author: MOORE, Justice.

text:
    Walter H. RANKIN et al., Appellants, v. Ray CARPENTER d/b/a Able Demolishing Company, Appellee.
    No. 1135.
    Court of Civil Appeals of Texas, Tyler.
    June 22, 1978.
    Rehearing Denied July 20, 1978.

      Charles G. Lowry, Lowry, Pruett & McCarty, Houston, Billy E. Lee, Asst. County Atty., Houston, for appellants.
    Nick Kelsey, Houston, for appellee.
   MOORE, Justice.

This is an appeal from a judgment setting aside an execution sale. Plaintiff, Ray Carpenter, instituted suit to set aside the sale of a Caterpillar front-end loader sold under an execution sale by defendant, Walter H. Rankin, Constable of Precinct 1 of Harris County, Texas. Also named in the suit as defendants were David Cahoon, the purchaser at the execution sale and L. G. Cahoon, a subsequent purchaser from David Cahoon. Plaintiff alleged that the sale was void because of certain irregularities in connection with the posting of notice of the sale as a result of which the machine was sold at a grossly inadequate price. Each of the defendants answered with a general denial. Defendants, David Cahoon and L. G. Cahoon, prayed that in the event the sale be set aside they be awarded reimbursement for the funds expended by them in repairing the machine after having purchased same. Trial was before the court, sitting without a jury, at the conclusion of which the trial court rendered judgment in favor of the plaintiff setting aside the sale and ordering that the machine be resold at another execution sale. The court further ordered that out of the proceeds of the subsequent sale defendant, David Cahoon, was to receive the sum of $631.77. From this judgment and ruling the defendants perfected this appeal.

We affirm.

Appellant Rankin, in a separate brief, seeks a reversal on the ground that the 125th District Court of Harris County had no jurisdiction to set aside the execution sale issuing out of a judgment rendered by the 157th District Court of that county.

The record shows that the execution was issued on the basis of a judgment entered by the 157th District Court of Harris County on August 29,1974, in a suit styled Jerry Don Evrage v. Ray Carpenter. Pursuant to a writ of execution issued out of that court, Constable Rankin levied on the machine in question on February 12, 1976, and sold the same at an execution sale on February 24, 1976, to appellant, David Cahoon. Shortly thereafter, appellee Carpenter filed suit to set aside the sale and ancillary thereto sought an injunction pendente lite to prevent appellant, David Cahoon, from removing, operating and selling the machine. The case was assigned to the 133rd District Court of Harris County where an order was entered granting Carpenter’s application for a temporary injunction. The case eventually found its way to the 125th District Court of Harris County where judgment was entered setting aside the execution sale. The judgment recites that all parties appeared and participated in the trial.

Appellant Rankin, in his first point of error, contends that the 125th District Court lacked jurisdiction' to set aside the execution sale ordered by the 157th District Court in the original 1974 judgment.

An action in equity to set aside an execution sale must be brought in the court out of which the writ issued. Ross v. Brown, 491 S.W.2d 690 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); Bender v. Damon, 72 Tex. 92, 9 S.W. 747 (1888). Once jurisdiction has attached in the proper court, however, the cause may be transferred to another court for trial. Outlaw v. Noland, 506 S.W.2d 734 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ history); Boyles v. Cohen, 230 S.W.2d 604 (Tex.Civ.App.—Galveston 1950, writ ref’d n. r. e.). The District Courts of Harris County have concurrent jurisdiction in all civil cases. Tex.Rev.Civ. Stat.Ann. art. 199 (11th Dist.). The judges are authorized to exchange benches and any one of them may in his own courtroom try and determine any civil case or proceeding pending in another court without having the case transferred. Rule 330, Tex.R. Civ.P.

The record reflects that the present suit to set aside the execution sale was initially filed in the 157th District Court, the court which rendered the original judgment ordering the sale. Therefore, jurisdiction attached in the proper court. The record further reflects that on March 24,1976, the 157th District Court issued an order setting a hearing on the temporary injunction facet of the cause for trial in the 133rd District Court. Though there is no evidence in the record that the cause was subsequently transferred to the 125th District Court, it must be presumed that the officials in charge of transferring cases in Harris County properly performed their duties and transferred the cause to such court. Thus, there is no merit to appellant’s contention that the 125th District Court lacked jurisdiction to hear the cause.

In any event, procedural errors not adversely affecting the interest of the public generally and those made in cases where the record shows that the court had jurisdiction of the subject matter are not held to constitute fundamental error. 3 Tex.Jur.2d Appeal & Error—Civil Cases sec. 102; Denbo v. Butler, 523 S.W.2d 458 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ history).

