author: BISSETT, Justice.

text:
    Donald W. WADE, Appellant, v. JACKSON COUNTY, Texas, Appellee.
    No. 1149.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 17, 1977.
    Rehearing Denied March 10, 1977.

      O. F. Jones, Victoria, Larkin T. Thedford, Edna, for appellant.
    Tom Garner, Jr., Port Lavaca, for appel-lee.
   OPINION

BISSETT, Justice.

This is a suit for damages allegedly caused by the impoundment of water on plaintiff’s land. Donald W. Wade, plaintiff, instituted suit against Jackson County, Texas, and E. T. Rose, Jr., Trustee, defendants to recover damages to his land which he claimed he had suffered because of the failure of the defendant Jackson County to maintain a public road that provided proper drainage to his land, and because of the construction of a levee built by the defendant Rose upon his own land that impeded the natural flow of water across plaintiff’s land. A non-suit was taken as to the defendant E. T. Rose, Jr., Trustee, on March 29, 1976. Summary judgment was rendered in favor of the defendant Jackson County, Texas, (County) on May 27, 1976. Plaintiff (Wade) has appealed.

Wade, in his second amended original petition, the pleading last filed by him prior to the hearing on the motion for summary judgment, alleged: 1) he is the owner of a tract of land in Jackson County, Texas, consisting of 192.5793 acres; 2) he purchased the land on March 6, 1971; 3) the land is north of a public road known as “Country Club Road”; 4) the County for at least fifteen years prior to the filing of the suit, maintained the road, and from time to time increased the surface elevation of the road, which impeded the natural flow of water across his land and flooded his land; 5) work was last done on the road “in November or December, 1970”, when the County “laid an asphalt topping upon the surface of the road which raised the surface of the road several inches in height”; 6) shortly thereafter, “a large rainfall occurred” and his land was flooded; 7) on September 25, 1973, he presented his claim for damages to the Commissioners’ Court of the County; 8) the claim was denied.

Wade contends that the County, “under the provisions of Article 6730”, has a “mandatory obligation and duty to alleviate flooding upon a public road by the cutting of sufficient ditches to allow the water to runoff”. He claims that he is entitled to a recovery of money damages, because: 1) the failure of the County to remedy the situation, “in accordance with and in obedience to such statute, is negligence per se, and is, as a matter of law, the proximate cause of damages to the plaintiff’s land”; or, 2) the failure by the County “to correct this problem by any action on its part” constitutes the creation and maintenance of a nuisance by the defendant, that resulted in permanent damage, or in the alternative, temporary damage to his land.

Wade relies entirely upon the provisions of Tex.Rev.Civ.Stat.Ann. art. 6730 (1960). The statute reads:

“The earth necessary to construct a causeway shall be taken from both sides, so as to make a drain on each side thereof. Whenever it is necessary to drain the water from any public road, the overseer shall cut a ditch for that purpose, having due regard for the natural water flow, and with as little injury as possible to the adjacent land owners. In such eases the commissioners court shall cause the damages to such premises to be assessed and paid out of the general revenues of the county, and in case of disagreement the same may be settled by suit as in other cases.”

Wade first seeks to impose liability upon the County for negligence in failing “to alleviate flooding upon public roads” by the cutting of sufficient ditches and the installing of culverts in Country Club Road so as to allow the surface water on his land to “run under the road, rather than being dammed up by it”. He contends that the failure of the County to remedy the situation is a violation of the statute, which constitutes “negligence per se” and that such negligence renders the County liable to him in damages.

It has long been a well settled rule of law in this State that a county is not liable for injuries resulting from the negligence of its officials, officers, agents, servants or employees, and no recovery in damages can be had against a county unless liability be created by statute. Harris County v. Gerhart, 115 Tex. 449, 283 S.W. 139 (1926); Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430 (1903); Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562 (1892); Hamilton County v. Garrett, 62 Tex. 602 (1884). Article 6730 does not impose liability on the part of a county because of the negligent failure of its officials, officers, agents, servants and employees to install and maintain proper drainage facilities in connection with the construction, operation and maintenance of a public road. Wade is, therefore, precluded as a matter of law, from a recovery of money damages against the County on his theory of negligence.

Wade also seeks a recovery on the theory that the road has damaged his land in that “whenever a sufficient amount of rain falls . . . such water remains standing upon his land for a considerable length of time.” While it is settled law in this State, in the absence of a constitutional or statutory provision therefor, a county is not liable for the torts of its officials, officers, agents, servants or employees, it, being an arm of the State, has the legal right to take, damage or destroy private property for a public use, subject, of course, to the right of the owner thereof to adequate compensation for the damaging, taking or destruction thereof. State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941); Soule v. Galveston County, 246 S.W.2d 491 (Tex.Civ.App.—Galveston 1952, writ ref’d). Wade, in his alternate theory on which he predicated his cause of action, sued for the “damaging” of his land without adequate compensation.

Under the provisions of Article 6730, our appellate courts have held without exception that where the construction or maintenance of a public road by a county causes property damage to land adjacent to the road the Commissioners’ Court of the County is required to assess and pay such damages to the adjacent landowner, and failure to do so is grounds for a suit for monetary damages against the County “as in other cases”. Jones County v. Moore, 4 S.W.2d 289 (Tex.Civ.App.—Eastland, 1928, writ ref’d). This is such a case where the petition sufficiently states a cause of action against the County under Article 6730 for the alleged damaging of land. The County, however, contends that Wade’s cause of action, if any he had, was barred by the two year statute of limitation, and by laches.

Tex.Rev.Civ.Stat.Ann., art. 1573 (1962) provides:

“No county shall be sued unless the claim upon which such suit is founded shall have first been presented to the commissioners court for allowance, and such court shall have neglected or refused to audit and allow the same, or any part thereof.”

This statute is applicable to claims like the one upon which this suit is based. Jones County v. Moore, supra.

With respect to limitations in an action for the damaging of property by a county, under the general rule, limitations begins to run when the cause of action accrues, and by “cause of action” is meant the right to institute suit. Jones County v. Moore, supra. The right to institute suit against a county of money damages does not accrue until the claim has been rejected by the commissioners’ court. City of Taylor v. Hodges, 143 Tex. 441, 186 S.W.2d 61 (1945); Jones County v. Moore, supra.

However, the claim for such damages may be barred by the two year statute of limitation where suit is not filed to recover the damages within two years from the date the cause of action accrued. Jones County v. Moore, supra; Tarrant County Water Control & Improvement District Number One v. Reid, 203 S.W.2d 290 (Tex.Civ.App.—Fort Worth 1947, writ ref’d, n. r. e.); cited by both the majority and the dissenting opinions in Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1962).

The general rule that the claimant’s cause of action does not accrue so as to start the running of the statute of limitations unless all facts exist and are alleged that show the existence of a complete cause of action is subject to an exception. It (the exception) is stated in 51 Am.Jur.2d, Limitation of Actions, § 111, as follows:

“. . . if the only act necessary to perfect the plaintiff’s cause of action is one to be performed by the plaintiff, and he is under no restraint or disability in the performance of such act, he cannot indefinitely suspend the statute of limitations by delaying performance of that act. Thus, when a cause of action has accrued but the owner of the cause of action, in order to maintain suit upon it, is required to take some preliminary antecedent step, such as the service of notice upon the person against whom the cause of action exists, he is not permitted to suspend indefinitely the operation of the statute of limitations by a failure to act or by long and unnecessary delay in taking the antecedent step. Thus, as a general principle, it is not the policy of the law to permit a party against whom the statute runs to defeat its operation by neglecting to do an act which devolves upon him in order to perfect his remedy against another. If this were so, a party would have it in his own power to defeat the purpose of the statute in all cases of this character.”

The above-stated general propositions have clear support in the following Texas cases: Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926, 148 S.W. 283, 150 S.W. 884, 152 S.W. 629 (1912); Jackson v. Tom Green County, 208 S.W.2d 115 (Tex.Civ.App.—Austin, 1948, writ ref’d n. r. e.); Federal Crude Oil Co. v. Yount-Lee Oil Co., 73 S.W.2d 969 (Tex.Civ.App.—Beaumont 1934, writ dism’d), cert. den. 295 U.S. 741, 55 S.Ct. 655, 79 L.Ed. 1687; Smith v. Wise County, 187 S.W. 705 (Tex.Civ.App.—Fort Worth 1916, writ ref’d).

Both Wade and the County filed motions for summary judgment. Both motions were properly before the trial court at the time judgment was rendered which denied Wade’s motion and granted that of the County. Consequently, the evidence accompanying Wade’s motion was evidence to be considered by the Court in deciding the County’s motion. DeBord v. Muller, 446 S.W.2d 299 (Tex.Sup.1969).

The depositions are detailed and lengthy. We summarize only the summary judgment evidence that relates to the disposition of this appeal. There is no dispute with respect to any material fact, although there is disagreement between the parties as to the legal effect of some of the undisputed facts.

Country Club Road is a public road and was in existence in 1921. It was a dirt road at that time. It was first improved in the 1950’s when it was gravelled; bar ditches were built on each side and a twelve-inch pipe was installed therein in order to drain adjacent land. The road was again gra-velled in 1960, when it was widened. It was paved in 1968 or 1969, and it was “topped” by the application of a coat of premix in the early part of 1971. The “topping” was completed before the 192 acre tract was acquired by Wade. All of the work done on the road at the various times subsequent to the time it was first improved in the 1950’s had the effect of raising the elevation of the road. No additional pipes, culverts or drains were put in or under the road after the above-mentioned twelve-inch pipe was installed. The road dams up water on the land owned by Wade, and the raising of the road level to its present height has impeded the natural flow of water across the 192 acre tract. A small rain in dry times does not cause any damage to the land. A six inch rain will drain off of the land in two or three days and may or may not damage the land, depending on whether the land is dry or wet at the time of the rain. A fifteen inch rain will damage the land and will cause water to stand on a substantial portion of the Wade tract for four or five days.

