author: BISSETT, Justice.

text:
    WILLIAM B. ROBERTS, INC., et al., Appellants, v. McDRILLING COMPANY, INC., Appellee.
    No. 1356.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 22, 1979.
    Rehearing Denied April 12, 1979.

      William B. (Ben) Adair, Houston, for appellants.
    William H. Scott, Jr., Browne & Moore, Houston, for appellee.
   OPINION

BISSETT, Justice.

This is a suit to recover damages for breach of written contract, or, in the alternative, for fraud relating to the drilling of two wells, the Emma Oates well and the H. L. & P. well, in search of oil or gas. In the trial court, McDrilling Company, Inc., was plaintiff. William B. Roberts, Inc., and William B. Roberts, individually, were defendants. Following a jury trial, judgment was rendered in favor of plaintiff against defendants, jointly and severally, in the total sum of $101,493.09, together with interest thereon at the rate of 9% per annum from date of judgment (January 17, 1978) until paid. Defendants have appealed.

According to the makeup and context of plaintiff’s pleadings, it sued to recover actual damages in the amount of $52,306.57 due, first, because of the fraud allegedly perpetrated on it by defendants, or, in the alternative, the identical sum of $52,306.57 alleged to be due it by defendants under written contracts for the drilling of the wells. Plaintiff alleged that defendants, from the very beginning of their dealings with plaintiff, were motivated and actuated by an intent to defraud plaintiff in the drilling of the Emma Oates and H. L. & P. wells, and in order to carry out their scheme not to pay for all costs pertaining to the drilling of those wells, made material misrepresentations to plaintiff to induce plaintiff to drill the Emma Oates and H. L. & P. wells pursuant to written contract, and concealed from plaintiff their secret intention not to pay all of plaintiff’s charges for the work to be performed under the contracts. Plaintiff further sought a recovery of punitive damages, and also asked for reasonable attorneys’ fees because of breach of contract.

Defendants, in addition to special and general denials, pled several affirmative defenses to the action brought by plaintiff. Included in such affirmative defenses, but not by way of limitation, are claims for offsets because of negligence of plaintiff’s drilling crews and overcharges by plaintiff. Twenty-seven special issues were submitted. The jury found:

(No. 1.) When Roberts signed the contract on the Emma Oates well, he then intended not to pay for a substantial part of plaintiff’s charges for work to be performed;
(No. 2.) When plaintiff performed work on the Emma Oates well, plaintiff relied on Roberts’ promise to pay;
(No. 3.) When Roberts signed the contract on the H. L. & P. well, he then intended not to pay for a substantial part of plaintiff’s charges for work to be performed;
(No. 4.) When plaintiff performed work on the H. L. & P. well, he relied on Roberts’ promise to pay; .
(No. 5.) Roberts concealed from plaintiff his intent to charge the plhintiff the cost of outside services incurred in freeing the stuck pipe, by deducting such costs from amounts due plaintiff;
(No. 6.) Such fact (had it not been concealed), would likely have affected plaintiff’s judgment and performance on the Emma Oates well;
(No. 7.) Such fact (had it not been concealed), would likely have affected plaintiff’s judgment and performance on the H. L. & P. well;
(No. 8.) Punitive damages in the sum of $22,500.00 should be awarded against defendants;
(No. 9.) The reasonable value of the services of plaintiff’s attorneys in the case is $20,000.00;
(No. 10.) The insertion of the term “30 days” in the form contract so as to result in the provision for interest at the rate of IV2 percent per 30 days, was the result of a good faith error on the part of plaintiff; and,
(No. 11.) The parties intended at the time of the execution of the contracts that interest should be for the rate of 1.5% per month.

The remaining special issues (Numbers 12 through 27) were defendants’ issues. They were answered unfavorably to defendants.

The court rendered judgment for plaintiff for $52,306.57, together with interest thereon at 6% per annum from and after December 1, 1975, to date of judgment, with said principal and interest amounting to $58,993.09, and for $20,000.00 as attorneys’ fees, and for $22,500.00 for punitive damages, being a total of $101,493.09, together with interest on the total amount of the judgment at the rate of 9% per annum from and after the date of rendition of the judgment.

Defendants urge six points of error. Three are “no evidence” points.

In disposing of defendants’ “no evidence” points, we follow the well-established rule which requires the appellate courts of this State to view the evidence in a light most favorable to and in support of the jury’s findings and to consider only the evidence and permissible inferences which support such findings, and to reject the evidence and inferences contrary thereto. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1974).

Defendants in their first point of error, contend that there was no evidence that they committed an actionable tort in connection with a breach of contract, and therefore it was error to award punitive damages to plaintiff. We agree. Plaintiff’s action is properly brought to recover damages for breach of contract, and such suit is not a basis for punitive damages since there is no evidence that the breach was tortious in nature.

While defendants do not bring forward points which directly challenge the submission of special issues 1 through 8, or the judgment insofar as it is based on the jury answers to those issues, on the ground of no evidence, the thrust of the point, when the statement and argument thereunder is considered, is such a challenge. Recent cases advocate a very liberal rule in determining the legal sufficiency of a point under our briefing rules. See Bass v. Metzger, 569 S.W.2d 917, 922 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). The precise nature of point 1 is a complaint against the judgment, which awarded punitive damages, on the ground that there is no evidence to support the jury’s findings, which, in effect, supplied the basis for a holding that defendants committed an actionable tort (fraud) in connection with a breach of contract. In disposing of the point, we must necessarily consider whether there was evidence to support the jury’s answers to points 1 through 8 in order to determine the question of reversible error. See O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.Sup.1976), which states that a Court of Civil Appeals should look to the statement and argument under a point “to determine the question of reversible error.”

To constitute actionable fraud, there must be a misrepresentation or concealment of a material fact intended to be believed and acted upon and actually believed or acted upon with consequential injury to the person acting thereon. Further, the complainant must not have failed to exercise reasonable care to protect himself. There cannot be actionable fraud in an arms length transaction when each of the parties are equally cognizant of the facts. Moore & Moore Drilling Co. v. White, 345 S.W.2d 550 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.); Roan v. Reynolds, 364 S.W.2d 763 (Tex.Civ.App.—Amarillo 1963, writ dism’d). Fraud is never presumed, and it is plaintiff’s burden to allege and prove actionable fraud. Turner v. Lambeth, 2 Tex. 365 (1847); Hawkins v. Campbell, 226 S.W.2d 891 (Tex.Civ.App.—San Antonio 1950, writ ref’d n. r. e.); Ramos v. Levinston, 536 S.W.2d 273 (Tex.Civ.App.—Corpus Christi 1976, no writ); Hazle v. McDonald, 449 S.W.2d 343 (Tex.Civ.App.—Dallas 1969, no writ).

A person’s intent is a question of fact, which may be established by circumstantial evidence in connection with a breach of contract, but the breach alone does not establish such fact. Turner v. Biseoe, 141 Tex. 197, 171 S.W.2d 118 (1943); Seegers v. Spradley, 522 S.W.2d 951 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.). Mere proof of nonperformance of the contract will not support an inference of fraudulent intent. Medina v. Sherrod, 391 S.W.2d 66 (Tex.Civ.App.—San Antonio 1965, no writ); Collier v. Bankston-Hall Motors, 267 S.W.2d 898 (Tex.Civ.App.—Dallas 1954, no writ).

As a general rule, a promise to perform some act in the future, although made for the purpose of inducing another to enter into a contract, will not amount to legal fraud, though at a later date, the promise, without any excuse, is broken. This is a plain and well established proposition of law; otherwise, every breach of contract would amount to fraud. In order for a promise to constitute fraud, it is necessary that it should have been made at a time when the promisor knew that it would not be performed. When a representation, in the nature of a promise to be performed in the future, is alleged as a basis for fraud, it must be shown that the person making the representation did not intend to perform at the proper time. Cassel v. West, 98 S.W.2d 437 (Tex.Civ.App.—Amarillo 1936, writ ref’d); Stone v. Enstam, 541 S.W.2d 473, 481 (Tex.Civ.App.—Dallas 1976, no writ). Furthermore, a subsequent representation cannot be considered in determining whether a contract was obtained by fraudulent representations, since a transaction which is originally valid cannot be rendered invalid by a representation made after the transaction was originally entered into by the parties. Long v. Martin, 112 Tex. 365, 247 S.W. 827 (1923); Steine v. Hillcrest State Bank of University Park, 423 S.W.2d 443 (Tex.Civ.App.—Dallas 1967, no writ); Burchill v. Hermsmeyer, 212 S.W. 767 (Tex.Civ.App.—Fort Worth 1919, no writ).

In fraud cases, generally speaking, punitive damages may not be awarded unless the act complained of is of a malicious or wanton nature, and such an award cannot be supported if all that is shown by the record is that the act is merely wrongful. Ware v. Paxton, 359 S.W.2d 897 (Tex.Sup.1969). It is also the general rule that punitive damages in fraud cases may be awarded when the plaintiff has suffered actual damages as the result of fraud intentionally committed by the defendant for the purpose of injury to the plaintiff, which our Supreme Court classified as “wilful and deliberate fraud.” Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803, 805 (Tex.Sup.1966). See also Woo v. Great Southwestern Acceptance Corporation, 565 S.W.2d 290 (Tex.Civ.App.—Waco 1978, writ ref’d n. r. e.).

Punitive damages cannot be recovered in an action for breach of contract which is not accompanied by a tort, even though the breach is capricious and malicious. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629 (1943); Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); McDonough v. Zamora, 338 S.W.2d 507 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.).

All of the contracts, hereinafter described, were between William B. Roberts, Inc., (Roberts, Inc.), as “owner,” and plaintiff, as “contractor.” Mr. William B. Roberts (Roberts), president of Roberts, Inc., executed them for the owner, and Mr. Thomas K. Tomlinson (Tomlinson), president of plaintiff corporation executed them for the contractor.