It cannot be successfully argued that the 125th District Court was without power to act on the subject matter of this suit, nor can it be successfully argued that the subject matter of the suit affects the public generally. Thus, the error complained of cannot be classified as a fundamental error. Had appellant desired to challenge the jurisdiction of the court, he should have made a motion to that effect and obtained a ruling thereon. In the absence of any complaint in the trial court, appellant will not be heard to complain for the first time on appeal. Rankin’s first point is overruled.

Next, appellant Rankin seeks a reversal on the ground that the appellee, Carpenter, failed to pay into the registry of the court the amount due and owing on the judgment made the basis of the execution sale. Appellant takes the position that the deposit was a prerequisite to the relief sought and in the absence of such tender the trial court erred in setting aside the sale. The law is that where a sale is set aside due to a grossly inadequate price coupled with irregularities which contributed to the inadequate price, the debtor is not required to tender or pay the amount due and owing on the judgment as a prerequisite to the relief sought. Guy v. Edmund-son, 135 S.W. 615, 619 (Tex.Civ.App.1911, writ ref.). As hereinafter explained, we have concluded that the sale in question should be set aside due to a grossly inadequate price coupled with irregularities which contributed to the inadequate price. Therefore, appellee Carpenter was under no duty to tender the amount due and owing on the judgment as a prerequisite to obtaining the relief sought. The point is overruled.

Before discussing the merits of the points of error brought forward by appellants, David Cahoon and L. G. Cahoon, we deem it appropriate to quote the findings of fact and conclusions of law filed by the trial judge, which are as follows:

“FINDINGS OF FACT: (I) David Ca-hoon hauled the tractor, a 955K Caterpillar front end loader, from the place of levy to the place of storage, a fenced lot in his control, pending the sale. Although notice of the sale was sent to him by members of Constable Rankin’s office for posting prior to the auction of the tractor, he wholly failed to do so. Notice was never posted at the place of sale by anyone in a conspicuous manner so as to give public notice of the sale.
(II) On February 24, 1976, deputy Frank Davis of Constable Rankin’s office conducted an auction at which David Cahoon was the only bidder. He bid and subsequently paid the sum of $500.00 for the 955 K Caterpillar front end loader owned by Ray Carpenter.
(III) At the time of the levy, the 955 K Caterpillar front end loader owned by Ray Carpenter had the value of $15,-000.00.
“CONCLUSIONS OF LAW: (I) The purchase at auction of the 955 K Caterpillar front end loader for $500.00 by David Cahoon was the payment of a grossly inadequate price. (II) David Cahoon as the person who stored the 955 K and who received notice of the time and place of sale, had special knowledge of the condition of the tractor and of the facts relating to the sale. Coupled with the fact of his failure to post notice of the sale in accordance with Rule 650, Texas Rules of Civil Procedure and his participation in the bidding at the sale, an irregularity occurred in the conduct of the sale. (Ill) Notice not having been properly posted in accordance with Rule 650, Texas Rules of Civil Procedure by any other person at the place of the sale, an irregularity occurred. (IY) Coupled with the grossly inadequate price for which the 955 K tractor was sold, the irregularities require that the sale be set aside.”

Appellants, David Cahoon and L. G. Ca-hoon, seek a reversal through six points of error. By points one through five appellants contend that there is no evidence to support the court’s finding that notice was not posted at the place of sale, and further that there is no evidence to support the court’s finding that the $500 paid by David Cahoon at the execution sale was grossly inadequate.

Rule 650, Tex.R.Civ.P., provides as follows:

“Previous notice of the time and place of the sale of any personal property levied on under execution shall be given by posting notice thereof for ten days successively immediately prior to the day of sale at the courthouse door of any county and at the place where the sale is to be made.”

An execution sale will be set aside upon proof that it was made for a grossly inadequate price and was accompanied by irregularities which tended to contribute to the inadequacy of price. 24 Tex.Jur.2d Executions secs. 137-38, pp. 608-10 and cases there cited; Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Collum v. DeLoughter, 535 S.W.2d 390 (Tex.Civ.App.—Texarkana 1976, writ ref’d n. r. e.).

In considering appellants’ “no evidence” points, we are required to review the evidence in its most favorable light in support of the court’s findings, considering only the evidence and inferences which support the court’s findings and rejecting the evidence and inferences contrary to that finding. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.1974).

When viewed in a light most favorable to the judgment, we think there is evidence of sufficient probative force to support the finding that notice of the sale was not properly posted at the place where the sale was to be made. The record shows that the constable levied on the machine on February 12, 1976. Immediately thereafter he employed appellant, David Cahoon, to take possession of the machine and remove it to his place of business and to hold the same until the date of the sale. Cahoon took the machine and moved it to his premises situated at 206 W. Tidwell Street in Houston. While the front portion of his premises was situated on Tidwell Street and was unfenced, the rear portion thereof was under fence. He placed the machine on the fenced portion of his lot at a point more than 100 feet from Tidwell Street.