Wade bought the land which he contends has been damaged by Country Club Road “trapping water on my land” on March 6, 1971. The elevation of the road has not been increased since sometime prior to March 6, 1971. Wade has been personally familiar with the road and the 192 acre tract “since about 1968”. In April, 1971, a fifteen inch rain fell in the area and inundated the land. Wade presented a written claim with the Commissioners’ Court of the County for damages in the total sum of $140,000.00 on August 27, 1973. The amount of damages requested was increased to $190,000.00 on September 25, 1973, when Wade presented another written claim to the Commissioners’ Court. The County rejected both claims.

Wade filed this suit on October 3, 1973, which was more than two years after he became aware of the fact that the road, following a large rain, caused his land to be damaged by the impoundment of rain water thereon, but was less than two years from the time that his claim was rejected by the Commissioners’ Court of the County. More than two years elapsed between the date when Wade learned that the road caused damage after a big rain (April, 1971) and the date when he first presented a claim for damages to the Commissioners’ Court (August 27, 1973).

We consider Jackson v. Tom Green County, 208 S.W.2d 115 (Tex.Civ.App.—Austin 1948, writ ref’d n. r. e.), to be in point. There, the claim was for money allegedly due for a deficiency in monthly salary due a justice of the peace for the period January 1, 1936 to July 28, 1945. The claim was presented to the Commissioners’ Court for allowance on March 5, 1947. It was rejected on March 15, 1947. The trial judge rendered judgment for the claimant on the sums of money that became due after March 1, 1945, but denied a recovery of all sums of money which became due and payable by Tom Green County prior to that date. The judgment rendered by the trial court was affirmed on the theory that lach-es prevented a recovery of all claims which were not presented to the Commissioners’ Court for payment within two years after they should have been paid. The court said:

“If the claim here can be one requiring presentation under Art. 1573, there is no question but that the right (and we think the consequent duty) to present it arose each month when the county paid less than was due. In applying the doctrine of laches the limitation period is frequently applied by analogy. Under this rule the right to present the claim would be barred in two years after that right accrued; . . . .”

The defense of laches with respect to presenting the claim to the commissioners’ court was not discussed in Jones County v. Moore, supra. The Supreme Court, however, in City of Taylor v. Hodges, 143 Tex. 441, 186 S.W.2d 61 (1945), in which it reaffirmed the rule announced in the Jones County case to the effect that limitations began to run from the date that the claim was rejected by the Commissioners’ Court, said:

“. . . No question of laches in filing the claim is presented.”

In the instant case, the question of laches is presented. There is no valid reason why this Court should not apply the rule set out in 51 Am.Jur.2d, Limitations of Action, § 111, hereinabove quoted, which was applied by the Austin Court of Civil Appeals in Jackson v. Tom Green, supra. The rule is sound, which we believe was expressly recognized by our Supreme Court in City of Taylor v. Hodges, supra.

Wade, in his deposition, stated that he had been personally familiar with Country Club Road and the 192 acre tract since “about 1968”. If he had not been aware that the road impeded the natural flow of water across the land on March 6, 1971, when he bought the same, he was certainly apprised of that fact in April, 1971. We incorporate the following portions of his deposition, to-wit:

“Q When did you build the little paved road running north to south to divide the subdivision?
A Somewhere around April, I believe, of ’71.
Q April. Right after you bought the property?
A Right. That’s what I bought the property for, to develop it.
Q And you built and paved the road immediately after you bought it?
A Right. That’s when I discovered it didn’t drain.
* * * * * *
Q Do you remember the first occasion that the water backed up on your land after you bought it?
A Yes, sir. Right after we built that road I think we got somewhere around fifteen inches of rain. And that was around April of ’71.”

Under the record here presented, it is conclusively established that Wade became aware of the fact that Country Club Road, because of improper drainage facili- • ties in the road, was causing damage to the 192 acre tract as early as April, 1971. He had a right at that time to demand compensation for the “damaging”, and, if he intended to ask for such compensation, he had the duty to present such claim to the Commissioners’ Court for allowance within two years from and after April, 1971. Since he did not present such a claim until August 27, 1973, his right to present such claim was barred by the two year statute of limitation. Jackson v. Tom Green County, supra.

The record affirmatively shows that summary judgment in favor of the County was warranted as a matter of law. We have carefully considered all of Wade’s points of error. They are all overruled.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    The CITY OF KYLE, Texas, et al., Appellants, v. H. Y. PRICE, Jr., Appellee.
    No. 12506.
    Court of Civil Appeals of Texas, Austin.
    Feb. 23, 1977.
    Rehearing Denied March 16, 1977.

      Don W. Raven, Austin, for appellants.
    James J. Pendergast, Jr., San Marcos, for appellee.
   O’QUINN, Justice.

H. Y. Price, Jr., appellee, brought this action against the City of Kyle in October of 1975, for declaratory judgment and in-junctive relief, challenging validity of an ordinance passed by the governing body of the City late in 1968, purportedly annexing nearly 200 acres of land, of which Price owned and lived on about 29 acres.

The City of Kyle answered with pleas that the new territory properly was added to the City by its unilateral action, under authority of Article 970a, V.A.C.S., known as the Municipal Annexation Act, passed by the Legislature in 1963. (Acts 1963, 58th Leg., p. 447, ch. 160 art. 1). The City further relied on Article 974d-13, V.A.C.S., a general validation act passed by the Legislature in 1969. (Acts 1969, 61st Leg., p. 44, ch. 15, emerg. eff. March 13, 1969).

The cause was tried before the court without a jury, both parties having moved for summary judgment. The trial court granted the motion of Appellee Price and entered judgment declaring the annexation ordinance void and enjoining City officials from exercising any control over the area owned by Price.

The City of Kyle has appealed and brings the single point that the trial court erred in failing to apply the validating aspects of Article 974d — 13 to the annexation attempted by the City of Kyle in 1968.

We will overrule the point of error and affirm judgment of the trial court.

It is undisputed that the City of Kyle sought to annex the additional area by following procedures found in Article 970a, and did not obtain consent of the inhabitants of the new territory, at an election called for that purpose, as required by Article 974, V.A.C.S. The City of Kyle, being a general law city, is required, in adding new areas to the corporate limits, in which three or more voters reside, to comply with Article 974:

“When a majority of the inhabitants qualified to vote for members of the State legislature of any territory adjoining the limits of any city incorporated under, or accepting the provisions of, this title, to the extent of one-half mile in width, shall vote in favor of becoming a part of said city, any three of them may make affidavit to the fact to be filed before the mayor, who shall certify the same to the city council of said city. The said city council may, by ordinance, receive them as part of said city; from thenceforth the territory so received shall be a part of said city; and the inhabitants thereof shall be entitled to all the rights and privileges of other citizens, and bound by the acts and ordinances made in conformity thereto and passed in pursuance of this title.” (Emphasis added)

This statute, originally passed in 1875 (Acts 1875, p. 156; 8 Gammel, Laws of Texas, 485, 528), has remained, without modification in the ringing grooves of change, the guide for general law cities annexing inhabited areas from enactment of the law to the present time. (Art. 503, R.S.1879; Art. 574, R.S.1895; Art. 781, R.S. 1911; Art. 974, R.S.1925). Thus consent of a majority of the qualified voters inhabiting an area sought to be annexed by a general law city is still a prerequisite to such annexation under terms of Article 974. The Municipal Annexation Act (Art. 970a) did not repeal the requirements of Article 974, or any part of that law, with respect to annexation by general law cities of areas in which three or more voters reside. Sitton v. City of Lindale, 455 S.W.2d 939, 941 (Tex.1970).

On appeal, as below, the City of Kyle relies on validation by the Legislature of the City’s boundaries as it attempted to extend them under the ordinance of 1968, and looks specifically for such validation to section 3 of Article 974d — 13, which declared:

“The boundary lines of all such cities and towns, including both the boundary lines covered by the original incorporation proceedings and any subsequent extensions thereof are hereby in all things validated.” (Emphasis added)

The Supreme Court of Texas, in 1971 and again in 1975, in construing validation acts of the Legislature employing the same or similar language, held that the specific and express provisions of the earlier statute, prescribing prerequisites and methods of adding new territory by general law cities, were not repealed, and that failure to comply with specified requirements of earlier laws was not cured by the validating acts. City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 729 (Tex.1971); City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex.1975). See also: 22 Texas Practice, Municipal Law and Practice, ch. 6 secs. 111 et seq., with forms secs. 126 et seq. (1976).

We hold that the specific and express requirement of Article 974, that consent of the inhabitants of the area to be annexed first be obtained, was not repealed by passage of Article 974d — 13, and that the City’s unilateral effort by ordinance to add the new territory without consent of the voters residing in thát area was not validated by the Legislature. The ordinance was void and is ineffective to incorporate such area within the corporate limits of the City of Kyle.

The judgment of the trial court is in all things affirmed.

      . Tennyson, who took his first train ride at night thought trains ran in grooves, not on wheels, later wrote in Locksley Hall, “Let the great world spin for ever down the ringing grooves of change.”


author: DUNAGAN, Chief Justice.

text:
    John William HINES, Appellant, v. Monte NELSON, Appellee.
    No. 961.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 24, 1977.
    Rehearing Denied March 10, 1977.