Tomlinson was contacted by Roberts in August, 1975, in connection with defendants’ desire to obtain a drilling contractor for the drilling of three wells, the Ruby Means well, the Emma Oates well and the H. L. & P. well. Roberts wanted the wells drilled on a “footage basis” and Tomlinson wanted to drill them on a “day-work basis.” The difference between a “day-work” contract and a “footage” contract, basically stated, is that the contractor under a “footage” contract, agrees to drill to a stated depth for a fixed sum of money, while under a “day-work” contract, the contractor is paid a certain amount of money per day until the well is completed. Under a “footage” contract, the contractor assumes the burden of contending with unforeseen delays, while under a “day-work” contract the owner assumes the burden of such delays. An understanding was reached by and between Tomlinson and Roberts whereby it was agreed that each well would be drilled on a “day-work basis” and that a written contract would thereafter be executed covering the drilling of each well.

A contract was duly executed on or about September 9, 1975, for the drilling of the Ruby Means well. Roberts, Inc., paid plaintiff $20,000.00 as an advance payment on the contract price. Drilling operations were finished on September 29, 1975. Shortly thereafter, the well was completed as a producer. Roberts was not completely satisfied with the work performed by plaintiff in the drilling of the well and registered certain complaints with Tomlinson, who after hearing the complaints told him: “We suggest that you get some other drilling contractor to drill these other two wells.” Tomlinson further testified that Roberts indicated to him that “if he had sufficient time he might very well do that,” but under the circumstances, he wanted plaintiff to drill the other two wells. Plaintiff, on October 2, 1975, invoiced Roberts, Inc., for $36,565.64, the balance due under the contract.

The contract for the drilling of the next well, the Emma Oates well, was signed by plaintiff on October 10, 1975, and by Roberts, Inc., on October 14, 1975. As was the case in the Ruby Means well contract, Roberts, Inc., paid plaintiff $20,000.00 upon the execution of the contract. During the drilling of the well, the drilling pipe became stuck, which caused a two-day delay in drilling. Roberts, Inc., at its own expense and pursuant to the terms of the contract, obtained the services of oil field service companies to free the pipe. After it was freed, plaintiff resumed drilling operations and drilled to contract depth. Drilling operations were completed on October 30, 1975. The well was dry. On November 6, 1975, plaintiff invoiced Roberts, Inc., for $26,544.92, the balance due for drilling the Emma Oates well.

The contract for the drilling of the H. L. & P. well was signed by plaintiff on October 31, 1975, and by Roberts, Inc., on November 3, 1975. Again, Roberts, Inc., paid $20,000.00 on the contract. The drilling operations were completed on November 14, 1975. The well was dry. On November 17, 1975, plaintiff invoiced Roberts, Inc., for $25,761.65, the balance due for the drilling of the H. L. & P. well.

Plaintiff’s invoice for the balance ($36,-565.64) due for the drilling of the Ruby Means well was paid on December 18, 1975. However, Roberts, Inc., refused to pay the invoice balance ($26,544.92) due for the drilling of the Emma Oates well because it claimed that it was entitled to certain credits because of the negligence of plaintiff’s drilling crews which caused the drill pipe to become stuck and for certain overcharges. Roberts, Inc., also refused to pay the invoice balance ($25,761.55) for the drilling of the H. L. & P. well because of asserted overcharges.

The intent with which a person does an act is known to him and he is competent to testify as to such intent. Here, Roberts testified that “he did not have any secret intentions not to pay at any time.” That statement is not disputed or contradicted by any direct evidence, and there is no circumstantial evidence which could possibly be considered as having any bearing on the question of Roberts’ intent. Plaintiff, in its contention that there is circumstantial evidence which authorized the jury to infer that Roberts did intend to defraud plaintiff by making fraudulent representations and concealing material facts from it, in order to support the jury’s answers to special issues 1 through 7, relies on: 1) Roberts’ testimony that he “felt” that a “day-work” contract is “pretty close” to “rights to steal”; 2) following the completion of the Ruby Means well, Roberts orally promised to pay for all costs incurred by plaintiff in the drilling of the Emma Oates and H. L. & P. wells pursuant to “day-work” contracts; 3) Roberts’ admission that be knew that the failure to pay the Ruby Means invoice in full might be grounds for the filing of a lien against the well which might tie up1 revenues from the producing well; 4) Roberts, after being dissatisfied with drilling operations on the Ruby Means well, and after being invited to obtain another drilling contractor, decided to contract with plaintiff for the drilling of the other two wells; 5) Roberts did not tell plaintiff at the time the stuck drill pipe was freed that he intended to hold plaintiff accountable for the expenses of freeing the pipe because of the negligence of plaintiff’s drilling crews; 6) Roberts first contended that he was entitled to $18,000.00 as a credit for plaintiff’s negligence and overcharges, and at the trial asserted that he was entitled to more than $25,000.00 as a credit; and 7) except for the $20,000.00 advance, Roberts, Inc., never tendered or offered to pay plaintiff any amount of money for the drilling of the Emma Oates and H. L. & P. wells which it did not consider to be in dispute.

Concerning the oral promises to pay for the drilling costs of the Emma Oates and H. L. & P. wells, we first observe that such promises were made before the contracts for the drilling of the wells were executed. We next note that when the work was performed under the contracts, plaintiff was under a legal duty to perform such work and defendants were under the same duty to pay for all work performed by plaintiff under such contracts. -Plaintiff’s duty to perform such work arose out of the contract and not on his reliance on defendants’ oral agreement to pay such charges. The contracts were valid when executed and they were not rendered invalid by any representations made after the date of their execution. See Long v. Martin, supra; Burchill v. Hermsmeyer, supra.

We do not consider that the foregoing constituted any circumstantial evidence from which the jury could reasonably infer that at the time Roberts signed the contracts for the drilling of the Emma Oates and H, L. & P. wells that “he then intended not to pay for a substantial part of plaintiff’s charges for work performed on the well,” as found by the jury in response to special issues 1 and 3; or that at the time plaintiff performed work on the wells, that it “relied on Mr. Roberts’ agreement to pay when due plaintiff’s charges for such work,” as found by the jury in answer to special issues 2 and 4; or that Roberts concealed from plaintiff his intent to charge plaintiff with the costs incurred in freeing the stuck pipe, as found by the jury in response to special issue 5; or that had such intent not been concealed, it would likely have affected the judgment and performance of plaintiff under the respective contracts. Such inferences could only be based upon pure speculation, surmise and conjecture.

The contention made by plaintiff that Roberts, at the time he orally promised to pay for the costs incurred by plaintiff in the drilling of the Emma Oates and H. L. & P. wells, had no intention to pay for all such costs, amounts to no more than a statement of plaintiff’s opinions or conclusions concerning Roberts’ state of mind. It is not evidence which raises an issue of fact as to whether there was any fraud. Williamson v. Lewis, 346 S.W.2d 957 (Tex.Civ.App.—Fort Worth 1961, writ ref’d); Medina v. Sherrod, supra.

There is no evidence which will support any inference of the commission of an independent tort in connection with a breach of contract.

There are no findings by the jury that Roberts’ acts, representations or conceal-ments were wanton, wilful or malicious, or that they were intentionally committed for the purpose of injuring plaintiff. Those facts are not conclusively established by the evidence. Therefore, plaintiff’s motion to disregard the jury’s answers to special issues 1 through 8 should have been sustained. In that state of the record, it was improper to award plaintiff a recovery of $52,306.57, as actual damages in the tort action, and $22,500.00 as punitive damages. Point 1 is sustained.

Defendants contend in point 6 that the court erred in awarding plaintiff $52,306.57 as actual damages because no issue on damages was submitted to the jury. The point has no merit.

Under Rule 279, T.R.C.P., the trial court is required to submit the controlling issues made by the pleadings and evidence. The trial court is not required to submit any issue on matters which are not in dispute. Marburger v. Jackson, 513 S.W.2d 652 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Dozier v. Jarman, 254 S.W.2d 569 (Tex.Civ.App.—Amarillo 1952, no writ).

In this case, the total amount of invoices submitted by plaintiff to Roberts, Inc., was in the said amount of $52,306.57. Roberts, in his challenge to the total amount of the invoices introduced evidence in support of defendants’ claims for offsets because of overcharges and negligence. Issues pertaining to all of such claims were submitted to the jury, and the jury failed to find that Roberts, Inc., was entitled to any offsets or reduction in plaintiff’s invoices respecting the Emma Oates and H. L. & P. wells for overcharges. The jury further failed to find that plaintiff’s drilling crews were negligent in causing the drilling pipe to be stuck during the drilling operations of the Emma Oates well. Since Roberts admitted that the amount of money due and owing plaintiff was the sum of $52,306.57, less such credits as he might establish because of overcharges and negligence of plaintiff’s drilling crews, and since the jury failed to find that Roberts, Inc., was entitled to any amount of money for such credits, the only possible mathematical result was that plaintiff was entitled to recover its total invoices’ balance of $52,306.57. No issue on damages was required to be submitted to the jury. Point 6 is overruled.

Defendants assert in their point 3 that the trial court erred in reforming the contracts which were involved because there was no evidence to show that there was a meeting of the minds to warrant such reformation. The trial court in its judgment expressly denied “plaintiff’s prayer for reformation of the contracts based on the jury’s answers to special issues numbers 10 and 11.” No error is presented for the reason that the trial court did not reform the contracts. Point 3 is overruled.

In point 4, defendants claim that the court erred in overruling defendants’ motion for a directed verdict for the reason that the contracts showed on their faces that each was usurious as a matter of law. Each of the contracts for the drilling of the Emma Oates well and the H. L. & P. well consisted of printed forms with appropriate blanks therein. Each form contained a printed provision that any sum or sums of money not paid within 30 days after due date should bear interest at the rate of “1½% per_.” The aforesaid blank was filled in with the words “30 days.” Plaintiff urged that it was the intent of the parties that the rate should have been “per month” rather than “30 days,” and due to the inadvertence, clerical mistake and bona fide error, the words “30 days” were inserted in the blank rather than the word “month,” and that such trifling discrepancy was within the rule of de minimus non curat lex. Defendants contend that the interest at the rate of 1½% per 30 days, under the express provision of Tex.Rev.Civ. Stat.Ann. art. 1302-2.09 (Supp.1978), is usurious as a matter of law, because the interest contracted for is interest at the rate of 18.25% per annum, since there are 12.1667 30-day periods in a 365-day year.