Janet Pantel, who was the secretary in Constable Rankin’s office, testified that she handled the notices of sale and that she was the only employee in the office charged with that responsibility. She testified that, as a normal procedure, she sent a notice of sale to the person who was holding the property on behalf of the Constable, and that the purpose in sending the notice to the person in possession of the property was so that person could post the notice at the place where the sale was to be made. Deputy Constable Kendricks testified that the details of handling the notices of sales were left to the secretary. Ms. Pantel testified that she sent the notice of sale in this instance to David Cahoon, the party who was holding the machine for the Constable. David Cahoon testified that he received the notice and placed the same in his desk drawer and did not post it. He further testified that he never saw a notice of sale posted on the machine or anywhere else around his place of business prior to the time of the sale. Appellant, L. G. Cahoon, testified that he saw a piece of paper on the machine in question but never read it. Deputy Constable Davis testified that at the time of the sale he found a notice of sale posted on the machine and checked the number thereon to make sure it corresponded with his records. He acknowledged that the notice of sale could not be seen and read by a person on Tidwell Street. No witness testified as to having posted the notice on the machine and no witness testified as to having seen anyone post a notice on the machine. The sale was conducted by Deputy Constable Davis on February 24, 1976, and the machine was purchased by David Cahoon, the only bidder, for the sum of $500.00. At most, the evidence as to whether a notice of sale was ever properly posted at the place where the sale was to be made is conflicting.

Where a case is submitted to the court without a jury, the trial judge acts as the trier of the facts and stands in the same position as the jury, being the sole judge of the credibility of the witnesses and the weight to be given their testimony. Where the findings made by the court are supported by any evidence of probative force, they must be sustained on appeal. McWhorter v. City of Winnsboro, 525 S.W.2d 701 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.); 4 McDonald, Texas Civil Practice sec. 16.10(b), p. 29 (1971). There being some evidence of probative force to sustain the trial court’s finding that the notice had not been properly posted, such finding may not be disturbed on appeal.

We are likewise of the opinion that there is ample evidence of probative force to support the trial court’s finding that the sale was made for a grossly inadequate price. The evidence shows that the appellee, Carpenter, purchased the machine in question on January 5, 1973, for the sum of $20,-303.00. At the time of the levy he was using the machine in his business. According to testimony of the expert witnesses called by the appellee, the machine had a value of between $15,000 and $19,000 at the time of the sale. Appellants adduced testimony showing that it had a value of between $2,000 and $4,000.

Where the evidence, as here, is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, the judgment will not be disturbed on appeal. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). There being ample evidence that the sum of $500 was a grossly inadequate price, the finding of the trial court must be sustained.

It must be presumed, in support of the judgment, that the irregularities found by the court were calculated to and did contribute to the inadequacy of the price received at the sale. McLean v. Stith, 50 Tex.Civ.App. 323, 112 S.W. 355, 363 (1908, writ ref’d); Prudential Corp. v. Bazaman, 512 S.W.2d 85, 90 (Tex.Civ.App.—Corpus Christi 1974, no writ history); Collum v. DeLoughter, supra at 393; Rule 299, Tex.R. Civ.P. In our view the judgment vacating the sale is supported by the evidence and therefore points one through five are overruled.

Under the sixth point, appellant, David Cahoon, contends that the court erred in limiting a judgment for restitution in his favor to the sum of only $631.77, because the undisputed testimony shows that, in addition to the $500 which he paid for the machine at the execution sale, he expended $3,897.88 for parts and $1,300 for labor in repairing the machine.

Other than for the finding that David Cahoon purchased the machine at the execution sale for the sum of $500, the findings of fact do not mention or allude to appellant’s claim for restitution. There are no findings showing that appellant made any repairs on the machine nor that he was entitled to restitution in any amount. While he requested findings of fact and conclusions of law he made no request for any additional findings with regard to his claim for restitution for making repairs. His failure to request additional findings with regard to his claim for repairs effects a waiver of such ground of recovery, no element of which had been found by the court. Rule 299, Tex.R.Civ.P.; McKenzie v. Carte, 385 S.W.2d 520, 529 (Tex.Civ.App.— Corpus Christi 1964, writ ref’d n. r. e.); Jack Ritter Inc. Oil Company v. Fred Bandas & Sons, Inc., 387 S.W.2d 70 (Tex.Civ.App.—Austin 1965, no writ history); 4 McDonald, Texas Civil Practice sec. 16.09. Rule 299 specifically provides that the judgment may not be supported on appeal by a presumption of finding upon any ground of recovery, no element of which has been found by the trial court. Not having requested or obtained any findings to support his claim for reimbursement for repairs, appellant is in no position to complain of the judgment.