      Jerry R. Hoodenpyle, Rohne & Hooden-pyle, Arlington, for appellant.
    B. Thomas McElroy, White, McElroy, White & Sides, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is a personal injury action arising out of a rear end automobile collision. Plaintiff John William Hines (hereafter called appellant) brought suit against defendant Monte Nelson (hereafter called ap-pellee) for injuries sustained as a result of appellee’s employee, Joseph B. Whitefield, causing the tractor-trailer truck which he was driving to collide with the rear end of appellant’s automobile while the latter was stopped in. obedience to a red traffic signal at an intersection. The case was tried before the court and jury, and upon the findings of the jury a take nothing judgment was rendered for appellee.

After both sides rested, appellant moved for a directed verdict which was denied by the court. After the jury answered the special issues, appellant moved for judgment n.o.v. which was likewise denied by the court. Appellant alleges ten points of error. We reverse and render.

Appellant alleged in its pleadings that the collision which is the basis of this suit was brought about by the negligence and gross negligence of Whitefield while he was acting in the course and scope of his employment for appellee, and that said negligence consisted of failing to keep a proper lookout, driving at an excessive speed, failing to make application of brakes, failing to slow the tractor-trailer truck before approaching the red signal light at the intersection, and in failing to turn his vehicle to the left immediately prior to the collision in question. Appellant also alleged that ap-pellee was negligent and grossly negligent in hiring and in entrusting the tractor-trailer truck to Whitefield, who allegedly was a dangerous, reckless and incompetent driver based on his driving record and reputation. Appellant plead in the alternative that ap-pellee was negligent in failing to maintain an emergency back up brake system for the tractor-trailer, in failing to adequately inspect and maintain the brake system of both the truck and trailer, and in allowing the tractor-trailer to be operated in violation of state and federal regulations regulating the use of such vehicles.

Defendant answered with a general denial and in the alternative that said collision was the result of an unavoidable accident. It is appropriate to mention here that ap-pellee admitted that the doctrine of respon-deat superior applied in relation to his liability for the negligent acts of his driver, Whitefield.

The special issues involved in appellant’s points of error are as follows:

“Special Issue No. 1:
On the occasion in question did the defendant’s driver, Joseph B. Whitefield:
Answer ‘Yes’ or ‘No’ with respect to each of the following:
(c) Fail to make such application of the brakes as a person using ordinary care would have made?
Answer: No.
(d) Fail to turn the defendant’s tractor-trailer truck to the left immediately prior to the collision in question? Answer: Yes.
“Special Issue No. 2:
Was such act or omission a proximate cause of the occurrence in question with respect to:
(d) Failure to turn the defendant’s tractor-trailer truck to the left immediately prior to the collision in question? Answer: No.”

No proximate cause issue was answered as to special issue 1(c) since the proximate cause issue was conditional only on the jury answering special issue 1(c) in favor of appellant, which they did not. No negligence issue was submitted as to the jury’s affirmative answer to special issue 1(d). The jury did answer that the failure to turn to the left was not a proximate cause of the collision.

The collision in question occurred a few minutes after 12:00 noon on June 5, 1971, a clear and dry day, at the intersection of U. S. Highways 80 and 69 in Mineóla, Texas. Highway 80 runs east and west and consists of four lanes with two eastbound and two westbound lanes divided by a center stripe. The two lanes- on each side are further divided by white stripe marks. Highway 69, commonly known as Pacific Street, runs north and south, crossing Highway 80 to form an intersection. Highway 69 also has four lanes at the intersection plus two areas on both the east and west sides for angular front-end parking. The intersection is controlled by the usual city traffic light with red, green and amber signal lights.

Appellant was leaving Mineóla to return to Arlington, Texas. His route took him west on Highway 80 to its intersection with Highway 69 where he stopped in obedience to the traffic light which was showing the red signal. Appellant’s vehicle came to a complete stop in the outside lane next to the curb and was the only vehicle in such lane.

After appellant had been stopped at the light for fifteen to twenty seconds, he was struck from the rear by appellant’s tractor-trailer truck driven by Whitefield. Whitefield was in route to Wichita, Kansas. The tractor-trailer truck was loaded with cattle and weighed approximately 70,000 pounds.

Appellant testified that he did not see the tractor-trailer truck approaching from the rear, that “Something just klabloom and hit me, and hit me like a bomb, I didn’t know what was happening.” After the tractor-trailer truck made contact with appellant’s automobile it stayed in contact with the automobile pushing it approximately 120 feet across the intersection of the two highways where it came to rest close to a telephone pole. The tractor-trailer truck left no skid marks at the scene of the collision.

The accident was reported to the Mineóla Police Department and at approximately 12:20 P.M. Officer J. W. Certain arrived at the site of the collision to make his investigation. He was not an eyewitness to the collision. After talking to appellant, Officer Certain approached Whitefield and asked for his version of the collision. After speaking with Whitefield, Officer Certain inspected the truck for brakes and determined that at that time there was no air pressure built up in the braking system. Certain testified that he got in the truck, applied his feet to the brakes and also pulled a lever down on the steering column which worked the brakes on the trailer; that he checked the gauge; that he walked around the truck; that he looked at all the brake lines except the lines under the hood of the tractor-trailer truck; that he saw no lines that were broken or disconnected; and that he did not see any brake fluids spilled on the ground. In writing his accident report, Officer Certain listed “defective brakes” and “Mechanical air brake failure” as factors contributing to the collision.

Appellee’s tractor-trailer truck had an emergency back up braking system that was spring loaded and would be activated by a lack of air pressure in the braking system; that if there was little or no air pressure upon application of the manual brakes the spring would automatically activate the brakes and lock the brakes on one trailer axle and all four wheels on the trailer axle. As mentioned earlier the tractor-trailer truck left no skid marks at the scene of the accident.

In order to clear the traffic that was blocked by the collision and after making his investigation, Officer Certain ordered Whitefield to move the truck. Whitefield drove the truck a short distance around the block and parked it in front of the U. S. Post Office. There is undisputed testimony that when Whitefield moved the truck to in front of the U. S. Post Office he did so in the lowest gear; that Officer Certain did not see the truck again that day though he remained on patrol duty until 4:00 P.M. of that day; that Whitefield drove the truck to Wichita, Kansas after the accident and returned from there to McAlester, Oklahoma where appellee maintained his place of business; that Whitefield did not notify his employer, appellee, of the accident. There is no evidence that any repairs were made on the truck before Whitefield drove it to. Wichita, Kansas and McAlester, Oklahoma after the accident. Appellee himself testified that the brakes were working properly when Whitefield departed McAlester, Oklahoma to come to Texas to purchase cattle, said departure taking place the day before the accident. Whitefield did not testify nor was he a party to this action.

We shall first consider appellant’s points of error three and four, wherein appellant contends that the court erred in overruling his motion for instructed verdict because the evidence proved conclusively as a matter of law that Whitefield was negligent in failing to apply his brakes and that this was a proximate cause of the rear-end collision. Appellant in his brief relies on the case of Hoey v. Solt, 236 S.W.2d 244 (Tex.Civ.App.—San Antonio 1951, no writ) wherein it was held:

“It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition.”

Appellee raised the defense of unavoidable accident due to brake failure. If, in fact, the brakes on appellee’s tractor-trailer truck had failed due to no person’s negligence, this would certainly constitute an “extenuating circumstance” and weigh equally against any presumption of negligence in this case. The burden was on appellant to prove that the occurrence in question was not unavoidable accident. Sproles Motor Freight Lines v. Juge, 123 S.W.2d 919 (Tex.Civ.App.—Fort Worth 1938, writ dism’d); Wichita Transit Co. v. Sanders, 214 S.W.2d 810 (Tex.Civ.App.—Fort Worth 1948, no writ).

We agree with and hold applicable here the ruling in Hoey v. Solt, supra, and cite the following cases in support thereof: Lechner v. Kelley, 467 S.W.2d 652 (Tex.Civ. App.—Tyler 1971, ref. n.r.e.); Dallas Transit Co. v. Young, 370 S.W.2d 6 (Tex.Civ.App.—Dallas 1963, ref. n.r.e.), citing Hoey v. Solt, supra. “The circumstances attending a collision may be so strong that, unexplained, the inference of negligence and proximate cause to be drawn from them is one about which reasonable minds could not differ and, hence, is one of law.” Lovell v. Stanford, 378 S.W.2d 399, 406 (Tex.Civ.App.—Austin 1964) reversed on other grounds, 386 S.W.2d 755.

Appellees plead unavoidable accident due to brake failure in an attempt to explain the rear-end collision. The only evidence concerning brake failure was the testimony of Officer Certain. Officer Certain testified using the accident report which he prepared after investigating the accident to refresh his memory, although the report itself was not offered into the evidence. Certain testified that he wrote in “mechanical air brake failure” as a factor contributing to the accident report, basing this on his own opinion. Upon cross-examination, Certain testified that his opinion was partially based upon hearsay.

Appellant asserts that the accident report was admittedly based on hearsay and that the court erred in refusing to strike Certain’s testimony. Appellee contends that the objection was too general in that it was directed to the entire testimony of Certain rather than to those portions which were based on hearsay.

The record indicates that part of Certain’s testimony was based on hearsay and part was based on his own independent knowledge gained after investigation of the collision and inspection of the truck. The trial court properly ruled that Certain could testify to matters based on his own independent knowledge. Certain testified that based on his inspection of the truck it was his opinion that the collision was caused by brake failure on the truck.

On direct examination, Certain testified that he got in the cab of the tractor-trailer truck and pressed the brake pedal and brake lever on the steering column; that he checked what he could based upon what he knew about brakes; that he had a “little” knowledge of air brakes; that he concluded that after the accident there “wasn’t any brakes on the truck or wasn’t any air built up on the truck”; that it appeared to him that “his [Whitefield’s] brakes had went out caused from some failure” and that this was his opinion. On cross-examination Certain testified that he walked around the truck; that he didn’t see any broken or disconnected brake lines; that he had never driven trucks with an emergency braking system such as the one on appellee’s trucks; that what trucks with air brakes he had driven had been “some time ago”; that he had never investigated an accident involving a truck with such a brake system.

