would promote the public health, safety or welfare. It is impossible to conclude that the application in the present case meets such a statutory test. It would appear that the philosophy of the conditional use concept is one which is attempting to permit such uses as schools, fire and police stations, and other essential service type uses in zones which are predominantly built with similar use types, but which need such conditional uses nearby to provide essential and necessary services. An application for a retail liquor store does not so qualify.

Careful examination of this record indicates that the zoning ordinance in question does not properly set out the standards that are to be used in construing the ordinance. The “Purposes of Article” cannot be considered as the standard required in construing the ordinance. The trial court correctly determined that there was no distinction between the words “purpose” and “preamble.” It is well settled in Kentucky that a preamble to an ordinance is merely an introductory clause, and the constitutionality of a legislative act cannot be tested by its preamble. City of Elizabethtown v. Cralle, Ky., 317 S.W.2d 184 (1958). Such a regulatory ordinance must be careful not to vest absolute and arbitrary power in any administrative board or agency, so as to be in violation of Section 2 of the Kentucky Constitution. It can be argued that the specific ordinance in question does not prohibit a liquor store in the area. Certainly, it cannot be said that a liquor store per se is an unlawful business, even though it may be considered as highly undesirable by some, and may, in fact, be undesirable in certain areas. It is the obligation of the drafters of the zoning ordinance to be specific, if they desire to prohibit specific offensive businesses. Such prohibition should encompass the necessary rationale and proper standards.

In this specific situation, in view of the requirements of KRS 100.111(5), it appears to this Court that the appellee could have sought a conditional use permit. However, the record indicates that the ap-pellee could not sustain the burden of proof that the Board of Adjustment was arbitrary. Gentry, et al. v. Ressnier, et al., Ky., 437 S.W.2d 756 (1969). Therefore, there is no basis for any presumption that there was sufficient evidence before the Board of Adjustment which would have required it to grant a conditional use permit.

The judgment of the trial court is reversed.

WHITE, J., concurs.

PARK, J., concurs by separate opinion.

PARK, Judge,

concurring.

I concur with the result reached by the majority opinion in this case.

First, I agree that Taylor is not entitled to the building permit, even though a portion of the ordinance is unconstitutional. Section 18-36 of the Lawrenceburg City Ordinance relating to “local” business districts provides an itemized list of businesses which are permitted within the district. Subsection (a)(4) then provides that the Board of Adjustment may grant “special exceptions” for other retail businesses “if it determines that the proposed use would not be detrimental to the development of the district as a retail shopping area”. The majority opinion of this Court, and the opinion of the trial court, are clearly correct in holding that the provisions of subsection (a)(4) violate Section 2 of the Kentucky Constitution because of the absence of any standard by which the “special exceptions” could be granted. If subsection (a)(4) is stricken from the ordinance, a retail liquor store cannot be a permitted use within a “local” business district. A retail liquor store would be a permitted use only in a “central business district” under Section 18-37 of the ordinance. Consequently, there is no total prohibition of an otherwise lawful business such as was presented in U.S. Mining & Exploration Natural Resources Co. v. City of Beattyville, Ky., 548 S.W.2d 833 (1977). I agree with the majority opinion that the invalidity of subsection (a)(4) does not entitle Taylor to the building permit.

Second, I agree with so much of the majority opinion as holds that a “special exception”, authorized by subsection (a)(4) of Section 18-36, is in fact a “conditional use” authorized under Chapter 100 of the Kentucky Revised Statutes. Under KRS 100.237, a Board of Adjustment has the power to grant conditional use permits only for those uses for which are “specifically” named in the zoning regulations “which may be suitable only in specific locations in the zone”. Section 18-36 of the Lawrence-burg City Ordinances does not specifically name the uses for which a “special exception” or “conditional use” permit can be granted within a local business district. Under subsection (a)(4), a condition use permit could be granted for “all offices and other retail businesses or services” not specifically authorized in a local business district. As defined by KRS 100.111(5), a “conditional use” means “a use which is essential to or would promote the public health, safety or welfare in one or more zones, but which would impair the integrity and character of the zone in which it is located, or in adjoining zones, unless restrictions on location, size, extent and character of performance are imposed in addition to those imposed in the zoning regulation”. I conclude that the provisions of subsection (a)(4) of Section 18-36, relating to the granting of “special exceptions”, do not comply with the standards for granting conditional use permits imposed by KRS 100.237 and KRS 100.111(5).

Because subsection (a)(4) of Section 18-36 fails to meet the statutory requirements for granting conditional use permits, I agree with the majority opinion that the Board of Adjustment had no authority to grant Taylor’s request for the building permit. A retail liquor store was not a permitted use within a local business district, and the ordinance provided the Board with no valid authority to grant the building permit as a “conditional use”. For these reasons, I concur in the majority opinion.