Apparently, the trial court, awarded appellant the sum of $500 as restitution for the amount expended by him in purchasing the machine at the execution sale, and awarded him the remaining $131.77 for repairs. Since appellee has not challenged the judgment and confesses in his brief that “the court ruled correctly in awarding to David Cahoon $631.77,” the judgment awarding appellant restitution for such amount will not be disturbed.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    J. H. MEADORS, Appellant, v. Doris BARNHOUSE et al., Appellees.
    No. 5892.
    Court of Civil Appeals of Texas, Waco.
    June 22, 1978.
    Rehearing Denied July 20, 1978.
    Robert J. Pandak (on appeal only), Cam-mack, Harrison, Coman, Burns & Pandak, Pasadena, for appellant.

      John B. Faulkner, Waco, for appellees.
   HALL, Justice.

This appeal is from an order denying appellant relief by bill of review. We affirm the order.

On August 20,1975, appellees Doris Barn-house, J. B. Tarver, Inez Ainsworth, Ellis Andrews, William Meadows, Vida Eastep and Leon Tarver filed suit against Louis R. Goodwin and appellant J. H. Meadors to establish the boundaries of the ten-acre Camp Creek Cemetery, in Robertson County. Meadors and Goodwin owned separate tracts adjoining the cemetery premises. Neither filed an answer in the case. Eventually, a surveyor was appointed by the court, and he made a survey establishing the boundaries of the cemetery. Based upon the survey, judgment was rendered by default against Meadors and Goodwin on November 8, 1975, declaring the boundaries of the ten-acre cemetery by metes and bounds description, and ordering Meadors and Goodwin to surrender title and possession of the cemetery premises and remove any fences placed on the property by them.

Meadors did not learn of the judgment until he was served with writ of possession on January 10, 1977. Thereafter, on March 4,1977, he filed a bill of review to have the judgment set aside and for “general relief.” After a hearing without a jury, judgment was rendered denying Meadors any relief under the bill of review. He perfected this appeal from that order.

To succeed under a bill of review, a litigant against whom default judgment has been rendered must plead and prove: (1) a meritorious defense to the cause of action upon which the judgment was based, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) without any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

To support the necessary element of meritorious defense, Meadors alleged in his petition for bill of review that “he has had the property in question surveyed by a registered professional surveyor and the survey relied upon in the judgment entered against [him] is in conflict; that [he] feels upon a trial of the case the survey he has would be accepted as the correct survey.” The proof supporting those allegations was testimony by Meadors that after learning of the default judgment he had a survey made of the properties in question; that his survey conflicts with the survey upon which the judgment is based; that his survey indicates the other survey misplaces a boundary line; and that his survey does not change the amount of acreage in the cemetery (which he agrees contains ten acres) but “shifts the boundary a little bit” so that less of his property is taken. The surveyor who made Meadors’s survey was not called to testify, nor was any other. The survey was not offered into evidence, and its field notes for the cemetery boundary lines are not a part of the proof.

A bill of review is not to be treated and acted upon as a motion for new trial. Rather, its function and purpose is to proceed to a hearing and determination of the merits of the whole controversy and the rendition of a final judgment in the case. Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723, 725 (1930). Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex.Sup.1974). Accordingly, the decisions of our Supreme Court require that on the hearing of the bill of review the issues relating to the movant’s negligence and his meritorious defense “be tried together so that the court may render a new final judgment.” McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

In Hanks v. Rosser, 378 S.W.2d 31, 33 (Tex.Sup.1964), a bill of review proceeding was recognized as an equitable one designed to prevent manifest injustice. But the Court said that “while manifest injustice to the defaulting party is a material consideration, another is the necessity for there being finality to judgments. The litigating parties are entitled to know when the contest is at an end; and others, including title examiners and purchasers and sellers of land and interests in land have a need for knowledge as to whether or not litigation involving title to land has been finally concluded.”

It is clear that to establish the meritorious defense required for relief under a bill of review the defaulting defendant is required to offer more than a mere belief or conclusion on his part that the judgment is erroneous. Rather, he must prove facts which would support a determination that the judgment was incorrect and upon which a new final judgment could be rendered in his favor. Meadors did not meet that burden in our case. Although he testified that the surveys differ, there was no evidence that his survey was a correct survey and no evidence that the survey upon which the judgment was based was incorrect; and the particulars of any differences between the surveys are not shown in the record. Without such proof, Meadors did not establish a meritorious defense, and a new judgment favoring his contentions could not have been rendered. Relief was properly denied by the court.