Appellant’s counsel failed to inquire as to what parts of Certain’s testimony were based on hearsay and what parts were not. Actually, it is evident from the record that Certain considered hearsay and his own independent knowledge in forming his opinion that the brakes had failed. The fact that the opinion of an expert is based partially upon hearsay and partially upon independent knowledge does not render his testimony inadmissible. Travelers Ins. Co. v. Hutchinson, 425 S.W.2d 832 (Tex.Civ.App.—Tyler 1968, no writ). This is basically one of appellee’s contentions in his brief. However, this case does not reach such a determination because we cannot agree with appellee that Certain qualified as an expert on brakes. Certain’s conclusion and opinion that the accident was caused.by brake failure was pure conjecture and speculation. Based upon the cursory inspection which Certain made of the truck, and in light of Certain’s testimony that he “had a little knowledge of air brakes,” his opinion that “his [Whitefield’s] brakes had went out caused from some failure” amounted to nothing more than a mere guess by a lay witness that the brakes had failed. As such, his testimony lacked probative value and should not be considered by the jury even when admitted without objection. Dallas Railway & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956); Willis v. Jenkins, 472 S.W.2d 600, 602 (Tex.Civ.App.—Tyler 1971, no writ); Dzilsky v. Clayton, 472 S.W.2d 603, 605 (Tex.Civ.App.—Austin 1971, no writ); State v. Wilson, 439 S.W.2d 134, 139 (Tex.Civ.App.—Tyler 1969, no writ); City of Houston v. Lakewood Estates, Inc., 429 S.W.2d 938, 941 (Tex.Civ.App.—Houston [1st Dist.] 1968, ref’d n.r.e.).

There is no probative evidence in the record that the brakes failed prior to the accident. On the contrary the evidence is undisputed that the truck was in good working order; that the brakes were in good condition when Whitefield left McAl-ester, Oklahoma on June 14, 1971; that Whitefield drove first to Fort Worth, Texas, and then drove to Mineóla, Texas where the accident occurred on June 15, 1971; that after the accident Whitefield drove from Mineóla, Texas to Wichita, Kansas and then returned to McAlester, Oklahoma in the same tractor-trailer truck. There was no evidence which the jury could consider that any repairs were made to the brake system of the tractor-trailer truck after the accident and before Whitefield drove approximately 475 miles to Wichita, Kansas and then returned to McAlester, Oklahoma.

It is our opinion that the circumstances surrounding the rear-end collision in question give rise to a presumption of negligence as a matter of law. Appellant further proved that said rear-end collision was not due to unavoidable accident caused by brake failure. Accordingly, he is entitled to recover the damages found by the jury, the amount of which appellant does not complain on appeal.

Were it necessary for us to consider appellant’s points of error numbers five and six, we would hold that the jury’s answers to special issues numbers 1(c) and 2(c) were against the great weight and preponderance of the evidence and remand for new trial on the issues of negligence only.

We find no merit in appellant’s points of error numbers seven and eight that as a matter of law Whitefield was negligent in failing to turn his vehicle to the left immediately prior to the accident.

On its face alone, a rear-end collision in which the lead car was stopped at a red light is not proof that the driver of the vehicle approaching from the rear was negligent as a matter of law in failing to avoid the accident by turning or swerving to either side of the lead vehicle. In this case, when appellant was asked by his counsel what was immediately to his left in the next lane, his reply was, “Oh, I didn’t—I don’t know, not anything.” When Officer Certain was asked if he knew of any reason why Whitefield could not have steered his truck to the left and gone around appellant’s vehicle Certain replied “I don’t know of any.” This is the only evidence in the record material to this issue. Appellant contends that this was ample evidence to allow the trial court to find negligence and proximate cause as a matter of law. We disagree.

By the nature of appellant’s second amended original petition, he relied on the failure to turn to the left as an independent ground for recovery. The evidence on this ground of recovery hardly establishes negligence such that the question of negligence becomes one of law. See Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 528 (1947). The rule in the Texas & N.O.R. Co. case “. . . simply means that if reasonable minds can differ as to the inferences and conclusions to be drawn from the undisputed evidence, then the case is one for the jury.” Lechner v. Kelley, supra. 40 Tex.Jur.2d Rev. “Negligence” sec. 156 (1976).

“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; . . .Tex.R.Civ.P. 279. Appellant failed to submit or object to the omission of a special issue on negligence for failure to turn to the left. Even if appellant had, the jury found that the failure to turn to the left was not a proximate cause of the collision. Appellant does not complain of this finding.

Appellant lastly contends that the trial court erred in excluding from evidence the driving record of Whitefield, and that the court erred in refusing to allow appellant’s counsel to cross-examine appellee with regard to the driving record. Appellant contends that the driving record was relevant to the issue of negligent entrustment.

The basis of responsibility under the doctrine of negligent entrustment is the defendant’s own negligence in permitting his motor vehicle to become a dangerous instrumentality by putting it into the driver’s control with knowledge of the potential danger existing by reason of the incompetence or reckless nature of the driver. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1948). The following elements must be proven in order to establish the owner’s liability under the doctrine of negligent entrustment:

(1) Entrustment by the owner;
(2) Negligence in entrustment to a driver who the owner knows or should have known is a reckless or incompetent driver;
(3) Negligence by the driver on the occasion in question; and
(4) Driver’s negligence was the proximate cause of the occurrence in question.

Mundy v. Pirie-Slaughter Motor Co., supra; Arias v. Aguilar, 515 S.W.2d 313 (Tex.Civ.App.—Corpus Ghristi 1974, no writ); Firestone Fire & Rubber Co. v. Blacksher, 477 S.W.2d 338 (Tex.Civ.App.—El Paso 1972, no writ).

Appellee contends that since he admitted that the theory of respondeat superior was applicable to this case, appellant could not recover under the theory of negligent en-trustment. Appellee thus seems to assert that the theories of respondeat superior and negligent entrustment are mutually exclusive modes of recovery. The cases on this point are conflicting. The distinguishing factor however generally seems to be whether gross negligence was alleged in the pleadings and against who gross negligence was alleged. In this case, appellant alleged gross negligence on the part of Whitefield, the driver, and against appellee, the owner, in entrusting the vehicle to a driver who he knew or should have known was a reckless or incompetent driver. Appellant thus contends that the driving record of Whitefield was admissible in connection with the gross negligence of appellee in hiring Whitefield.

In cases involving ordinary negligence of both the driver and owner, the owner’s stipulation or admittance that re-spondeat superior applied would render moot any issue of negligent entrustment since the owner’s liability would only extend to liability for damages caused by the negligence of his driver. There would be no separate ground for damages against the owner.

In cases involving allegations of ordinary negligence against the driver and gross negligence against the owner for entrusting his vehicle to a reckless or incompetent driver, we feel there would be a separate ground for damages against the owner in the form of exemplary damages.

Appellee cites the case of Rodgers v. McFarland, 402 S.W.2d 208 (Tex.Civ.App.—El Paso 1966, ref’d n.r.e.) wherein at page 210 it was stated:

“We see no error in the court’s excluding the driving record. It would have been admissible on the issue of negligent entrustment, to establish the liability of the owner for the acts of the driver, but it became immaterial on that issue when the owner admitted liability. Public policy would not permit forcing the parties to try an issue where none existed. The doctrine of negligent entrustment is that the owner of a vehicle who knowingly turns it over to an incompetent driver is liable for wrong committed by such driver. It differs from master-servant or agency relationship, for it is founded in tort—the negligence of the owner in turning the incompetent loose on the public. If, in fact, the owner is negligent, his liability for the acts of the driver is established, and the degree of negligence of the owner would be of no consequence. Thus, in the case before us, the allegation of the owner’s gross negligence is no more material than the allegation of his ordinary negligence in the face of his admission of liability for the acts of the driver.”

The El Paso court further stated that “When agency and course and scope of employment were admitted, previous conduct became immaterial . . ..”

Evidence of previous conduct of the driver would be immaterial as to the driver’s negligence on the occasion in question. However, appellant here attempted to introduce the driver’s driving record in relation to the alleged gross negligence of the owner in entrusting a vehicle to a reckless or incompetent driver. Thus, we think the better rule in this situation is that laid down in the case of Adams Leasing Co. v. Knighton, 456 S.W.2d 574 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ), as follows:

“Were we confronted with appellants’ contention it is that an entrustor may not be held liable for gross negligence where the person to whom a vehicle is entrusted is not shown to be guilty of other than ordinary negligence. Such contention has been resolved to the contrary. . [citing several cases] Nor may a defendant charged with gross negligence in the entrustment of a vehicle preclude proof thereof by stipulating agency on the part of the person to whom such vehicle is entrusted.”

The rule is further strengthened by the case of Union Transports, Inc. v. Braun, 318 S.W.2d 927 (Tex.Civ.App.—Eastland 1958, no writ) which discussed at length the case law surrounding the liability of an employer for exemplary damages because of the act of an employee if the employee was unfit and the employer was reckless in employing him.

Appellant attempted to introduce Whitefield’s driving record solely on the issue of appellee’s failure to make a diligent inquiry into the competency of Whitefield.

Appellee asserts that the certified Oklahoma driving record did not show either pleas of guilty or convictions as to any of the offenses shown, nor was there any indication of fault concerning the accidents which were referred to.

There is no question that an entrus-tee’s previous driving record or driving habits may show incompetence, recklessness or intemperance. Revisore v. West, 450 S.W.2d 361, 364 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ). It is also true, as appellee asserts, that a driving record containing listed violations or accidents in which no indication of guilt or fault is indicated is insufficient to show that the individual concerned was a habitually reckless and incompetent driver. Darrow v. Texas Department of Public Safety, 392 S.W.2d 785, 789 (Tex.Civ.App.—Eastland 1965, no writ). The driving record failed to show that Whitefield was a reckless driver; therefore, it should not be used for purposes indirectly seeking to establish the same.