The jury found that the insertion of the words “30 days” in the printed form contract was “the result of a good faith error on the part of plaintiff” and further found “that the parties intended, at the time of the execution of the contracts that the interest provision would be for interest at the rate of 1.5% per month.” Tex.Rev. Civ.Stat.Ann. art. 5069-1.06 (1971) provides that where the interest contracted for is greater than the amount authorized by law that there shall be no penalty for a violation which results from an “accidental and bona fide error.” The evidence shows that Tomlinson testified that the plaintiff corporation was not engaged in lending money and had never collected interest from anyone; that the blank was actually filled in by his clerical employee, that he (Tomlinson) was attempting to charge 18% simple interest, which is 1½% per month and did not distinguish between a “month” and “30 days,” and that he did not intend to charge interest in excess of 18% per annum. Roberts testified that when he signed the contract he did not look at the interest provision “specifically”; that he intended to accept whatever plaintiff put in there for interest for late payments; that he knew plaintiff did not want interest but did want their money when the same became due. The facts in this case support the jury’s findings. See Guetersloh v. C.I.T. Corporation, 451 S.W.2d 759 (Tex.Civ.App.—Amarillo 1970, writ ref’d n. r. e.). Point 4 is overruled.

Defendants further say that the court erred in awarding attorneys’ fees of $20,000.00 for the reason that such is an excessive award under the evidence. We do not agree.

The parties stipulated that the attorneys for plaintiff expended a total of 334 hours in the trial of this case. Plaintiff produced testimony to the effect that a contingent fee of 40% of recovery would be a reasonable fee in this case, and further presented evidence that a reasonable hourly rate for an attorney’s services in cases of this kind is $75.00 per hour. A witness called by defendants testified that $60.00 per hour was a reasonable hourly charge for attorney’s fees in Wharton County, Texas, where this case was tried. The jury found that the reasonable value of the services of plaintiff’s attorneys in this case is $20,000.00. Applying either the 40% of recovery, the $75.00 per hour or the $60.00 per hour rates to 334 hours amounts to more than $20,-000.00. The evidence amply supports the award of the jury. The amount awarded is not excessive or unreasonable under the record here presented. Point 5 is overruled.

Finally, defendants claim in point 2 that the court erred in rendering judgment against Roberts, individually, for the reason that there was no evidence to justify invoking the alter ego doctrine. We agree.

Plaintiff pled an alter ego liability of the defendant Roberts for the debts of the corporate defendant Roberts, Inc. The evidence showed that the stock of the corporate defendant Roberts, Inc., is wholly owned by Roberts, his wife and his daughter; that all of the earnings of the corporation are reported as earnings of the shareholders; and that Roberts personally made all the decisions for the corporation.

Roberts, in answer to questions concerning whether he considered himself personally responsible for the contracts made by Roberts, Inc., said:

“Q Do you consider yourself personally responsible for the contracts of the corporation which are made?
A I feel like the corporation stands on its own. I do sign as chief executive officer.
Q Do you consider yourself personally responsible for the dealings that the corporation makes through you?
A I feel like that I am, yes.”
* * * * * *
“Q Do you believe when people deal with you and you put your William B. Roberts, Inc. down on the contract and they are dealing with you, do you believe because of your control of this corporation that you are personally liable for the obligations that you have contracted on behalf of this corporation, do you believe that?
A I believe that.
Q Is that your position?
A Yes.”

Plaintiff argues that the foregoing statements constitute a judicial admission that Roberts, Inc. was the alter ego of Roberts. In effect, it further argues that there was no need for it to offer proof with respect thereto since the judicial admission made it unnecessary to go forward with proof. Defendants dispute plaintiff’s contention that such statements amount to a “judicial admission,” and further say that there is no evidence which will support the trial judge’s conclusion that the evidence showed conclusively that Roberts, Inc., was the alter ego of Roberts as a matter of law. No issue relating to alter ego was submitted to the jury.

We first address the issue of whether the aforesaid statements by Roberts constituted a judicial admission that Roberts, Inc., was his alter ego. The requirements for statements to be held “judicial admissions” are set out in United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.—San Antonio 1951, •writ ref’d). Those requirements, in summary, are: 1) the statement must be made during the course of a judicial proceeding; 2) it must be contrary to an essential fact or defense asserted by the person giving the testimony; 3) it must be deliberate, clear and unequivocal; 4) the giving of conclusive effect to the statement must be consistent with public policy upon which the rule is based; and, 5) the statement is not also destructive of the opposing party’s theory of recovery. We hold that the aforesaid statements by Roberts do not constitute a judicial admission that the corporation was his alter ego. He testified that he did not consider that he was personally responsible for the contracts which the corporation made when he said: “I feel like the corporation stands on its own”; later he testified that he did consider that he was personally liable under such contracts. The effect of all such testimony amounts to an equivocation and does not meet the requirement that the statement be clear and unequivocal. Moreover, the- fact that Roberts did state that he considered himself personally liable for the corporation’s contractual obligations, without more, will not constitute a judicial admission that the corporation is his alter ego.

The legal concept of a corporation as an entity separate and distinct from its stockholders, officers and directors is fundamental in the law of corporations. In the absence of some exception, neither the officers nor the directors of a corporation are personally responsible for the debts of the corporation. See 14 Tex.Jur.2d, Corporations, § 1013, pp. 122-136.

In order to establish personal liability for the acts of a corporation under the alter ego doctrine it is necessary to show that the directors of the corporation disregarded the corporate entity, which, in essence, made it nothing more than a mere conduit or vehicle for the transaction of private business of those sought to be charged with personal liability and that the separateness of the corporation apart from such individuals, did, in fact, cease to exist. See Manney & Co. v. Texas Reserve Life Ins. Co., 407 S.W.2d 345 (Tex.Civ.App.—Dallas 1966, no writ).

The courts of this State are reluctant to pierce the corporate veil and impose personal liability upon an individual, such as its chief executive officer and controlling stockholder, and thereby destroy an important fiction under which so much of the business of the country is conducted, and will do so only under compelling circumstances. In order to disregard the corporate entity and to impose individual liability under the alter ego doctrine, it is well established that the proof must show one or more of the following: 1) that the individual (individuals) sought to be charged with personal liability for the acts of the corporation is (are) using the corporate entity to perpetrate a fraud, or to avoid the effect of a statute, or to evade an existing obligation, or to protect crimes, or to achieve or perpetrate a monopoly, or to justify a wrong; 2) that the individual who controls the corporation and manages its business affairs does so in such a manner whereby individual or corporate creditors may be deprived of their legal rights by a shuffling of the legal personalities of the corporation and its controller to the extent that the corporation is, in fact, the alter ego of the controller; 3) that the corporate formalities were not adhered to by the corporation in connection with the matters in question; and 4) that the corporation was inadequately capitalized. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955); Hanson Southwest Corp. v. Dal—Mac Construction Co., 554 S.W.2d 712 (Tex.Civ.App.—Dallas 1977, writ ref’d, n. r. e.); Sutton v. Reagan & Gee, 405 S.W.2d 828 (Tex.Civ.App.—San Antonio 1966, writ ref’d, n. r. e.); Angus v. Air Coils, Inc., 567 S.W.2d 931 (Tex.Civ.App.—Dallas 1978, no writ); Holmes v. Clow, 553 S.W.2d 99 (Tex.Civ.App.—Tyler 1976, no writ). Moreover, the corporate entity may not be disregarded unless it is shown that the separateness of the corporation has ceased and the facts are such that adherence to the fiction would, under the particular circumstances, sanction a fraud or foster an injustice. Gentry v. Credit Corporation of Houston, 528 S.W.2d 571 (Tex.Sup.1975); First Nat. Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100 (1939, opinion adopted); State v. Swift & Co., 187 S.W.2d 127 (Tex.Civ.App.—Austin 1945, writ ref’d); Pacific American Gasoline Co. of Texas v. Miller, 76 S.W.2d 833 (Tex.Civ.App.—Amarillo 1934, writ ref’d).

The fact that a majority or even all of the stock in a corporation is owned by a single individual does not of itself constitute the corporation the alter ego of the individual. Kroger Company v. J. Weingarten, Inc., 380 S.W.2d 145 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.); Evans v. General Insurance Company of America, 390 S.W.2d 818 (Tex.Civ.App.—Dallas 1965, no writ).

The evidence conclusively showed that Roberts, Inc., had been in existence for four years prior to the transactions made the subject of this lawsuit; that it had a good reputation and had always complied with the laws of this State. It is undisputed: 1) there were no commingling of personal funds of Roberts and those of Roberts, Inc.; 2) the contracts in question were contracts between Roberts, Inc., and the plaintiff corporation; and 3) the contracts were understood by the executive officers of the two corporations involved to be contracts by and between the corporations and no one else.

Concerning the purposes for which Roberts, Inc., was formed, there is no evidence that Roberts, or anyone else, was motivated by bad faith when the corporation was organized in 1971, nor is there any evidence that the corporation was formed for the purpose of promoting or perpetrating fraud or injustice on anyone. With respect to its activities since the date Roberts, Inc., came into being, there is no evidence: 1) that Roberts, Inc., was inadequately capitalized; 2) that corporate formalities were not observed or that corporate accounts separate from those of Roberts were not kept; 3) that Roberts, Inc., was financially weak; 4) that Roberts, at any time, was given preferred status as a creditor of Roberts, Inc., over any other creditors in the payment of the corporation’s debts; 5) that any creditor of Roberts, Inc., was dealt with in an unfair, manner; 6) that Roberts, Inc., was insolvent; 7) that Roberts, Inc., had ceased to do business subsequent to the drilling of the aforesaid wells; 8) that Roberts manipulated the business affairs of Roberts, Inc., in such a way as to interpose the separate identity of the corporation to insulate himself from personal liability; or 9) that there was any transfer of any asset of Roberts, Inc., to Roberts. In short, there is no evidence that Roberts used Roberts, Inc., fraudulently, or to promote an injustice; nor is there any evidence that plaintiff was the victim of some basically unfair device by which the corporate form of business organization was used to achieve an illegal or inequitable result. There was no showing that placed plaintiff in a position of disadvantage because of his dealings with Roberts, Inc., which, admittedly was controlled by Roberts, the dominant officer and stockholder in the corporation. No reason is revealed by the record which justifies the piercing of the corporate veil.