Appellant’s remaining complaints are also without merit and are overruled. The judgment is affirmed.


author: JAMES, Justice.

text:
    Linda BIRDOW, Individually and as next friend of Alisicha Birdow, a minor, Appellant, v. TEXAS FARMERS INSURANCE COMPANY, Appellee.
    No. 5878.
    Court of Civil Appeals of Texas, Waco.
    June 22, 1978.
    David K. Line, Lockman & Line, Associates, Dallas, for appellant.
    Webber W. Beall, Jr. and Tom J. Stollen-werck, Touchstone, Bernays & Johnston, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from a summary judgment. Plaintiff-Appellant Linda Birdow, individually and as Next Friend of Alisicha Birdow, brought this suit against Defendant-Appellee Texas Farmers Insurance Company to recover benefits under a Personal Injury Protection endorsement on an automobile liability policy issued by Appel-lee Insurance Company. The trial court granted the Defendant-Appellee’s motion for summary judgment on the ground that the policy in question had expired and was no longer in effect at the time of the accident, from which judgment Plaintiff-Appellant appeals. We affirm.

Appellant’s sole point of error asserts the trial court erred in granting the summary judgment in favor of Defendant-Appellee “because there exists a fact issue as to whether the personal injury protection insurance is a policy of sickness and accident insurance and thereupon subject to the grace period requirements of Article 3.70-3(A)(3) of the Texas Insurance Code.” We overrule this point of error and affirm the trial court’s judgment.

On August 6,1974, the Insurance Company issued to Euriah Birdow a policy of automobile insurance, issued upon assignment from the Texas Automobile Insurance Plan (better known as the Assigned Risk Pool). Euriah Birdow is the husband of Linda Birdow, Plaintiff-Appellant herein. The policy provided that it became effective at 12:01 AM on August 6, 1974 and would expire at 12:01 AM August 6, 1975. On or about June 18, 1975, Appellee Insurance Company mailed an expiration notice to Euriah Birdow explaining to him that the policy in question would expire at 12:01 AM on August 6, 1975, unless he paid the renewal premium fifteen days prior to said date. Euriah Birdow failed to pay the renewal premium at any time prior to the expiration date, or at any time thereafter. Plaintiff-Appellant Linda Birdow brought this suit under the Personal Injury Protection coverage of the policy for personal injuries sustained as a result of an automobile accident which occurred on August 9, 1975. '

Plaintiff-Appellant has not disputed the fact that the policy had expired prior to her accident, but bases her right to recovery solely on the theory that the Personal Injury Protection endorsement is a “policy of accident and sickness insurance” as defined by Article 3.70-l(B)(3) of the Texas Insurance Code and is therefore subject to the ten day grace period mandated by Article 3.70-3(A)(3) of the Texas Insurance Code. We do not agree.

Subchapter G of the Texas Insurance Code, beginning with Article 3.79-1 and ending with Article 3.70-11, inclusive, is entitled “Accident and Sickness Insurance.” Article 3.70-l(B)(3) defines “Policy of accident and sickness insurance” as including “any policy or contract providing insurance against loss resulting from sickness or from bodily injury or death by accident or both.”

Article 3.70-3(A)(3) requires a grace period of ten days to be provided in “Accident and Sickness Policies” for monthly premium policies “for the payment of each premium falling due after the first premium, during which grace period the policy shall continue in force.”

Appellant’s argument is that the personal injury protection endorsement on her automobile insurance policy, being “accident and sickness” insurance coverage, did not expire on August 6,1975, but such coverage continued on for ten more days of the grace period until August 16, 1975. Since Appellant’s accident occurred on August 9, 1975, Appellant reasons that her personal injury protection was in full force and effect at the time of her accident.

Appellant’s argument cannot stand, because the policy in question is expressly excluded by statute from the operation of the grace period provision required by Article 3.70-3(A)(3) of the Texas Insurance Code. Article 3.70-8 of said Code in its pertinent parts provides:

“Nothing in this Act shall apply to or affect . . . any policy of liability insurance with or without supplementary expense coverage therein; . . . .”

The policy issued to Plaintiff-Appellant’s husband by Defendant-Appellee containing the Personal Injury Protection endorsement was clearly a liability policy with supplementary expense coverage.

“Personal injury protection” coverage is described in Article 5.06-3(b) of the Texas Insurance Code, and in effect provides coverage up to a maximum amount of $2,500.00 per person for medical and other enumerated expenses incurred by the named insured, members of the insured’s household, or authorized operator or passenger of the insured’s motor vehicle. Article 5.06-3(a) in effect requires that automobile liability insurance policies (including those issued pursuant to the Assigned Risk Plan, as here) shall provide for personal injury protection coverage to be “provided therein or supplemental thereto.”

It is undisputed that the policy in question is an automobile liability policy and the Personal Injury Protection endorsement was issued supplemental to said policy. Therefore, said policy was a liability policy with supplemental coverage and was thereby excluded by Article 3.70-8 from the grace period prescribed by Article 3.70-3(A)(3). This being so, said policy expired on August 6, 1975, and was not in effect at the time of Plaintiff-Appellant’s accident on August 9, 1975. The record before us shows that there is no genuine issue of fact, and that Defendant-Appellee is entitled to judgment as a matter of law. Rule 166-A, Texas Rules of Civil Procedure.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


text:
    Glenda Lee BEWLEY, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 5898.
    Court of Civil Appeals of Texas, Waco.
    June 29, 1978.
    Rehearing Denied July 20, 1978.
    Bill Vannatta, Clark & Vannatta, Waco, for appellant.
    Louis S. Muldrow, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellee.
   HALL, Justice.