Appellant specifically states in his brief that he does not appeal the jury’s findings of damages. Since appellant sought remand only in the alternative to a reversal and rendition, and since no complaint is made of the jury’s findings as to damages, in light of our ruling above that the facts of this case constituted negligence as a matter of law, we hereby reverse the judgment of the trial court and render judgment that appellant John William Hines recover damages from appellee Monte Nelson for personal injuries and for damages to his automobile in the total amount of $14,391.43 as found by the jury, plus interest at the rate of 9% from the date of the judgment of the trial court. Art. 5069-1.05, Tex.Rev.Civ. Stat.Ann.

Reversed and rendered.

      . The jury found that defendant driver Whitefield did not fail to keep a proper lookout; did not “drive at a greater rate of speed than a person using ordinary care would have driven”; did not “fail to make such application of the brakes as a person using ordinary care would have made”; did “fail to turn the defendant’s tractor-trailer truck to the left immediately pri- or to the collision in question”; however, the jury also found that the failure to turn the tractor-trailer truck to the left immediately pri- or to the collision was not a proximate cause of the collision; did not “follow the vehicle ahead of him more closely than a person using ordinary care would have followed”; and did not “fail to maintain an assured clear distance between the defendant’s tractor-trailer truck and the vehicle driven by John William Hines.” The jury found that the plaintiff-appellant had been damaged in the total sum of $14,391.43 as a result of the accident.


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY and/or New York Underwriters Insurance Company, Appellant, v. Leonard T. LUCAS, Appellee.
    No. 989.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 17, 1977.
    Rehearing Denied March 3, 1977.

      William Drew Perkins, Lufkin, for appellant.
    F. P. Granberry, Granberry & Hines, Crockett, for appellee.
   DUNAGAN, Chief Justice.

The opinion delivered on January 20, 1977, reversing and rendering the judgment of the trial court is set aside and this opinion is substituted therefor.

This is an appeal by defendant-appellant in a workmen’s compensation case wherein judgment was rendered and entered on a jury verdict awarding plaintiff-appellee total and permanent disability benefits as a result of an injury received on or about August 26, 1974.

Prior to judgment appellant filed a motion to disregard the jury’s answers to Special Issues 1 and 3 and, subject to the motion to disregard, filed its motion for judgment non obstante veredicto on the grounds of no evidence or insufficient evidence to support the jury’s answers to said issues and that said answers are against the great weight and preponderance of the evidence as to be manifestly unjust. Appellant raised the same questions in its motion for new trial. These motions were overruled.

Appellee in Paragraph IV of his First Amended Petition alleges:

“. . . that because of a pre-exist-ing condition, Dr. Nathan W. Caldwell had advised your Plaintiff to restrict his employment to a position which requires less standing on his feet and thereafter was assigned to an office job by Plaintiff’s employer, Nucor Corporation at its steel fabricating plant in Grapeland, Texas.
“On or about August 26, 1974, your Plaintiff, after having been ordered by his foreman, was in the process of looking for a shipment of steel angles that had been misplaced. He was walking on some bridging and his shoe caught on a piece of bent rod and he slipped. His foot slid in between two packages of bridging injuring his foot, let [leg] and other parts of his body. Thereafter he notified his foreman of the injury and was advised to render first aid to and for the injuries himself. The cut on his ankle received that day refused to heal and resisted medical treatment and developed thrombophlebitis and because of the condition resulting, your Plaintiff was ordered and forbidden to work and was found to be and is now because of said injury totally and permanently disabled from performing the ordinary tasks of such a workman, and, as such, has become, according to Texas Law within the meaning of the Workmen’s Compensation Act, totally and permanently disabled, and in all reasonable likelihood this condition will continue for the balance of his natural life.’’

Appellant by its points of error 1, 2 and 3 contends that there is no evidence to support the jury’s finding to Special Issue No. 1 , or the evidence is insufficient to support such answer and that the answer is so against the great weight and preponderance of the evidence as to be manifestly unjust and wrong.

By its points of error 4, 5 and 6 the appellant contends that there is no evidence to support the jury’s answer to Special Issue No. 3, or the evidence is insufficient to support such answer and that the answer was so against the great weight and preponderance of the evidence as to be manifestly unjust and wrong.

In 1971 plaintiff began his employment with the Nucor Company as a steel rigger. Appellee was suffering from diabetes at that time. In February 1972 he began receiving medical treatment from Dr. Nathan Caldwell for diabetes, complications thereof and for an ulcer on the big toe of his right foot. He was seen relatively frequently by his physician for the infection in his foot and was hospitalized in May 1972 for seven days for surgical procedure performed on his foot. In September 1972 he was hospitalized again and another surgical procedure was performed on his toe in October 1973. Appellee was also treated for regional enteritis and varicose veins. Except for the above described physical condition of the appellee, he was in reasonably good health. Dr. Caldwell, who testified on behalf of appellee, was the only medical expert to testify. He testified that at the time he saw the appellee on August 29, 1974, he definitely had an infected scratch on the left ankle with red, swollen areas around the lower left leg with shallow varicose veins on the right leg. The left leg had thrombophlebitis. Dr. Caldwell testified, “I think the thrombophlebitis was probably at least started at that time by the superficial injury that he received which became infected which is not uncommon in diabetics.” The doctor further testified, “Well, any trauma, any injury, can predispose to thrombophlebitis, particularly also, if it happens to a person who has varicose veins, and particularly then, if the cut gets infected it can cause it.”

In May 1974 appellee developed a chronic inflammatory disease of the small intestine. He was hospitalized in June 1974 for three days.

In March 1973 his physician advised him that he could not work on any job which required prolonged standing nor could he wear safety shoes. He was advised that the problem with his toe was chronic and he must have a sedentary job. In compliance with this advice he was moved to a desk job in the shipping department. His duties were to file papers and answer the telephone. Pursuant to a request, he was “looking for a bundle of bridges that a consumer hadn’t received on his shipment.” While doing so he hung his shoe “under a bridging tie and stepping down between the bridging made of angle iron, off balancing and cut my ankle.” His physician referred to it as being a “superficial injury to his ankle.” He worked a few days after the scratch, or cut, until it became infected. Since that day he has not worked.

The medical testimony also shows that there was no phlebitis prior to the cut ankle; Dr. Caldwell ordered appellee to cease working and stay off his feet as much as possible; that in Dr. Caldwell’s opinion appellee is disabled; that appellee had no thrombophlebitis problem prior to the cut on his ankle and Dr. Caldwell testified “I think the episode with that leg in August at that time was related to the scratch on the leg” and also “I think that that injury predisposes to this episode”; that the trouble with the right big toe did not bring on phlebitis; Dr. Caldwell testified that the infection was immediately adjacent to the veins that became involved and for that reason “I thought there was a relationship.”

The testimony is undisputed that appellee was suffering from diabetes, a circulation problem, and varicose veins prior to the injury of August 1974. Sometime after August 1974 he developed thrombophlebitis in both legs. The thrombophlebitis developed first in his left leg.

It is undisputed that the only “injury” he suffered on his job was a superficial cut, or scratch, on his left ankle approximately one-half inch long and one-eighth inch deep. Dr. Caldwell on direct examination testified:

“A. Well, the problem seemed that we could never get him completely free of inflammation of his legs, particularly the left.
“Q. What, in your opinion, caused that situation to occur?
“A. I think that the thrombophlebitis was the cause of the pain in his legs. I think the thrombophlebitis was probably at least started at that time by the superficial injury that he received which became infected which is not an uncommon problem in diabetics.
“Q. All right. What is the relationship between a cut and thrombophlebitis, medically?
“A. Well, any trauma, any injury can predispose to thrombophlebitis, particularly also, if it happens in a person who has varicose veins and particularly then, if the cut gets infected, it can cause it.
“Q. But for this scratch or cut that he received on his ankle, in your opinion would he have thrombophlebitis?
“A. Say that again.
“Q. But for the cut that he had received back in August of 1974, would he have developed this severe thrombo-phlebitis?
“A. In all liklihood he would not have. It’s possible, who knows?
“Q. All right. Would it be a fair statement to say that these cuts predispose on the condition that he had at that time, would generally and does generally produce this result?
“A. No, not generally. Cuts don’t produce thrombophlebitis.”

The medical testimony also shows that appellee had some thrombophlebitis in both legs. In this regard Dr. Caldwell gave the following testimony:

“A. He has had some thrombophlebitis in the other leg also, yes, sir.
“Q. So, it would indicate from that that the thrombophlebitis was caused by something other than the scratch on the leg or cut on the leg?
“A. He had not had problems with this thrombophlebitis prior to August. I think the episode with that leg in August at that time, was related to the scratch on his leg. I can’t swear that it wouldn’t have occurred otherwise.
“Q. Now, and you said you cannot tell whether he would or would not have had the thrombophlebitis with or without this superficial injury to his ankle.
“A. No, sir. I can’t really say that he would or wouldn’t have. I think that that injury did predispose to this episode.”

Appellee has not alleged nor submitted an issue nor offered proof on any aggravation of a pre-existing injury.

When the assignment of error is that there is “no evidence,” the reviewing court may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957).

As to the causal connection between the injury in question and the thrombophlebitis, the doctor’s testimony is couched in terms of “I think,” “I thought,” “possible,” “who knows” and “it can.”