As has been noted, there is no jury finding in this case that the corporation was the alter ego of Roberts, and there is no evidence which justifies a conclusion as a matter of law that Roberts was using the corporation to defraud anyone, defendants or other persons. Plaintiff was fully aware of the financial and business structure of Roberts, Inc. Plaintiff chose to contract solely with the corporation. There is no basis for the judgment against Roberts, individually. Point 2 is sustained.

That portion of the judgment which held Roberts liable individually is reversed and judgment is here rendered that plaintiff take nothing against William B. Roberts individually. That portion of the judgment which decreed a recovery of $22,500.00 as punitive damages is reversed and judgment is here rendered that plaintiff take nothing on its action to recover punitive damages. The remaining portions of the judgment, whereby it was decreed that plaintiff recover of the defendant William B. Roberts, Inc., the sum of $52,306.57, the balance due on the contracts sued on, plus interest thereon at the rate of 6% per annum from and after December 1, 1975, until the date the judgment was signed, and the additional sum of $20,000.00 as attorneys fees, together with interest on the total of such sums from the date judgment was signed until paid at the rate of 9% per annum, is affirmed. Therefore, since the amount of punitive damages is deleted from the judgment, it is required that the judgment be modified by this Court; and, it is so modified and, as modified, it is decreed that McDrilling Company, Inc., take nothing by its action against William B. Roberts, individually, but that it recover of and from William B. Roberts, Inc., the total sum of $78,993.09, together with interest thereon from January 17,1978, at the rate of 9% per annum until paid. Rule 434, T.R.C.P.

The costs of this appeal are taxed four-fifth (4/5ths) to defendant William B. Roberts, Inc., and one-fifth (Vsth) to plaintiff McDrilling Company, Inc.

REVERSED AND RENDERED IN PART, MODIFIED IN PART, AND, AS MODIFIED, AFFIRMED.


source: Caselaw Access Project

author: DICKENSON, Justice.

license: Public Domain

text:
    S. L. McCRARY et ux., Appellants, v. David L. TAYLOR, Appellee.
    No. 5270.
    Court of Civil Appeals of Texas, Eastland.
    March 22, 1979.
    Rehearing Denied April 12, 1979.

      J. R. Black, Jr., Scarborough, Black, Tarpley & Scarborough, Abilene, for appellants.
    Ben D. Sudderth, Sudderth, Woodley & Dudley, Comanche, for appellee.
   DICKENSON, Justice.

The principal issue is whether payments made by a tortfeasor pursuant to the terms of his probation in a criminal case reduce the victim’s cause of action against joint tortfeasors who were subsequently sued by the victim.

David L. Taylor, plaintiff, sued S. L. McCrary and wife, defendants, for gasoline which belonged to plaintiff. The gasoline was stolen from plaintiff by his employee, Roy Mitchell, and it was purchased by defendants. Plaintiff was an oil jobber, and defendants were wholesale customers. The undisputed evidence established that Roy Mitchell stole the gasoline, pleaded guilty to the theft and was sentenced to a term of ten years which was probated. One of the terms of his probation was that he make restitution for the stolen gasoline in the sum of $29,343.44. Roy Mitchell paid $1,000 on the date of sentencing and $200 each month for sixteen months, including the month of trial which began on April 26, 1978. The undisputed evidence shows that restitution payments for the stolen gasoline had been made in the amount of $4,200. Roy Mitchell did not intervene in the lawsuit; he was not sued by plaintiff; and defendants did not bring him into the lawsuit as a third party defendant for purposes of seeking contribution. Roy Mitchell was subpoenaed, and he testified. Following a jury trial, judgment was rendered for plaintiff. Defendants appeal. We will modify the judgment and affirm.

Plaintiff alleged that defendants participated in the theft and fraudulently took the gasoline without compensating him. Defendants denied those allegations and pled that they paid plaintiff’s employee for the gasoline; that the employee had apparent authority or implied authority to collect payments for the gasoline; that they are not indebted to plaintiff in any amount; and that any loss suffered by plaintiff was proximately caused by plaintiff’s negligence. Defendants also filed a sworn motion for continuance asking that trial of plaintiff’s claim against them be continued “until such time as Roy Mitchell fails to make the restitution that he has been making up to this time.” The motion for continuance was denied, and the jury’s verdict may be summarized as follows:

ISSUE NO. 1
The defendants knew or reasonably should have known that the gasoline which they purchased from Roy Mitchell was owned by David L. Taylor.
ISSUE NO. 2
The defendants believed that Roy Mitchell would retain the proceeds from such sale and convert the same to his own use and benefit.
ISSUE NO. 3
The value of the gasoline which defendants purchased from Roy Mitchell was 124,978.80.
ISSUE NO. 4
The purchase of such gasoline by defendants was fraudulently made with intent to harm David L. Taylor.
ISSUE NO. 5
David L. Taylor should be awarded exemplary damages against S. L. McCrary and wife in the sum of $1,800.-
ISSUE NO. 6
David L. Taylor operated his business in such a manner that he could not discover that Roy Mitchell was selling Taylor’s gasoline to S. L. McCrary and wife.
ISSUE NO. 7
Such operation was negligence.
ISSUE NO. 8
Such negligence was a proximate cause of the loss sustained by David L. Taylor.

Plaintiff moved for judgment notwithstanding the answers of the jury to Special Issues 6, 7 and 8. Defendants moved for judgment notwithstanding the answers of the jury to Special Issues 1, 2, 3, 4 and 5. Judgment was rendered in favor of plaintiff for the sum of $26,778.80, which is the total of the actual and punitive damages found by the jury without any credit for the restitution which had been paid by Roy Mitchell.

Rowntree v. Rice, 426 S.W.2d 890 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.) disposes of defendants’ reliance on Special Issues 6, 7 and 8. Justice Barrow states:

It is settled that contributory negligence is not a defense to an action based on fraud and that a fraud-feasor cannot excuse his fraudulent acts by asserting that the defrauded person was guilty of contributory negligence. Southern States Life Ins. Co. v. Newlon, 398 S.W.2d 622 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.); Smith v. Bifano, 330 S.W.2d 473 (Tex.Civ.App.—Waco 1959, writ ref’d n. r. e.); Schonrock v. Taylor [212 S.W.2d 260 (Tex.Civ.App.1948 writ ref.)], supra.
In Isenhower v. Bell, 365 S.W.2d 354 (Tex.Sup.1963), the Court, in holding that there was no error in refusing to submit an issue as to whether plaintiff “should have known” of the false representation, said: “Where one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based upon a plea that the party defrauded might have discovered the truth by the exercise of proper care.”

The general common law rule is that joint tortfeasors have no right of contribution among themselves. Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449 (1941). While there are exceptions to this general rule, none of them appear to be applicable. See 18 C.J.S. Contribution § 11.

Article 2212, Tex.Rev.Civ.Stat. Ann. (1971) does not confer any right of contribution upon defendants because the other tortfeasor, Roy Mitchell, was not a party to this lawsuit and is not named in the judgment. Article 2212a, Tex.Rev.Civ. Stat.Ann. (Supp.1979) applies only to actions based on negligence, and the recovery in this lawsuit is based upon fraud.

Even though defendants are not entitled to contribution from their joint tortfeasor, the question remains as to whether plaintiff’s cause of action against them should be deemed to be partially satisfied by the payments which were shown by the undisputed evidence to have been made by the other tortfeasor in connection with his probated sentence.

Chief Justice Hickman stated in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (Tex.Comm.App.1935, opinion adopted) that:

It is a rule of general acceptation that an injured party is entitled to but one satisfaction for the injuries sustained by him. That rule is in no sense modified by the circumstance that more than one wrongdoer contributed to bring about his injuries. There being but one injury, there can, in justice, be but one satisfaction for that injury. (Emphasis added)

Chief Justice Greenhill pointed out in Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964) that:

Perkins relies on a number of Texas cases which state the rule that the non-settling tortfeasor is entitled to credit on the judgment for the amount already paid for the covenant not to sue. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949); Robertson v. Trammell, 98 Tex. 364, 83 S.W. 1098 (1904);
It is undisputed that a plaintiff may sue one of several joint tortfeasors and collect the full damages from him. Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952).

Justice Pope wrote the opinion in McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971) where our Supreme Court announced that:

In holding as we do, we preserve the rule that a claimant in no event will be entitled to recover more than the amount required for full satisfaction of his damages. Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935). . .

Justice Steakley wrote for the Supreme Court in T. L. James & Co., Inc. v. Statham, 558 S.W.2d 865 (Tex.1977):

We adhere to the rule stated in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935), and explicitly reaffirmed in McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971), that a claimant in no event will be entitled to recover more than the amount required for full satisfaction of his damages.

Restatement of the Law, Torts (2nd ed. 1979) § 885(3) states:

A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.

Based upon the foregoing authorities, we hold that the paragraph of the trial court’s judgment of July 11, 1978, which reads as follows:

It is, therefore, ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff, David L. Taylor, have judgment over and against the Defendants, S. L. McCrary and Mrs. S. L. McCrary, jointly and severally, in the sum of $26,778.80, together with interest thereon at the rate of nine percent (9%) per annum from the date of judgment until paid, for which let execution issue.

should be modified to give credit for the restitution payments of $4,200 which are shown by the evidence, and that paragraph of the judgment is hereby modified to read as follows:

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff, David L. Taylor, have judgment over and against the Defendants, S. L. McCrary and Mrs. S. L. McCrary, jointly and severally, for actual damages in the sum of $20,778.80 and for exemplary damages in the sum of $1,800.00, together with interest on both sums of money at the rate of nine percent (9%) per annum from July 11, 1978, until paid, for which let execution issue.