This is a suit for workmen’s compensation brought by Glenda Lee Bewley against Texas Employers Insurance Association, compensation insurance carrier for plaintiff’s employer, Gibson’s Discount Center, Waco, Texas. Plaintiff’s claim was based upon a cold, sore throat, and pneumonia resulting from exposure to water and inclement weather suffered by her in the course of her employment.

After plaintiff’s deposition was taken, defendant moved for summary judgment asserting plaintiff’s illnesses were nothing more than diseases and infirmities to which the general public is subjected and exposed, and, as a matter of law, do not constitute a compensable injury under our workmen’s compensation laws. Plaintiff answered the motion contending that questions of fact were raised as to whether she had suffered a compensable occupational disease and physical injury. The motion was granted, and judgment was rendered that plaintiff take nothing.

Plaintiff brought this appeal asserting in her single point of error that certain fact questions are raised in the record which preclude disposition of the case by summary judgment. We overrule plaintiff’s contentions and affirm the judgment.

Resolution of the parties’ rights and liabilities requires construction and application of the pertinent parts of § 20 of Article 8306, which provide as follows:

Wherever the terms “Injury” or “Personal Injury” are used in the Workmen’s Compensation Laws of this State, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom. The terms “Injury” and “Personal Injury” shall also be construed to mean and include “Occupational Diseases,” as hereinafter defined. Whenever the term “Occupational Disease” is used in the Workmen’s Compensation Laws of this State, such term shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident to an “Occupational Disease” or “Injury” as defined in this section.

The statute sets forth and defines two general categories of compensable injuries. The first is defined as “damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom,” which has been construed by our Supreme Court to mean an “accidental injury” resulting from an undesigned, untoward event traceable to a definite time, place and cause. Olson v. Hartford Accident And Indemnity Company, 477 S.W.2d 859 (Tex.Sup.1972). The second category of compensable injuries set forth in the statute is denominated “occupational disease,” which is defined as “any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom.” However, by reason of the proviso contained in the last sentence of the statute in question, “ordinary diseases of life” to which the general public is exposed outside of the employment are not compensable except where they follow as an incident to an occupational disease or accidental injury as defined in the statute.

The evidence shows that in the latter part of July, 1974, plaintiff began work as the only cashier inside a tent located on her employer’s parking lot during a “tent sale.” She worked eight hours each day, Monday through Saturday. In plaintiff’s words, the tent “was kind of like a circus tent, a pole here and a pole here and then the top come over, and the sides were all down until it got hot, and sometimes they would raise them.” When plaintiff began work at the tent sale, the temperature was 107 degrees outside the tent and 114 degrees inside it. Plaintiff worked at this job through Tuesday, August 27th. During most of the week beginning Monday, August 19th, rain fell steadily. The tent was located in a low place on the parking lot, and water flowed under the tent throughout the rain. At times, the water was so deep that plaintiff’s feet were completely covered. Plaintiff was required by her employer to remain in the tent even though conditions were so bad all customers would leave the tent. She owned no rain gear and was supplied none by her employer. Her shoes “came apart” and her feet “dried up like prunes.” Additionally, when plaintiff went to and from the main store building her head sometimes got wet. Plaintiff’s station as cashier was at the only entrance into the tent. When the wind was blowing plaintiff was required to close the tent door to keep the rain from blowing in. As a result of standing and working in the water and exposure to the inclement weather plaintiff developed a cold on Tuesday or Wednesday, August 20th or 21st, had a sore throat within a week, then began having difficulty breath-. ing, and by September 20th her condition had progressed into pneumonia. Although not hospitalized, plaintiff was thereafter treated for her illness by a medical doctor for about six weeks and was disabled during that time.