It is undisputed that appellee received the injury in question while in the course and scope of his employment. However, the primary question is — was the injury the producing cause of appellee’s disability? There is no evidence of probative force that in reasonable medical probability or reasonable probability that it did. Neither did the doctor testify positively that it did. The only testimony based on reasonable medical probability is that his “condition is going to exist in its present state or worse for the balance of his life.” This testimony is applicable only to the duration of appel-lee’s incapacity and not to the producing cause of his incapacity.

There is no dispute as to the type of injury appellee received nor that he developed thrombophlebitis first in his left leg about two or three days before he went to Dr. Caldwell on August 29,1974. But there is no evidence of probative force to establish within reasonable medical probability the causal connection between the injury and his present condition.

The testimony of whether or not, in the opinion of the doctor, there is a reasonable medical probability that there was a causal connection between an injury and a disability is required (1) in instances where the question of causation is peculiarly within the realm of scientific knowledge, (2) in predicting the future manifestations of a present injury and (3) in malpractice cases. Western Casualty and Surety Co. v. Gonzales, 506 S.W.2d 303, 311 (Tex.Civ.App.-Corpus Christi 1974) affirmed 518 S.W.2d 524 (Tex.1975). We believe that this case falls within the first category above mentioned. In Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524, 526 (Tex.1975), the Supreme Court stated: “It is when he [the doctor] is uncertain, or does no more than acknowledge that everything is possible, that a gap in the proof may be closed only by the doctor deciding that the chances weigh more heavily in favor of the causal relation.” The doctor’s testimony in the instant case clearly shows that he was uncertain as to the causal relation between the injury and the thrombophlebitis and acknowledges it’s possible that the injury caused the thrombo-phlebitis. He could not swear it did.

After a careful consideration of the doctor’s testimony in its entirety and the record as a whole we have concluded that there is no evidence of probative force to support the jury’s answer to Special Issue No. 1. We sustain appellant’s first point of error. In view of our disposition of this case we do not reach appellant’s remaining points of error. American Surety Co. v. Stemmons, 413 S.W.2d 732 (Tex.Civ.App.-Tyler 1967, writ ref’d n. r. e.); Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966).

The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.

      . “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that the injury sustained on or about August 24, 1974 was a producing cause of any total incapacity?
      “ANSWER: We do.”

      . “SPECIAL ISSUE NO. 3: Find the duration of total incapacity, if any. (By answering ‘Permanent’ or by stating the ending date.)
      “ANSWER: Permanent.”


author: JONES,' Justice.

text:
    Charles P. SWEAT, Appellant, v. Ida Mae Foley TURNER, Appellee.
    Supreme Court of Kentucky.
    Dec. 17, 1976.
    Rehearing Denied April 1, 1977.
    James E. Thompson, Burnam & Thompson, Richmond, for appellant.
    John F. Lackey, Lackey & Lackey, Richmond, for appellee.
   JONES,' Justice.

This appeal is from a judgment that dismissed Charles P. Sweat’s petition for custody of his illegitimate 4-year-old daughter, Michelle Foley. The petition was filed three weeks after Eva Foley, Michelle’s mother, was killed in an automobile accident, and 12 days after Michelle’s release from the hospital following treatment of her injuries from the same accident. The trial court dismissed Charles’ petition for lack of jurisdiction of the subject matter and on the contradictory theory that Charles “committed laches by his neglect to bring an action within a reasonable length of time.” However, the trial court found Charles a fit custodian of Michelle.

Charles prosecutes this appeal. He contends that after Eva’s death, he had the right to custody of Michelle. Ida Mae Foley Turner, Michelle’s maternal grandmother, contends that Charles lacks standing to seek custody, because he had not complied with the provisions of the Uniform Paternity Act.

Michelle is a biracial child, black in appearance. Charles is a Negro; Eva was Caucasian. Eva became pregnant during a high school romance with Charles. Soon after she became pregnant with Michelle her relationship with Charles ceased. Charles then attended college. He is now married and is employed. He and his wife earn $15,000.00 annually. They own a nice home and are not in debt.

During the two years prior to her death, Eva lived in her apartment with John Harris, also a Negro. John was extremely jealous of Charles. He did not want him around Eva or Michelle. Because of John’s jealousy, Eva rejected Charles’ continuing offer of financial support for Michelle. Both Eva Mae and Charles considered Michelle their child. On a number of occasions Eva told others that Charles was Michelle’s father. She gave him a picture of Michelle which he carried in his billfold. Charles also had a picture of Michelle in the family photo album.

In December 1975, Eva was killed in an automobile accident. Michelle was seriously injured. Upon learning of Eva’s death and Michelle’s injuries, Charles went to the hospital. He informed the hospital authorities that he was Michelle’s father and would pay all expenses incurred. Ida Mae Foley Turner was also at the hospital. She asserted her right to the custody of Michelle and obtained from the Fayette Juvenile Court a temporary emergency order for custody of her granddaughter. When Michelle was released from the hospital Ida Mae took the child to her home in Berea.

This is a case of first impression in the Commonwealth. This court is plowing new ground. Ida Mae’s argument that the Uniform Paternity Act vests the county court with the exclusive jurisdiction to determine paternity actions is correct. However, she has misconstrued the plain purpose and intent of the paternity statute. The purpose of the Uniform Paternity Act was designed to give the mother a remedy to compel the putative father to contribute to the support of his illegitimate child. The statute also provides a device affording both the father and mother the right to acknowledge paternity. The statute does not afford the father the right to come into court to have his paternity determined.

The circuit court is vested with exclusive jurisdiction to determine matters relating to custody. KRS 403.280. The Uniform Paternity Act is a horse of another color. It places exclusive jurisdiction of paternity actions in the county juvenile court. KRS 406.021. There is no conflict in these statutes. As to this case these statutes are separate and distinct — as far as the east is from the west, both in purpose and intent. Thus, the Uniform Paternity Act has no application here. When Charles filed his petition for custody of Michelle he publicly declared that he was her father. The Supreme Court of the United States has held that equal protection requires that unwed fathers be given custody rights identical to those granted to married fathers. See Stanley v. Ill., 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Recently, this court held that an unwed father has a constitutional right of visitation even against the mother’s wishes. Phillips v. Horlander, Ky., 535 S.W.2d 72 (1975). In light of the principles stated in Stanley and Horlander, supra, the next logical step is to conclude that a biological father of a child born out of wedlock has the right to petition and obtain custody of his child if he is suited to the trust, and if such is in the best interest of the child.

This court is of the opinion that to force a putative father to go through the formality of a paternity action would be an exercise in futility. So long as a father can produce reliable evidence that he is the father and is not a stranger to the child, and that the best interest of the child would result, the putative father may petition the circuit court for custody. He doesn’t have to proceed through the rocky shoals of a juvenile court.

In this case the Domestic Relations Commissioner heard the evidence. He concluded that Charles was Michelle’s father and so recommended to the trial court. When Ida Mae filed exceptions to the commissioner’s report the trial court conducted an extensive evidentiary hearing on the exceptions.

It is clear that the trial court had his hour at Gethsemane concerning the matter. His findings of fact and conclusions dictated into the record indicate such. The trial court’s finding that Charles Sweat is the natural father is supported by substantial evidence. The trial court’s dilemma was that although he did not question Charles’ paternity of the child, he concluded that Charles had no legal standing to assert it. The trial court was under the mistaken impression that the Uniform Paternity Act should have been complied with. Like the angel that wrestled Jacob, the trial court wrestled with this vexatious problem. In dictating his findings into the record he said:

“I would say this, now, I assume this will be appealed. If it is, let the Court of Appeals wallow with it as badly as I had to here . . . I do feel that Charles is the father of the child. It may be healthy for the child to know and identify with him, whether she lives in his household or not. . . .”

This court is of the opinion that the trial court had jurisdiction to determine custody in this matter. Because the trial court found that Charles was the father and a fit and proper person to have custody, he should have granted custody of the child to him.

The judgment is reversed. The trial court is directed to set aside the judgment of dismissal. He is further directed to enter judgment granting Charles P. Sweat permanent custody of his infant daughter.

All concur.

      . During the proceedings substantial evidence was offered to prove that Charles Sweat was the father of Michelle, and that he was the proper person to have her custody. From a review of the evidence the trial court concluded that Charles is indeed the father of Michelle and that he is qualified to have custody.

      . A person “substantially contributing to the support of the child” could well be the putative father.


author: STEPHENSON, Justice.

text:
    Jo Lynn FREEMAN, Appellant, v. William Jerry FREEMAN, Appellee.
    Supreme Court of Kentucky.
    Jan. 14, 1977.
    Rehearing Denied April 1, 1977.

      Frank G. Gilliam, Bradford R. Dennis, Gilliam, Buster & Dennis, Lexington, for appellant.
    James Richard Smith, Dayton, Todd, Walter & Cox, Lexington, for appellee.
   STEPHENSON, Justice.

This appeal illustrates some of the problems encountered by a trial court dealing with a custody proceeding involving an “interstate child.” If nothing else, the circumstances here reveal the intolerable state of affairs resulting from ignoring the orderly processes of law. We are of the opinion the trial court acted properly and affirm the judgment giving full faith and credit to the orders of the Florida court granting custody of the infant child of the parties to the father.

The appellant-mother and the appellee-father, we infer from the record, were married in the state of Florida; and the infant child, the subject of this controversy, was born in the state of Florida. In June 1975, the mother and father were divorced by a judgment of the circuit court of Palm Beach County, Florida. By the terms of the judgment, the mother was granted custody of the infant child, Elizabeth Candace Freeman. The judgment provided for visitation rights to the father from Friday night to Sunday on alternate weekends and for Sunday on the other weekend.

It is apparent from the record that subsequent to the divorce proceedings, the parties’ relationship was stormy. The mother has many complaints concerning the conduct of the father including the expressed fear that the father would, on one of the visitation weekends, spirit the child out of the country to Australia or to places unknown. According to the mother, the father made this threat on more than one occasion.