Defendants insist that plaintiff made an election of remedies by accepting the restitution payments from Roy Mitchell under the terms of his probationary sentence and that plaintiff is barred by that election from collecting any of his damages from them. We disagree. Election of remedies is a harsh doctrine, and its scope should not be extended. American Savings and Loan Association of Houston v. Musick, 531 S.W.2d 581 (Tex.1975). The doctrine is used to prevent double recovery for a single wrong. Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945).

We have reviewed all of the points of error, and they are overruled. There is evidence to support the jury’s answers to Special Issues 1, 2, 3, 4 and 5 when tested under the “no evidence” test of Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), and the evidence is sufficient to support the answers to those issues when tested under the “sufficiency” test of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

As modified, the judgment of the trial court is affirmed.


author: ROBINSON, Chief Justice.

text:
    Thomas E. LANGLEY, John Langley and Jada Lynn Malone, Appellants, v. CITY OF AMARILLO, Appellee.
    No. 8961.
    Court of Civil Appeals of Texas, Amarillo.
    March 26, 1979.
    Rehearing Denied April 9, 1979.

      Carson Smith & Associates (Tim L. Hoffman), Amarillo, for appellants.
    Gibson, Ochsner & Adkins (Joe Harlan), Don Cheatham, Amarillo, for appellee.
   ROBINSON, Chief Justice.

Thomas E. Langley, John Langley, and Jada Lynn Malone, plaintiffs, sued defendant, City of Amarillo, to recover money damages for personal injuries and property damage sustained in an accident involving plaintiffs’ motorcycles and a City of Amarillo police car. The trial court rendered summary judgment for the City on the ground of governmental immunity. Plaintiffs appeal. Reversed and remanded.

Plaintiffs’ petition alleged that on June 29, 1975, John Langley and Tom Langley, with his passenger Jada Malone, on their respective motorcycles, were traveling west on 6th Street in Amarillo, Texas, when, at approximately 3:15 a. m., two city police officers negligently turned their police car directly in front of the motorcycles. Plaintiffs Tom Langley and Jada Malone testified by deposition that they never saw the police car. The motorcycle on which they were riding crashed directly into the car. Plaintiff John Langley saw a “white object” come out from the left “real fast.” He swerved to avoid the object and crashed into a parked car. Tom Langley suffered a broken neck, a damaged spinal cord and an amputation of his right leg. John Langley and Jada Malone also received serious bodily injuries.

The police officer who was driving the car involved in the accident testified by deposition that he was responding to a radio transmission from another police officer concerning two speeding motorcycles; that he drove his car into the middle of the street to act as a deterrent and not as a road block; that he did not feel he was acting in an emergency situation. It is undisputed that the siren was not turned on at the time of the collision. There is dispute as to whether the red and blue beacon lights or the headlights were turned on.

The Texas Tort Claims Act, Tex.Rev.Civ. Stat.Ann. art. 6252 — 19 waives the doctrine of governmental immunity in certain respects. Section 3 provides for governmental liability for the operation of motor vehicles as follows:

Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle . . . under circumstances where such office or employee would be personally liable to the claimant in accordance with the law of this state . . Such liability is subject to the exceptions contained herein .

Section 14 of the Act lists twelve “exemptions” from application of the Act. The relevant exemptions are:

(8) Any claim arising out of the action of an officer, agent or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.
(9) Any claim based on an injury or death connected with any act or omission arising out of . the failure to provide, or the method of providing, police or fire protection.

The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589, 592-93 (Tex.1975). The summary judgment evidence in the case before us does not establish as a matter of law that defendant’s employees were acting in an emergency situation in compliance with the laws and ordinances applicable thereto. Thus, the summary judgment may not be sustained on the basis of section 14(8).

Defendant contends that the summary judgment may be sustained under section 14(9). The applicability of section 14(9) to claims growing out of the negligent operation of motor vehicles was considered in County of Brazoria v. Radtke, 566 S.W.2d 326, 329 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.). There the court stated:

In determining the meaning of this section [§ 14(9)], we must ascertain the legislative intent by reviewing the entire act. See Woods v. Littleton, 554 S.W.2d 662 (Tex.1977) supra at 665. Sec. 3 establishes governmental liability for the negligent operation of a motor vehicle by a government officer or employee. Sec. 14(8) exempts governmental units from liability for “[a]ny claim arising out of the action of an officer, agent, or employee while responding to emergency calls or reacting to emergency situations . . .” After considering these provisions in conjunction with Sec. 14(9), we conclude that the Legislature did not intend to exempt governmental units from liability for claims arising out of the negligent operation of a motor vehicle by a police officer in a non-emergency situation.

See also Terrell v. State, 574 S.W.2d 616 (Tex.Civ.App.—Austin 1978, writ pending).

We conclude that the defendant City did not sustain its burden of establishing as a matter of law that the cause of action was within an exemption to the general waiver of governmental immunity for claims growing out of the negligent operation of motor vehicles.

Accordingly, the judgment of the trial court is reversed and the cause remanded.


text:
    Ralph EVANS, Appellant, v. CASUALTY RECIPROCAL EXCHANGE, Appellee.
    No. 8949.
    Court of Civil Appeals of Texas, Amarillo.
    March 26, 1979.
    Rehearing Denied April 16, 1979.

      Brown & Brown, Phillip S. Brown, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellee.
   ROBINSON, Chief Justice.

In this workers’ compensation suit plaintiff, Ralph Evans, sought total and permanent incapacity benefits as a result of a fall on October 31, 1974, while he was an employee of Big Texan Steak Ranch in Lubbock, Texas. Defendant insurer asserted that any incapacity was solely caused by conditions existing prior to October 31, 1974. On appeal plaintiff challenges the evidentiary support for jury findings that the October 31, 1974, injury was not the producing cause of any incapacity and that the reasonable cost for medical care as a result of the October 31, 1974, injury was $297.00. He also contends that the trial court erred in submitting a sole cause instruction, in admonishing the plaintiff to listen to the questions asked, and in the admission of evidence concerning a prior compensation claim. Affirmed.

The evidence in part shows the following:

On May 14,' 1974, approximately five months before the injury in question, plaintiff fell and injured his head, neck, right shoulder, back and various other parts of his body. He was then employed as a cook at South Park Inn in Lubbock, Texas. As a result of these injuries he was unable to work for several months.

After the May 1974 injury plaintiff was hospitalized in June for seven days and in July for fourteen days for back, neck, and shoulder pain, periods of unconsciousness, hypertension, amnesic episodes, and other complaints. His physician observed him having convulsions. During his second hospitalization his physician arranged a consultation by Dr. William Gordon, a neurologist. Dr. Gordon took a history, examined him, and made some suggestions for his treatment. Dr. Gordon’s diagnosis was that plaintiff had a tense neck with thoracic outlet syndrome and memory trouble, probably related to his post-concussion syndrome. After plaintiff’s doctor released him he continued to have headaches, dizziness, and blacking out. He was unable to bend, stoop, or lift heavy objects. Thereafter, he obtained employment at the Big Texan Steak Ranch in Lubbock, Texas, as a kitchen supervisor, doing only light duty work.

The injury which is the subject of this suit occurred while plaintiff was employed at Big Texan Steak Ranch, as a kitchen supervisor. On October 31, 1974, he fell and hit his head and arm. Following the accident his right arm was put in a sling and a splint was put on the thumb and index finger of his right hand. He was not hospitalized and continued working. He received ultransonic therapy treatments in November 1974.

From November 1974 through August 1975, plaintiff was examined and treated by numerous physicians. His complaints were similar to those in June and July 1974. The records of several of these physicians reflect that plaintiff informed them of only the May 1974 injury.

In September 1975, plaintiff was examined by Dr. Gordon, eleven months after the incident at Big Texan Steak Ranch. Dr. Gordon’s diagnosis was cervical syndrome with right thoracic outlet neurovascular compression syndrome, essentially the same diagnosis as that of July 1974. Dr. Gordon testified that the October 1974 incident at the minimum substantially aggravated his cervical syndrome.

The evidence shows a history of medical problems before the injury of October 1974 and a continuation of those problems in 1975. The evidence also shows that plaintiff has obtained and retained employment at the same or higher rates of pay than before his October injury.

We are of the opinion that plaintiff has not established as a matter of law that he suffered any incapacity as a result of the October 1974 injury. There is evidence to support the jury findings that he did not suffer any such incapacity. After a consideration of all of the evidence, we are of the opinion those findings are not against the great weight and preponderance of the evidence. Further, we are of the opinion that the trial court did not err in submitting a “sole cause” instruction. The instruction given stated:

You are instructed that if the disability of Ralph Evans, was or is, caused solely by or will be caused solely in the future by the injury of Ralph Evans sustained on or about May 14, 1974, and independent of and not aggravated by any injury of October 31, 1974, if any, then, the accident, if any, of October 31,1974, cannot be the producing cause of the disability, if any, of Ralph Evans for such period of time that it is caused solely by such condition.

To defeat a claim for compensation because of a pre-existing injury the insurance carrier must show that the prior injury was the sole cause of the worker’s present incapacity. Texas Employers Insurance Association v. Page, 553 S.W.2d 98, 100 (Tex.1977). Before the 1973 amendment to Rule 277, Tex.R.Civ.P., abolished the practice of submitting inferential rebuttal special issues, the defense of sole cause would have been submitted as a special issue. The issue of sole cause or sole proximate cause was submitted when the pleadings raised the issue and the evidence showed the causal connection between the pre-existing condition and the injury upon the strength of reasonable probability. Webb v. Western Casualty & Surety Co., 517 S.W.2d 529, 530 (Tex.1974). In the case before us there is ample evidence from which the jury could conclude that plaintiff’s incapacity in reasonable probability was caused by the May 1974 injury. Under the present practice the trial court properly submitted the defense in an explanatory instruction. Rule 277, supra.

Plaintiff also challenges the legal and factual sufficiency of the evidence to support a jury finding that the reasonable cost expended by plaintiff for medical care reasonably required as a result of the October 1974 injury was $297.00.

The only bill admitted for medical care in 1974 was one for $157.00 in November 1974. The remaining bills offered were for medical problems in 1975 and 1976. Under the evidence the jury could reasonably find that those bills were incurred for medical problems unrelated to the October 1974 injury. We do not find that the plaintiff established the cost expended for medical care resulting from the October 1974 injury as a matter of law and, after considering all of the evidence, we find that the jury answer of $297.00 is not against the great weight and preponderance of the evidence.