It has been the uniform holding of the courts of our State that illnesses like cold, sore throat, and pneumonia resulting solely from exposure to rain, wind, wetting, and cold weather in the course of employment are not “personal injuries” or “diseases or infections as naturally result therefrom” within the meaning of the workmen’s compensation statute, although the evidence in the cases showed that by reason of the employment the employee’s exposure to the elements causing his illness was traceable to a definite time, place, and event, and was greater than the exposure of the public generally. Texas Employers’ Ins. Ass’n v. Jackson, 265 S.W. 1027,1029 (Tex.Com.App.1924, judgment adopted); Amann v. Republic Underwriters, 100 S.W.2d 778, 780 (Tex.Civ.App.—Fort Worth 1937, no writ); Cunningham v. Fidelity & Casualty Co. of New York, 102 S.W.2d 1106, 1107 (Tex.Civ.App.—San Antonio 1937, writ dism.); Aetna Casualty & Surety Co. v. Sparrow, 122 S.W .2d 286, 288 (Tex.Civ.App.—Beaumont 1938, writ dism). Those decisions are to be distinguished from holdings which permit recovery for pneumonia, tuberculosis and other respiratory diseases which follow as the result of sudden, accidental inhalation of heavy volumes and concentrations of noxious gases, dust, metal filings or other foreign substances which cause damage to the lungs. See, Maryland Casualty Co. v. Rogers, 86 S.W.2d 867 (Tex.Civ.App.—Amarillo 1935, writ ref.); Barron v. Texas Employers’ Ins. Ass’n, 36 S.W.2d 464 (Tex.Com.App.1931); Traders & General Ins. Co. v. Wright, 144 S.W.2d 626 (Tex.Civ.App.—Eastland 1940, writ ref.); Texas Employers’ Ins. Ass’n v. Robison, 241 S.W.2d 339 (Tex.Civ.App.—Dallas 1951, writ ref’d n. r. e.); American General Ins. Co. v. Ariola, 187 S.W.2d 585 (Tex.Civ.App.—Galveston 1945, writ ref. w. m.).

The case before us is factually in point with the Jackson and Amann cases, supra, in which claims for benefits under the workmen’s compensation laws were denied. The claimant in each of those cases was repeatedly soaked by rain and chilled by winds over a two-day period in the course of his employment, resulting in cold, and then pneumonia. In the course of its holding, the court in Jackson said:

“Here we have an employe in ' the course of his employment getting wet. As a natural result of getting wet he contracted cold, and pneumonia resulted. While the disease was the natural result of getting wet, the mere getting wet was not a ‘damage or harm to the physical structure of the body,’ and, unless it was, it could not be said to be an ‘injury’ or ‘personal injury,’ for which compensation is allowed by the statute. For, before compensation may be had for the disease, it must be an ‘injury’ provided for by the statute, and it cannot be such ‘injury’ unless it naturally results from ‘damage or harm to the physical structure of the body.’ ”

In Amann, the court cited the holding in Jackson, and said:

“It was not contemplated by the lawmakers that the law should cover health insurance. It is a matter of rather common knowledge that ‘colds,’ influenza and pneumonia are the result of bacteria — in common parlance, germs — attacking the body. These germs appear and cause epidemics in cities, towns, and counties. It is also a matter of rather common knowledge that many such germs appear to be in the very atmosphere surrounding us, at all times. Any and every person is ‘exposed’ to them without being conscious of the fact. Medical science teaches that we fall victims of these germs because at the time of the attack we are not physically able to withstand their assaults.
“If this appellant can recover compensation under the facts pleaded, then every employee who is engaged in labor that actually tires the body and causes what the layman calls a ‘run-down condition’ can recover compensation by showing that his work weakened him and lowered his resistance and caused him to succumb to the attack of any disease, which he would otherwise have been able to resist.”

The plaintiff in our case points to the fact that those cases were decided when no provision was made in our laws for compensation for occupational diseases. She argues, in effect, that fact questions are raised in the record as to whether her illness was an occupational disease. The term “occupational disease” in our workmen’s compensation statutes has been construed by the courts to mean a disease which is contracted gradually in the course of an employment and as a commonly recognized incident of it, whose time and place of development are not susceptible of definite ascertainment. Texas Employers’ Ins. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147, 150 (1948); Solomon v. Massachusetts Bonding And Insurance Company, 347 S.W.2d 17, 19 (Tex.Civ. App.—San Antonio 1961, writ ref’d). Plaintiff’s illness does not fall within this definition. To the contrary, plaintiff’s illness was an “ordinary disease of life to which the general public is exposed” which is not compensable under the statute under review unless it follows as an incident to a compensable occupational disease or accidental injury.

In Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315, 318 (1955), the court restated the rule that in determining the meaning of the definition of injury contained in the Workmen’s Compensation Statute the courts should be guided by the rule of construction that since the statute is remedial in its character “if there be any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation, same should be solved in favor of such right.” Under the record before us it is undisputed that plaintiff contracted pneumonia in the course of her employment. In view of that fact we have diligently undertaken to find an intention on the part of the Legislature to provide compensation for plaintiff’s disability, in compliance with the Supreme Court’s direction that the Workmen’s Compensation Act be liberally construed. Nevertheless, we cannot disregard the fact that the rights and obligations of the parties are controlled by the provisions of the Act. Houston Fire & Casualty Ins. Co. v. Dieter, 409 S.W.2d 838, 840 (Tex.Sup.1966). We have concluded that the constructions sought by plaintiff are not consonant with the law as written. For that reason we must, and do, affirm the summary judgment.


author: STERNBERG, Justice.

text:
    David Haryey BREWSTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 13, 1978.