The mother then proceeded to take steps to remedy the situation. Without any notice to the father or to the circuit court of Palm Beach County, the mother with the child departed from the state of Florida and arrived in Lexington, Kentucky, March 7, 1976, with the intention of establishing her domicile and residence in that city. The mother tells us that there was no contact with the father and that he did not request any visitation between the date of the move to Kentucky and the latter part of June 1976. The father’s story seems eminently reasonable to us. He says that after the mother and the child moved from Florida he did not know their whereabouts and spent considerable time and funds locating them. Finally, on June 21, 1976, he located them by telephoning the mother’s sister and her mother, who had moved back to Lexington from Florida in December 1975. The father informed them that he intended to be in Lexington on the July 4 weekend and expected to see his daughter who he learned had been enrolled by the mother in a Day Care Center in Lexington as Candy Wickes. About the 30th of June, the mother called the father and informed him that family plans had been made for July 4 and he could not have the daughter visit with him for the weekend, but some arrangement could be made for a visit with the child.

The father then, after notice and motion to compel visitation set for July 2, 1976, procured an order from the circuit court of Palm Beach County, Florida, directing the mother to deliver the daughter to the father for visitation from July 2,1976, to July 5,1976. The mother denies receiving notice of the hearing.

Armed with this order, the father proceeded to Lexington to visit with his daughter. On arrival he requested a deputy sheriff to accompany him. He and the deputy proceeded to the residence of the grandmother where the deputy alighted from the car and approached the house. Thereupon, according to the deputy and the father, the grandmother and two men, all intoxicated, told them to “get the hell out of here” and other threatening remarks. The father then got back into the car and the deputy went to the door and gave the order of the Florida court to the mother, who advised him she would not let the father have the child. Then after saying she would call her attorney, she reappeared and informed the deputy that she did not consider the order valid in Kentucky. The deputy and the father then retired from the scene, the father back to Florida where a hearing was held in the Florida court on the father’s motion for contempt and for temporary custody. On August 5, 1976, the Florida court entered an order holding the mother in contempt and granting temporary custody to the father. The scene now shifts back to Lexington where the father filed in the Fayette Circuit Court a petition for writ of habeas corpus and temporary custody based upon the August 5 order of the Florida court. On August 13, 1976, the trial court entered an order giving full faith and credit to the order of the Florida court and awarding custody of the infant to the father. This order was held in abeyance pending a hearing on the merits requested by the mother. The father then filed an amended complaint styled “Petition for Possession of Elizabeth Candace Freeman,” which we construe to be an equitable proceeding.

After hearing testimony by the parties, essentially the same as recounted here, the trial court on September 2,1976, entered an order finding that the Fayette Circuit Court did not have jurisdiction to determine custody, reciting that the proper jurisdiction lies with the Florida court and further ordering the August 13, 1976, order held in abeyance until September 2, 1976, giving the mother an opportunity to resubmit herself to the jurisdiction of the Florida court by filing a motion to be heard in the Florida court, otherwise, the August 13, 1976, order be held in full force and effect.

The scene now shifts back to Florida. The mother filed motion in the circuit court of Palm Beach County to set aside the order of contempt. After a hearing, the Florida court on September 30, 1976, adjudged the mother in contempt of the court’s orders of October 22, 1975, July 2, 1976, and August 5, 1976, for not providing reasonable visitation to the father. The Florida court further ordered the mother to deliver the infant child to Palm Beach County, Florida, by October 7,1976, so that the father would be afforded his visitation rights. The order further provided that should the mother fail to comply, then permanent custody of the infant would be granted to the father.

On October 13, 1976, the Florida court being informed that the mother had not complied with the order of September 30, 1976, entered an order awarding permanent custody of the child to the father.

As to be expected, the father next filed motion, with the Florida court orders attached, in the Fayette Circuit Court for an order giving full faith and credit to the orders of the Florida court. Then, what do our wondering eyes see but a response by the mother informing the trial court that in an action for custody filed by the mother and assigned to another division of the Fa-yette Circuit Court, the other division has assumed jurisdiction of the minor child and entered an order granting temporary custody to the mother. Curiously enough, this action was filed on October 7, 1976, the petition for custody rehashing all the facts heard by the trial court and reciting that the appearance before the Florida court did not resolve any issues, although it appears to us that the issue was resolved. There is a further pious recitation that the mother will cooperate with the court on any orders for visitation. It occurs to us that lack of obedience to orders for visitation on the part of the mother is the cause of this bizarre situation.

Not much impressed by this collateral action, the trial court entered an order on November 8, 1976, giving full faith and credit to the orders of the Florida court and awarding the custody of the child to the father.

This chain of events was commenced when the mother, fearful that the father would take the child to places unknown, decided to do just exactly what she feared the father would do. Some indication of the mother’s attitude is revealed by her action in putting the child in a Day Care Center under an assumed name.

The situation might still have stabilized if the mother had possessed the good judgment to cooperate with the father’s visitation request on July 4. From that point, it is difficult to find any reasonable basis for her actions in attempting to deny for all practical purposes the father’s right to visit with his daughter. After failing to convince the Florida court of her position, the filing of a separate action for custody illustrates “shopping for a friendly forum” rampant.

It is an intolerable state of affairs where self-help and the rule of “seize and run” prevail rather than the orderly processes of law. Until the adoption in this Commonwealth of the Uniform Marriage and Divorce Act, KRS Chapter 403, with particular reference to KRS 403.260, Custody, we had no firm guidelines for determining jurisdiction in child custody proceedings or for the purpose of recognizing and giving effect to the orders of courts of other jurisdictions involving the custody of children. The philosophy of the Act is to stabilize and bring some semblance of order into the determination of child custody proceedings, thereby reducing jurisdictional conflict between the various states. We are of the opinion that according to the provisions of the Act, the Florida court has jurisdiction of custody in this case.

We are of the further opinion the trial court acted properly in giving full faith and credit to the orders of the Florida court. Any other disposition by the trial court would have the effect of rewarding the mother for ignoring and attempting to circumvent valid court orders.

Finally, although we are loath to comment in the nature of an advisory opinion, we are faced with a peculiar situation; that is, the mother’s obtaining a temporary order of custody in a separate action in another division of the Fayette Circuit Court.

We are of the opinion the order for temporary custody obtained by the mother is a nullity in the circumstances presented here, and in order that it not be a source of further complications in this already complex situation, we direct the trial court to give prompt effect to the order entered here and to promptly enter appropriate orders should there be any attempt to use the temporary order of custody obtained by the mother to effect any further delay or hindrance in this case.

We cannot see in this proceeding for temporary custody any conformity to the provisions of KRS 403.260. We note that the 1976 General Assembly by amendment to KRS 403.260 deleted the provisions which in the absence of the extraordinary circumstance provided for requires a period of six months to confer jurisdiction as the child’s “home state.” KRS 403.260 otherwise remains as enacted in 1972. We are of the opinion the philosophy of the Act necessitates some period of time before this state becomes the “home state” of the child. Without some time period, the rest of the Act does not make sense. We are not advised whether the General Assembly deemed the six-months period too short or too long. In order to give effect to the Act, we feel that it will be incumbent upon this court in an appropriate case to fill the vacuum and construe the time period necessary to give effect to the spirit of KRS 403.260.

For the purposes of our comment on the mother’s temporary custody order, we observe that the child and the mother have no significant connection with this state other than the period of time the child was secreted here from the father and before the father commenced his action in court. We do not regard a period of time in this state where a child is hidden from the other parent as having any effect on giving the child a “home state” status.

Our observation is that the “best interest” of the child has been lost in the thicket of the wishes of the parents here. We can only hope both parents will refrain from “self-help” in the future and rely on the courts to determine what the parents cannot. The alternative to an orderly judicial process is chaos. Admittedly the system is not perfect; however, it is far better than a series of hide-and-seek situations which are detrimental to the well being of any child.

The judgment is affirmed.

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

All concur.

      . Florida Statutes, Chapter 61, Dissolution of Marriage, § 61.13 provides in part:
      “(2)(a) In any proceeding under this chapter, the court shall have jurisdiction to determine custody, notwithstanding that the child or children are not physically present within this state at the time of filing any proceeding under this chapter, if it shall appear to the court that the child or children were removed from this state for the primary purpose of removing the said child or children from the jurisdiction of the court in an attempt to avoid a determination of custody.
      “(b) The court shall award custody and visitation rights of minor children of the parties as a part of proceeding for dissolution of marriage in accordance with the best interests of the child. Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody.
      “(3) For purpose of custody, the best interest of the child shall be determined by the court’s consideration and evaluation of all factors affecting the best, welfare and interests of the child, including, but not limited to:
      “(a) The love, affection, and other emotional ties existing between the parents and the child.
      “(b) The capacity and disposition of the parents to give the child, love, affection, and guidance and to continue the educating of the child.
      “(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
      “(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
      “(e) The permanence, as a family unit, of the existing or proposed custodial home.
      “(f) The moral fitness of the parents.
      “(g) The mental and physical health of the parents.
      “(h) The home, school, and community record of the child.
      “(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
      “(j) Any other factor considered by the court to be relevant to a particular child custody dispute.
      “(4) In any proceeding under this chapter, the court, at any stage of the proceeding and after final judgment, may make such orders about what security is to be given for the care, custody, and support of the minor children of the marriage as from the circumstances of the parties and the nature of the case is equitable.”


author: PALMORE, Justice.

text:
    James R. YOCOM, Commissioner of Labor, etc., Appellant, v. David SPALDING et al., Appellees. David SPALDING, Appellant, v. STIMPSON SCALE COMPANY et al., Appellees.
    Supreme Court of Kentucky.
    Jan. 14, 1977.
    Rehearing Denied April 1, 1977.