Plaintiff next contends that the trial court erred in admitting evidence that plaintiff filed a claim for compensation for the May 1974 injury. Defendant read into evidence portions of a claim for compensation for the May 1974 injury. This claim, dated June 23,1975, and signed by an attorney representing plaintiff, alleged that plaintiff had been totally disabled and unable to hold a job since May 1974.

The question of admissibility of petitions, notices of injuries, claims for compensation, and affidavits filed in courts or with the Industrial Accident Board in connection with injuries other than the one sued on in a compensation case is governed by the well-settled rules of evidence. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963). No rule has been created making privileged the notice of injury and claim for compensation filed with the Industrial Accident Board in a worker’s compensation case. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 655 (1952). Nevertheless, an objection that this type of evidence is hearsay and prejudicial is good unless it comes under some exception to the hearsay rule. Hartford Accident & Indemnity Co. v. McCardell, supra, at 337. Under one of the exceptions to the hearsay rule, any statement made by a party or on his behalf which is inconsistent with his present position on a material matter is receivable as an admission. Id. at 337; 2 C. McCormick & R. Ray, Texas Law of Evidence § 1141 (Texas Practice 2d ed. 1956). In other words, there must be found in the plaintiff’s testimony an inconsistency between his testimony at the trial and statements made in the documents in question before they can be considered as admissions. Texas General Indemnity Co. v. Hicks, 472 S.W.2d 547, 549 (Tex.Civ.App.—Tyler 1971, no writ).

Although plaintiff did not deny in his testimony the fact of the prior injury, there is an inconsistency between the plaintiff’s testimony at trial and the statements contained in the document signed by his attorney eight months after the October 1974 injury. This inconsistency is relevant to a material issue in the case. Plaintiff maintained that the injuries he received from the October 1974 injury are the producing cause of his incapacity to labor. Defendant contended that plaintiff was suffering from no disability, but if he was, his incapacity to labor was solely the result of other injuries. Defendant sought to prove this affirmatively by showing that some other injury was the sole producing cause. The statements admitted were relevant to á material issue and were inconsistent with the position taken at trial by plaintiff.

We overrule plaintiff’s contention that the trial court erred in refusing to instruct the jury that the jury could consider the evidence concerning the prior claim only for the purpose of impeachment. Admissions made by a party to the suit or his agent are admissible not only for impeachment but also as substantive evidence on a material issue to which they may be relevant. In re Marsh, 344 S.W.2d 251, 253 (Tex.Civ.App.—Amarillo 1961, writ ref’d n.r.e.); Commercial Standard Insurance Co. v. Barron, 495 S.W.2d 276, 279 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.). No limiting instruction was necessary.

Plaintiff also contends that the trial court erred in refusing to grant plaintiff’s motion for a mistrial on the ground that the judge engaged in conduct before the jury calculated to prejudice the claimant. During cross-examination of the plaintiff by counsel for the defendant the judge pointed his finger at plaintiff and said: “Mr. Evans, every question that is asked, you have it repeated. Now, listen to the question.”

The statement of facts shows that before this admonition plaintiff had asked defendant’s counsel to repeat his question thirteen separate times. A trial judge is allowed considerable discretion in controlling the orderly progress of a trial and we do not find that the statement of the trial judge resulted in embarrassment or prejudice to the plaintiff. See Hill v. Budget Finance & Thrift Co., 383 S.W.2d 79, 83 (Tex.Civ.App.—Dallas 1964, no writ).

Each of appellant plaintiff’s points of error is overruled. The judgment of the trial court is affirmed.


author: PALMORE, Chief Justice.

text:
    Al J. SCHNEIDER, d/b/a Executive Inn Motel, et al., Movants, v. Curtis PUTNAM, Jr., et al., Respondents.
    Supreme Court of Kentucky.
    March 20, 1979.
    William P. Swain, Larry L. Johnson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants.
    W. David Klingman, Frockt &.Klingman, Louisville, Donald Campbell, Director, Workmen’s Compensation Bd., William F. Gadd, Dept, of Labor, Robert F. Stephens, Atty. Gen., Frankfort, for appellees.
   PALMORE, Chief Justice.

The appellee, Curtis Putnam, Jr., at the age of 36 years, suffered a back injury while performing manual labor as a receiving clerk for food products at the Executive Inn in Louisville. At the time of the injury he had a pre-existing but as yet nondis-abling degenerative condition of the spine. As a combined result of the injury and the dormant pre-existing condition it was necessary for him to have surgery to remove an intervertebral disc, with the further result that he is now totally and permanently disabled.

The Workmen’s Compensation Board made an appropriate award for permanent total disability and apportioned the causation and consequent liability equally between the employer and the Special Fund. Cf. KRS 342.120.

The Special Fund did not appeal. The employer’s successive appeals to the Jefferson Circuit Court and to the Court of Appeals proved unsuccessful. This court granted review in order to resolve an apparent inconsistency in principle between some of our opinions dealing with the significance and effect of pre-existing disability-

The pre-existing disability in this instance was that Putnam has been almost blind since at the age of three years he sustained an injury that resulted in the complete loss of his left eye and left him with only 20/400 vision in the right eye. Nonetheless, as he grew older he finished high school and two years of college and at the age of 19 entered upon a working career as a hotel desk clerk. Later on he ran a small restaurant in Alabama for two years, worked eight years as a receiving clerk at the Watterson and Seelbach Hotels in Louisville, and then did similar work at the Executive Inn from 1970 until 1974, the date of the accident giving rise to this proceeding.

Semantics aside, the gist of the Board’s ruling was that the claimant’s blindness was irrelevant. The circuit court agreed, holding that under the “whole man” theory as exemplified in Holman Enterprise Tobacco Whse. v. Carter, Ky., 536 S.W.2d 461 (1976), compensation otherwise recoverable by reason of a work-connected permanent injury is not affected by a pre-existing handicap that “is not a contributing factor to the present work situation in which the injury occurred.” The Court of Appeals treated the Board’s conclusion • as tantamount to a finding “that the back injury, in and of itself, produced total and permanent injury,” and on that premise held Holman and its precursor, International Harvester Company v. Poff, Ky., 331 S.W.2d 712 (1959), applicable.

The “whole man” principle is typically illustrated by the facts of International Harvester Company. Poff, the claimant, had lost an eye in 1952 as a result of an industrial accident for which he received workmen’s compensation. That injury represented a 25% occupational disability. In 1956 he was the victim of another work-connected accident, as the result of which both legs were severely mangled and one of them eventually had to be amputated. Following this injury Poff was totally and permanently disabled. On the theory that the 1956 injury would have resulted in 100% disability regardless of whether Poff had been possessed of two eyes or only one, the conclusion reached by this court, with Larson’s Workmen’s Compensation Law, Sec. 59.42, as supportive authority, was that he was entitled to the same amount of compensation as if he had been free of the pre-existing disability.

In so deciding International Harvester Company, the court distinguished two earlier decisions reflecting an opposite result upon the ground that they had been practiced under the Subsequent Injury Statute (now KRS 342.120) — in other words, that they were apportionment cases — and that is the very distinction the employer invokes in this proceeding, which also is an apportionment case.

The reason an apportionment case is different is that only in KRS 342.120, the apportionment statute, does the law expressly require that a pre-existing disability be excluded (in the form of a deduction) from the benefits otherwise payable as the result of a compensable injury or disease. This type of case is exemplified by Young v. Kentucky Baptist Hospital, Ky., 483 S.W.2d 148 (1972), in which the employe, having lost one eye when he was 12 years old, lost the other eye in an industrial accident, resulting of course in total permanent disability. The ruling there was that KRS 342.-120(4) required an exclusion reflecting the pre-existing disability. It should be observed, however, that the compensable accident would not have brought about a total disability except for the cumulative effect of the pre-existing handicap, the absence of an eye. In short, the pre-existing disability played a part, was a factor, in the residual disability, without which the ultimate disability would have been less than it was. That is not the situation in the proceeding now before us.

The opinion and award of the Workmen’s Compensation Board leaves no doubt that it was premised upon a finding that Putnam’s disability following the 1974 injury would have been the same regardless of the pre-existing limitations on his ability to see. The fact that the ultimate disability is attributable to two causes, the accident and the pre-existing degenerative condition of the spine, and therefore calls for an apportionment between the employer and the Special Fund pursuant to KRS 342.120, should not and does not necessitate consideration of the pre-existing disability attributable to the workman’s limited vision. Had his back been broken, or his legs or arms cut off, he would have been entitled to 100% compensation without regard to his previously-existing condition, and in that case the employer would have borne the entire liability. How can it be any different — and make sense — merely because liability is to be shared by the employer and the Special Fund? The answer is that it cannot, and that in referring to previous disability and “prior disabling disease or injury” KRS 342.120(3) and (4) contemplate only such pre-existing disabilities as are found to be contributing factors in the quantum or degree of occupational disability existing after the injury or disease-incident for which compensation is payable.

In short, if the disability caused by the compensable injury or disease would have been no less in any event, the pre-ex-isting condition of the claimant is irrelevant and cannot constitute a pre-existing disability within the meaning of the workmen’s compensation law.

This conclusion does not conflict with the principles and formula set forth in Young v. Fulkerson, Ky., 463 S.W.2d 118, 120 (1971), and in later enunciations of the same precepts, because we construe “the degree of occupational disability which existed immediately prior to the subsequent injury,” cf. 463 S.W.2d at p. 120, as referring only to such previously-existing occupational disability as results in a greater degree of occupational disability than would now exist without it.

The judgment of the circuit court sustaining the award is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Davis STIDHAM and Nora Stidham, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    April 28, 1978.
    Rehearing Denied June 16, 1978.

      Don A. Ward, Barbourville, for appellants,
    Ed W. Hancock, Asst. Atty. Gen., Dept, of Transp., Frankfort, Dell W. Littrell, Lexington, for appellee.
    Before PARK, VANCE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This is an appeal from an order entered September 8, 1977, which sustained a motion to strike appellants’ exceptions and dismissed this condemnation action. Appellants owned a tract of real estate in Perry County, Kentucky, through which the ap-pellee desired to construct a highway. A condemnation action was filed on October 6, 1976, pursuant to K.R.S. 416.540 et seq. Three commissioners were appointed and made their report to the court. Appellants were required to file their answer within twenty days from the date of summons. Appellants included as part of their answer, exceptions to the report of award of commissioners. On January 21, 1977, appellee moved for an interlocutory judgment, which was granted on February 11, 1977. On March 25,1977, appellee moved to strike appellants’ exceptions, and the trial judge sustained the motion to strike. This appeal followed.

The question presented is whether the appellants complied with K.R.S. 416.610 and K.R.S. 416.620 in filing exceptions pri- or to the entry of the interlocutory judgment, which was before the thirty day statutory period began to run. A careful examination of the record shows that the appellants did not violate those statutory provisions, and we therefore believe the exceptions should not have been stricken.

Here, the exceptions were incorporated in the answer and, therefore, could be considered as a pleading. Civil Rule 12.06 provides that a motion to strike shall be filed within twenty days after the service of a pleading. Appellee did not file its motion to strike until more than twenty days after the appellants had filed their answer and exceptions. If appellee had filed its motion to strike in a timely fashion, and the motion had been sustained, then the appellants would have still had time within which to file their exceptions.

When the report of commissioners is filed, the property owner can express his disagreement with the amount fixed in the report by filing exceptions. The purpose of K.R.S. 416.620 would be fulfilled, and it is unnecessary to wait until the interlocutory judgment is filed to express disagreement with the price as fixed by the commissioners. Here, the appellee waited longer than sixty days, during which time the interlocutory judgment was entered, and then continued to wait for longer than thirty days before complaining about the exceptions.

K.R.S. 416.620 is a limitations statute which prohibits the filing of exceptions at any time after thirty days from the date of interlocutory judgment but does not prohibit the filing of exceptions before the thirty day period.

Therefore, the judgment of the trial court is reversed and this case is remanded for action consistent with this opinion.

All concur.

      . K.R.S. 416.600 provides:
      “Any answer or other pleading filed by the owner in response to the summons shall be filed on or before the twenty days after date of service and shall be confined solely to the question of the right of the petitioner to condemn the property sought to be condemned, but without prejudice to the owner’s right to except from the amount of the compensation awarded in the manner provided in K.R.S. 416.550 to K.R.S. 416.670.”

      . K.R.S. 416.610(4) provides in part:
      “If the owner has filed answer or pleading putting in issue the right of the petitioner to condemn the property or use and occupation thereof sought to be condemned, the court shall, without intervention of jury, proceed forthwith to hear and determine whether or not the petitioner has such right. If the court determines that petitioner has such rights, an interlocutory judgment, as provided by subsection (2) of this section, shall be entered.”

      .K.R.S. 416.620(1) provides in part:
      “Within thirty (30) days from the date of entry of an interlocutory judgment authorizing the petitioner to take possession of the property, exceptions may be filed by either party or both parties by filing with the clerk of the circuit court and serving upon the other party or parties a statement of exceptions, which statement shall contain any exceptions the party has to the award made by the commissioners.”


text:
    John C. STINNETT and Mary K. Stinnett, Appellants, v. Ollie H. MULQUIN, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1978.
    Rehearing Denied Jan. 19, 1979.
    Discretionary Review Denied April 24, 1979.

      Gilbert Hale Nutt, Terry E. Fox, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellants.
    Lee E. Sitlinger, Jr., Louisville, for appel-lee.
    Before COOPER, GANT and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a summary judgment entered March 1, 1978, which dismissed a claim for personal injuries by a non-resident motorist and his wife, arising out of a collision on November 26, 1976. Appellants were residents of Booneville, Indiana, had Indiana motor vehicle operator’s licenses and were owners of two motor vehicles registered in Indiana. Appellants had motor vehicle insurance through Liberty Mutual Insurance Company in the state of Indiana. The trial court granted a motion for summary judgment, construing the Kentucky no-fault insurance act as a bar against the appellants’ claim for injuries, and that as a matter of law the plaintiffs/appellants’ complaint should be dismissed. This appeal followed.

Appellants set out four assignments of error as follows:

1) The trial court committed reversible error in granting appellee’s motion for summary judgment because there was a genuine issue of material fact.
2) The trial court committed reversible error when it interpreted KRS 304.39-100(2) as abolishing the tort right of nonresidents insured by companies doing business in the state of Kentucky.
3) The trial court’s interpretation of KRS 304.39-100(2) violates Sections 14 and 54 of the Kentucky Constitution.
4)The trial court’s interpretation of KRS 304.39-100(2) violates the due process and equal protection clauses of the United States Constitution.

This Court considers that the overriding question in determining this matter is whether the appellants had an affirmative opportunity to reject the legislatively imposed limitation on an individual’s tort right to sue.

This Court reverses the summary judgment of the trial court and remands this case for a determination of the factual question as to whether a rejection form was sent by the Liberty Mutual Insurance Company and received by the appellants.

The trial court indicated that non-residents should not have greater rights in Kentucky than residents. The trial judge said that it was unreasonable that non-residents would acquire more constitutional protection from the Kentucky Constitution than the citizens of Kentucky. It appears to us that constitutional protection should be afforded equally to those who are affected by Kentucky law.

KRS 304.39-060(1) provides that any person who operates or uses a motor vehicle on the public roadways of Kentucky shall have accepted the provisions of the Kentucky no-fault insurance law.

KRS 304.39-060(2)(a) further provides that tort liability, with respect to accidents occurring in Kentucky and arising from the use of a motor vehicle, is abolished to the extent basic reparation benefits are payable.

KRS 304.39-030 provides that if an accident occurs in Kentucky, every person suffering loss from injury arising out of the accident, whether such person is a resident or non-resident, has a right to basic reparation benefits, unless he has rejected the limitations on his tort right to sue. Here, the record is not sufficiently clear to indicate that an affirmative opportunity to reject the limitation on individual tort rights was given. Such an opportunity is the cornerstone of inclusion in legislative enactments which limit the right of suit guaranteed by Kentucky Constitution Section 54. See: Wells v. Jefferson County, Ky., 255 S.W.2d 462 (1953) and Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975).

Here, Liberty Mutual indicates that it has filed, with the Kentucky Commissioner of Insurance, a form declaring that all of its automobile liability policies, wherever issued, provide basic reparation benefits coverage to those insureds for accidents occurring in Kentucky, and that a rejection form was mailed to those policy holders. Appellants dispute that critical fact, indicating that they were never provided with a rejection form as required by the Kentucky statute. The testimony in the record does not convince this Court that an affirmative opportunity to reject had been afforded the appellants.

Therefore, pursuant to Civil Rule 56.03, it is our opinion that there is a genuine issue of material fact and the appellee was not entitled to a judgment as a matter of law.

This Court now turns to the other issues raised by the appellants. Our examination of the record indicates that the trial court did not commit reversible error in respect to the question of excess coverage.

It appears to us that the policy of insurance with Liberty Mutual was a contract of insurance that provided basic reparation benefits coverage. It appears from the record that the appellants did, in fact, collect basic reparation benefits from Liberty Mutual.

The trial court’s interpretation of the Kentucky nofault statute does not violate Sections 14 and 54 of the Kentucky Constitution, except as we have indicated above. The limitation on the right to sue should be uniformly applied to both residents and non-residents. The overall question of constitutionality has been decided in Fann v. McGuffey, supra. Although we may not agree with the decision by the four to three majority in that case, this Court is governed by the decision in that case, insofar as it sets an overall legal policy for the interpretation of the statutes in question.

The appellants’ arguments relative to the alleged violation of the due process and equal protection clauses of the United States Constitution are without merit. Equal protection does not require identical treatment for all persons. The government retains the power to treat different classes of people in different ways, so long as the classification has a reasonable basis. See: Probus v. Sirles, Ky.App., 569 S.W.2d 707, (1978).

The summary judgment of the trial court is reversed and this matter is remanded to determine the fact of whether an affirmative opportunity was provided the appellants to reject the limitation on the right to sue.

All concur.


author: HOWARD, Judge.

text:
    James Edward AMBURGEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 12, 1979.

    As Modified Jan. 26, 1979.
    Discretionary Review Denied April 24, 1979.

      Jack Emory Farley, Public Advocate, Kevin Michael McNally, Asst. Public Defender, Com. of Kentucky, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., J. Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before HAYES, HOWARD and PARK, JJ.

       The decision of the panel was made prior to January 1, 1979, but the opinion was not rendered until this date.

   HOWARD, Judge.

This is an appeal from the denial of a RCr 11.42 motion. The motion, brought in Fayette Circuit Court, sought to reinstate the appeal of appellant’s 1976 conviction on charges of murder, rape, and sodomy. The circuit court overruled the motion noting that the Supreme Court had previously denied further time extensions in the first appeal and had dismissed the appeal. Appellant contends that he is entitled to relief under RCr 11.42 because the ineffective assistance of counsel on his first appeal caused that appeal to be dismissed without a hearing on the merits. We hold that appellant’s RCr 11.42 motion was properly denied. Cleaver v. Commonwealth, Ky., 569 S.W.2d 166 (1978).

The background of this case is relevant to the disposition of this question. Judgment was entered on appellant’s conviction on May 28, 1976. Notice of appeal to the Supreme Court was timely filed on June 4, 1976. The record on appeal was timely filed on October 4, 1976. On November 15, 1976, the Supreme Court granted the motion to substitute appellant’s counsel of record. Appellant is an indigent and has been represented throughout this appeal by the Office of Public Advocacy. A motion for an extension of time within which to file the brief on appeal was granted on that day until December 13, 1976. A second motion for extension was granted on December 13 until January 12, 1977. Appellant’s counsel filed three additional motions for extensions, all of which were denied. On May 18, 1977, the Supreme Court granted the Commonwealth’s motion to dismiss the appeal on the ground that appellant had failed to file a brief within the proper time. The motion for a belated appeal under RCr 11.-42 was brought in Fayette Circuit Court on January 24, 1978. The motion was denied without a hearing on June 20, 1978.