      Robert L. Catlett, Jr., Segal, Isenberg, Sales, Stewart & Nutt, Louisville, Timothy P. O’Mara, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellants.
    William D. Grubbs, Will H. Fulton, Woodward, Hobson & Fulton, Louisville, for appellees.
   PALMORE, Justice.

The appellant David Spalding claims workmen’s compensation benefits by reason of an injury to one of his eyes. The board found him totally disabled, 90% from the accident and 10% from a pre-existing congenital condition, and made an award on the basis of the 90% portion against the employer alone, absolving the Special Fund. The employer appealed to the circuit court, which remanded the proceeding to the board with directions to make a new award against the employer “not to exceed eleven percent (11%) of the appropriate scheduled benefit and an award against the Special Fund in an amount not to exceed twenty-five percent (25%) permanent partial disability as a result of the pre-existing condition,” citing KRS 342.120(l)(a). The claimant and the Special Fund thereupon appealed to this court.

At the time of the accident, September 28, 1973, Spalding was 22 years old and lacked a half credit of finishing high school at Springfield, Kentucky. He had left Springfield and found employment in Louisville with the appellee, Stimpson Scale Company, as a “grinder polisher and production worker.” While he was using a hand file to smooth the spokes of a metal ring a small piece of metal got into his left eye. Three days later he was seen by Dr. Daniel W. Burke, an ophthalmologist, who observed “a foreign body and a rust stain secondary to the foreign body deeply embedded in his cornea.” Dr. Burke began at once to remove this foreign material from the eye but deferred completing the job until the next day because he “was getting quite deep into the cornea.” He finished removing the rust on the next day and saw the patient again on each of the next three days and on several occasions thereafter. It was the doctor’s opinion that the wound healed normally but left a scar, “a little pit or little indentation in the clear part of the eye.” Nevertheless, Spalding complained of one thing and then another. At first he continued to have the sensation of a foreign body in the eye, then he complained of glare and headaches, and after the employer had transferred him to its shipping department he found that he had to use a magnifying glass in order to read numbers on the scales and charts. He says that when he tries to read for any length of time without glasses his eyes begin to burn and water.

We come now to the complicating factor in the case. It appears that from birth the claimant’s eyes did not focus properly, which condition, left untended, resulted in his right eye’s becoming what is called a “lazy eye,” in that it became permanently useless except to distinguish light from dark. Hence for practical purposes he had only one serviceable eye, the left eye. That eye, the good one, had not been tested recently for visual acuity prior to the injury, though Spalding himself testified that his vision had been perfect and that he had never worn glasses. After the corneal wound had healed Dr. Burke found the visual acuity of the left eye, without glasses, to be 20/40, whereupon he fitted the eye with a corrective contact lens but later switched to ordinary spectacles when it appeared that the patient could not or would not tolerate the contact lens. At the last visit Dr. Burke found the visual acuity of the left eye to be 20/50 without and 20/40 with glasses. Using the glasses Spalding can read newspapers and was able to do the work in Stimpson’s shipping department.

Spalding was laid off on May 31, 1974, when a strike at a supplier’s plant resulted in a shortage of necessary materials in Stimpson’s manufacturing operation. He found other employment with an office supply firm, but was assigned to relatively menial work at a salary of $2.50 per hour as compared with the $3.50 per hour he had been earning at Stimpson.

In assessing percentage of disability Dr. Burke resorted to a chart that classifies physical impairment according to visual loss. He said that the loss of or absence of vision in one eye represents a 30% impairment in over-all visual efficiency and that 20/50 vision in one eye is 25% less than the visual efficiency of a 20/20 eye. According to the chart, and on the premise that Spald-ing had a visual efficiency of 70% before the accident and suffered a 25% loss of vision in the left eye by reason of the injury, he now has a visual efficiency of 59%, or 11% less than he had immediately prior to the accident. This evidently was the basis for the circuit court’s order that the award against Stimpson be limited to 11% partial disability. It is to be noted, however, that Dr. Burke neither sought nor was asked to translate this functional impairment in terms of occupational disability. Hence the trial court’s action in that respect was erroneous.

Dr. Sheldon B. Schiller, another qualified ophthalmologist, examined Spalding on May 3,1974, pursuant to an appointment by the board and was the only other medical witness. Upon initial examination through the reading of letters on a chart from a distance of 20 feet, the vision in Spalding’s left eye appeared to be 20/70, but after the pupil had been dilated it was 20/25, or virtually normal. In explanation, Dr. Schiller testified that there ought not to be a difference, but that the test given after dilation is the more objective, because the patient is looking through a machine and does not know which line he is reading or attempting to read, whereas in the simple reading test from 20 feet he may have “just read a line that he casually felt that he should read before we put the drops in, or by design, he was trying to give me a line that was worse than he could read.” Dr. Schiller observed the small corneal scar in the left eye but regarded it as “insignificant with relation to his vision. There’s no way that spot could cause a loss of vision. It’s like having a mosquito on your windshield . ... This spot would have nothing to do with the field of vision. It’s like putting a speck on your glasses, really, and you may not even find the speck if you put it on your classes. The speck is in the corner and only a few millimeters from your cornea. That spot is not going to cause him any loss of vision or going to cause any loss of field.”

Dr. Schiller was of the further opinion that the absence of vision in one eye represents a 25% functional loss to the body as a whole but is not occupationally disabling “unless you find some unusual occupation that would require specifically binocular vision; and a laboring type of job should not offer the least bit of problem.”

So there we have it. Obviously there was no reasonable basis for the board’s finding that Spalding is 100% occupationally disabled. Though it has broad leeway within the province of factfinding to translate functional into occupational disability, that authority is not unlimited. By no stretch of the imagination can it be said that this man, who continues to be regularly employed, is totally disabled. Cf. Winn Dixie Louisville, Inc. v. Watson, Ky., 473 S.W.2d 148 (1971). To the extent, therefore, that the order of the circuit court remanded the matter to the board for reassessment of the degree of partial disability it was entirely justified.

On the other hand, we perceive no good reason for requiring the board to reconsider the degree of disability pre-exist-ing the injury. Dr. Burke expressed the opinion that the useless right eye represented a functional impairment of 30%, though he did not undertake to say whether and to what extent that deficiency was occupationally disabling. Dr. Schiller estimated the functional impairment at 25% but regarded it as occupationally nondisabling. There being an admitted functional impairment, the board was required to assign to it some percentage of occupational disability. Griffin v. Booth Memorial Hospital, Ky., 490 S.W.2d 736, 737 (1973). We find no fault in its having fixed it at 10%.

When a person who already has a permanent functional impairment, whatever may be its origin, suffers a compensable injury, in that the injury itself causes some degree of occupational disability, KRS 342.-120 requires an apportionment. The percentage of occupational disability pre-exist-ing the injury is noncompensable. KRS 342.120(4). In this case the board has fixed that figure at 10%. The employer’s liability is limited to the percentage of occupational disability that would have resulted from the injury alone had there been no pre-existing functional impairment. KRS 342.120(3). The board failed to determine that figure, so upon remand of the proceeding it must do so. The Special Fund is liable for the percentage of disability in excess of the portion that is noncompensable and the portion for which the employer is liable. KRS 342.120(3) and (4); Young v. Campbell, Ky., 459 S.W.2d 781, 785 (1970); Young v. Young, Ky., 460 S.W.2d 832, 836 (1970); Young v. Fulkerson, Ky., 463 S.W.2d 118, 120 (1971).

The instance in which a pre-existing functional impairment consists of a lost or useless eye presents a classical example of liability on the part of the Special Fund. Although the Fund cannot be charged with the degree of disability existing prior to the injury, any disabling injury to or loss of the remaining eye is bound to result in greater disability than would be the case if the injured party had two useful eyes. For example, we see in this case that the absence of one eye is equated by the doctors with a 25% to 30% functional impairment, and even less from an occupational standpoint. That assessment assumes, of course, the existence of another good eye. Obviously, however, loss of the remaining eye would leave the injured party totally disabled, and the resulting 100% disability would far exceed the sum of the pre-exist-ing disability and the portion to which the employer’s liability is limited. For this excess the statute places liability on the Special Fund.

The board erred not only in finding total disability, but also in failing to apportion the allowable compensation between the employer and the Special Fund. Upon remand it should be directed (1) to reconsider and redetermine the degree of occupational disability attributable to a combination of the pre-existing physical disability and the injury, (2) to determine the degree of permanent occupational disability that would have resulted from the injury to the left eye had there been nothing wrong with right eye, (3) to assess liability against the employer for the portion fixed in step (2), and (4) to assess liability against the Special Fund for the total percentage of permanent disability determined in step (1) minus the percentage determined in step (2) and the 10% heretofore determined as pre-existing disability.

One thing more needs to be said. Both of the physicians who testified in this case evidently are competent and reputable specialists. Dr. Burke was not interrogated as to how the slight scarring in the cornea of the eye could have impaired the vision to the extent of a 25% loss in that eye. Nor was he recalled for further explanatory testimony after Dr. Schiller had testified.

We are simply confounded that such a contradiction over the effect of a simple, uncomplicated injury should be left in the record unpursued and unexplained. It is almost as if one doctor said the claimant lost a leg and the other found it still there. There has to be a better way to find the truth than to leave it at that. In future instances of the kind, if the lawyers do not have the time or gumption to dust out the cobwebs the board of its own initiative should call in further medical evidence.

The judgment is affirmed in part and reversed in part with directions that the cause be remanded to the Workmen’s Compensation Board for further proceedings consistent with this opinion.

All concur.

      . Presumably the doctor meant the surface of the cornea.

      . Sometimes called an “active” disability to distinguish it from a latent or “dormant” condition which, of itself, has not thus far created any physical impairment in terms of his ability to work.