The Supreme Court has recently held in a similar situation that RCr 11.42 does not confer jurisdiction on a circuit court to reinstate a right of appeal where the Supreme Court had previously dismissed that appeal. Cleaver, supra. The Court also stated that the “right to a belated appeal, or to reinstate a lapsed appeal, can be granted only by the appellate court that is to entertain it.” Id. at 169. The circuit court properly denied the RCr 11.42 motion because it did not have jurisdiction to reinstate appellant’s appeal once the Supreme Court dismissed it.

Appellant cites Blankenship v. Commonwealth, Ky.App., 554 S.W.2d 898 (1977), in support of his contention that this Court should grant him a belated appeal. Blankenship’s appeal from a conviction of robbery, for which he received a sentence of ten years, was dismissed by the former Court of Appeals in 1975. Blankenship then moved the trial court to grant him a belated appeal under RCr 11.42. The motion was denied and an appeal of that ruling was taken to the present Court of Appeals. The Court reversed and remanded to the trial court with directions that Blankenship be granted a belated appeal. The basis for the Court’s decision was that the failure of appellant’s counsel to timely file the record on the original appeal rendered the process of appellate review of the case a farce and a mockery. Id. at 902. This decision does not change the result in the instant case. It is clear from Cleaver, supra, that only the appellate court which has jurisdiction to entertain an appeal in a particular action may reinstate an appeal or grant a belated appeal. Cleaver, supra at 169. The appeal by Amburgey was from a conviction for rape, murder and sodomy. Under the Kentucky Constitution, the Supreme Court has jurisdiction over an appeal from the conviction. Ky.Const. § 110. Therefore, only the Supreme Court has the power to grant a new appeal and that Court has previously dismissed the appeal. Blankenship, in contrast, was granted a belated appeal from a robbery conviction and sentence of ten years. The Court of Appeals had jurisdiction over that appeal and therefore had the authority to reinstate the appeal. Neither this Court nor the circuit court has the authority to reinstate appellant’s appeal. Cleaver, supra.

The judgment of the circuit court is affirmed.

All concur.


author: VANCE, Judge.

text:
    Lawrence E. WHEELER, Appellant, v. Carolyn WHEELER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1979.
    Rehearing Denied April 6, 1979.

      Glen S. Bagby, Lexington, for appellant.
    Darrell B. Hancock, Lexington, for appel-lee.
    Before HOWARD, VANCE and WIN-TERSHEIMER, JJ.
   VANCE, Judge.

This is the second appeal in this case. In an unreported opinion, 567 S.W.2d 322, this Court reversed the allowance of maintenance to the appellee in the amount of $350.00 per month because the trial judge failed to make findings as to the reasonable standard of living for the wife, the amount of income that would be produced by property assigned to her as marital property and the earning potential of the wife. The case was remanded for additional findings and the entry of a new judgment.

On remand the trial judge found that the appellee would require $720.00 per month for a reasonable standard of living, that property set aside to her could be expected to produce $240.00 per month, that her earning potential was $300.00 per month, that she required maintenance from appellant of $180.00 per month to meet her reasonable needs and that appellant was able to pay that amount. Maintenance in the amount of $180.00 per month was adjudged.

Appellee testified that her present expenses amounted to $587.81 per month. The trial judge accepted all these expenses as reasonable and further found that reasonable livelihood according to the standard she had enjoyed during the marriage would require, in addition to her then current expenses, an additional amount of $40.00 per month for lunches, $20.00 per month for electricity and $80.00 per month to replace her automobile.

Appellant contends correctly that no evidence was presented to justify these additional allowances and further contends the trial judge had no authority to take judicial notice of these additional expenses.

The trial judge was directed to make a finding as to the reasonable requirements of appellee and in so doing he was not bound by her testimony as to the amount of her current cash outlay for expenses. Her standard of living had provided her with the use of a car. The appellee was awarded a car in the division of marital assets and common knowledge dictates that eventually the car will wear out and have to be replaced. The fact that appellee overlooked this does not mean that the trial judge must not consider it. We are not persuaded that his allowance for this item is clearly erroneous. The appellant does not argue that these allowances were excessive in fact but only that there was no evidence to justify them, but under the particular circumstances of this case we feel that the trial court could make such a determination.

We also find no error in the determination that the earning potential of the wife is $300.00 per month or that her marital property can be expected to produce $240.00 per month. This income was computed on the basis of investment for a 6% return. The wife was not shown to have any particular expertise in financial matters and the failure to find that she could reasonably expect a higher return is not clearly erroneous.

No contention is made that the appellant is unable to pay the award, and the fact that the award will provide substantially the same spendable income for both the appellant and appellee is, in itself, no reason to reverse the award.

The future earning capacity of the parties is not capable of exact determination, and if changes occur that render the award unfair it may be amended upon proper application.

During the pendency of the appeal the appellant paid appellee $350.00 per month as required by the judgment. This was $170.00 per month more than the amount which the trial court has now determined to be reasonable and which should have been adjudged in the original judgment. Appellant’s motion for credit for this overpayment was denied. We think the denial was erroneous.

The order for temporary maintenance expired when a permanent judgment for maintenance was entered. That judgment was reversed and a new judgment for a lesser amount was entered. The new judgment must be substituted and be effective as of the date of the original judgment as the amount which appellee was entitled to receive, and appellee must account to appellant for the overpayment. This does not mean, however, that appellant can be excused from paying any maintenance until he has received full credit for the overpayment. The trial court can apportion the credit over a reasonable period of time, and appellant’s monthly payments can be reduced in the reasonable discretion of the trial judge over a period of months to insure that appellant will receive full credit for the overpayment.

The case is remanded to circuit court for the entry of a new judgment in conformity with this opinion.

All concur.


author: COOPER, Judge.

text:
    Homer Henry SOWDERS, Appellant, v. (The) MASON & DIXON LINES, INC., Special Fund, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 16, 1979.
    William A. Watson, Watson & Watson, Middlesboro, for appellant.
    Armer H. Mahan, Davis & Mahan, Louisville, Gemma M. Harding, Dept, of Labor, Louisville, Kenneth Hollis, General Counsel, Dept, of Labor, Frankfort, for appellees.
    Before COOPER, GANT and HOWARD, JJ.
   COOPER, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court affirming the denial of benefits to appellant, Sowders, under the Workmen’s Compensation Act. (KRS Chapter 342 — the Act)

There is no real disparity concerning the proven facts in this case. On February 9, 1976, appellant suffered a “heart attack” at work. It was determined that appellant did not sustain a myocardial infarction in which the blood supply is cut off to a portion of the heart muscle due to matter clogging the feeder arteries resulting in the necrosis (death) of part of the heart tissue itself. Rather, it was the undisputed medical conclusion that appellant suffered an attack of angina pectoris. This condition occurs when a person suffering from atherosclerosis (clogged arteries) crosses a certain threshold of exertion. His coronary arteries being wholly or partially blocked with plaque will not permit a sufficient amount of blood to reach the heart muscle. The body’s method of “warning” that the heart is not receiving enough blood to sustain the level of activity is through “angina,” which is simply chest pain. If the activity is not ceased and/or treatment received, a true heart attack or infarction resulting in permanent damage to the heart tissue can result. Of course, if the blockage is extensive enough, death may follow. Fortunately for the appellant in this case, all he suffered was the warning signal of angina. There was no permanent damage to the heart muscle.

Broadly summarized, it is appellant’s dual faceted contention that he should be allowed to recover permanent occupational disability benefits because the buildup of plaque and the attack occurred on the job, and because the physical strain of his job duties brought on the attacks. He argues that KRS 342.004 mandates a liberal construction of the Act on questions of law and that causation is a legal, as opposed to a medical, concept.

Accepting all the above as true, we are unable to reach the decision that appellant is entitled to benefits. The medical testimony establishes that while the angina pec-toris may be temporary disabling pain, it is merely symptomatic of the underlying ath-erosclerotic condition. That is the harmful change in the human organism which causes the pain. KRS 342.620(1) defines injury for which compensation may be received as a work related harmful change in the human organism. Therefore, to recover benefits in this case the appellant was required to establish that this atherosclerosis (coronary artery disease) was caused by his job.

Taken as a whole, there was nothing in the evidence which showed that anything in appellant’s work situation contributed to or increased his risk of contracting coronary artery disease. His disabling condition, therefore, was not an occupational disease in the statutory sense. KRS 342.620(2).

Little, if any, of the evidence in the record would support an inference that appellant’s work or working conditions specifically contributed to the buildup of arterial plaque. The medical testimony revealed that although medical science has not determined with precision the causes or origins of coronary artery disease, it is often traceable to heredity and diet. One doctor flatly stated the opinion that appellant’s job had nothing to do with the development of his coronary artery disease. Based on our review of the evidence relative to causation, we are unable to find any grounds for holding that the Board’s decision was clearly erroneous. On the contrary, we think it was supported by substantial evidence and must therefore be affirmed. Cf. Holman Enterprise Tobacco v. Carter, Ky., 536 S.W.2d 461 (1976).

The result we reach here must be interpreted in light of the facts of this case. Had appellant suffered permanent damage to his heart muscle and proved that the physical strain of his job precipitated the injury, the outcome of this case could well have been different. But the employer is not liable for symptomatic — even possibly disabling — pain arising from a diseased condition which is not causally attributable to work performance or working conditions. For example, a worker who has injured his back in a non-job-related accident or who has a congenital back deformity may experience pain when he tries to perform his work duties, but the employer is not liable to furnish compensation for this. He is liable only to the extent of any additional injury, if any, caused by the work itself. To award benefits in this case would have the practical effect of converting the Workmen’s Compensation Act into general occupational health and accident insurance. This, in our judgment, reflects neither the policy nor intent of the Legislature in this regard. We base this conclusion on KRS 342.620 wherein the Legislature expressly limited coverage to “work related” injuries or occupational disease.

We therefore ultimately conclude that appellant’s disabling condition was not com-pensable because it was not work related. The decision of the Board was correct as was the affirmance of it by the circuit court. The judgment appealed from is affirmed.

All concur.