      Jack E. Farley, Public Defender, Kevin M. McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

This is an appeal from a judgment of the Boyd Circuit Court finding appellant guilty of murder (KRS 507.020), first-degree robbery (KRS 515.020), and two counts of first-degree assault (KRS 508.010). He was sentenced to imprisonment for 60 years on the murder charge, 20 years on the robbery charge, and 20 years each on the two charges of first-degree assault. The sentences were ordered to run consecutively.

On February 27, 1976, at about 7:30 or 8:00 p. m., the appellant entered the Ash-land Foodland grocery, in Ashland, Kentucky, and at the point of a pistol robbed it of an estimated $450 to $500. In the course of the robbery, which lasted less than 15 minutes, the appellant shot and killed Clayton D. Craycraft and shot Robert A. Cray-craft and Gene Atkins, without killing either of them. After the shooting the Ash-land Police Department, with the assistance of FBI agents, made an extended nationwide search for the appellant. On July 11, 1976, he was arrested by FBI agents in San Diego, California, and thereafter returned to Boyd County, Kentucky, for trial.

The appellant argues nine alleged errors, each of which if found to exist would compel a reversal. We must bear in mind that the appellant sought and was granted a trial to the learned trial judge rather than exercise his constitutional right of having his guilt determined by a jury. This, he has a right to do. Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975).

The appellant’s sole defense was that of insanity. KRS 504.020(1) provides:

“A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

The defense of insanity requires proof of (1) mental disease or defect, and (2) substantial incapacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The record discloses that there was sufficient medical testimony to at least make an issue on the first requirement, and as to the latter, the record does not reflect any evidence answering in the affirmative. During the course of the trial counsel for the appellant made three attempts to elicit affirmative answers. Each time an objection to the question was sustained by the court. The objections were directed at the form of the questioning, not at the substance of the answers sought to be elicited. In each instance the question was leading and would technically do violence to CR 43.05. However, where the interrogation such as in the instant case is of a professional person, the strict rule of a leading question need not be observed. Moreover, in the instant case, the trial was to the judge, who would readily look to substance over form. Be that as it may, the court did not cause the appellant’s counsel to cease his interrogation. Counsel’s efforts toward propounding a question that did not suggest the desired answer were not prohibited, only awaited a properly stated question. The record reflects that after a conference at the bench relative to an objection to the form of the offered, but objected to, question, the trial judge, in sustaining the objection, said, “Proceed with direct examination Mr. Early, sustained.” Thereafter, counsel for appellant immediately asked the following question:

“Q-79. Doctor Granikar, we will ignore the question, I’ll rephrase the question. Based on your education and experience, observation and evaluation and the history of the patient, do you have an opinion based on reasonable medical certainty as to whether the Defendant suffered from a mental disease or defect on the 27th of February, 1976?”

Appellant’s counsel did not make any further effort toward eliciting information relative to whether the appellant, at the time of the commission of the crimes with which he was charged, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of .law. Q-79, supra, was directed at whether the appellant had a mental disease or defect, which had already been established in the affirmative. The question was one of proper procedure. Not having pursued the interrogation, the appellant cannot now complain. The appellant was not denied his constitutional right to be heard or to have his day in court.

The appellant further charges that the trial court erred in failing to direct a verdict of acquittal by reason of insanity. We must continue to bear in mind that the case was tried to the court and not to a jury. The trial judge held that since there was no testimony that the appellant, on the occasion of the murder, robbery and assault, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, he was not entitled to an acquittal on the grounds of insanity. The trial court did not err in refusing to find the appellant not guilty by reason of insanity.

Next, the appellant contends that the trial court erred by refusing to grant his motion for change of venue or, in the alternative, to summon a jury from another county. The appellant relies exclusively upon the due-process clause of the 14th Amendment to the United States Constitution. However, KRS 452.210 is also relevant to the disposition of this issue. Under either the due-process clause or the applicable statutory guidelines, a change of venue should be granted if it appears that the defendant cannot have a fair trial in the county wherein the prosecution is pending. Specifically, the appellant relies upon the landmark case of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), in which the United States Supreme Court held that “ * * * where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.” The decision in Sheppard thus requires a showing that (1) there has been prejudicial news coverage, (2) it occurred prior to trial, and (3) the effect of such news coverage is reasonably likely to prevent a fair trial.

In the case at bar, the record shows that counsel for appellant proffered the affidavits of residents of Boyd County, wherein the affiants stated that public opinion concerning the defendant was such as to preclude a fair trial from being had in that county. The Commonwealth submitted countervailing affidavits which refuted this contention. Other exhibits, which also have been made a part of the record, showed that there were several news articles appearing prior to the commencement of the trial concerning the criminal offenses and the subsequent investigation. During a hearing on the motion for a change of venue, counsel for appellant stated that “the defendant simply does not believe that the court could obtain jurors from this county who have not read about, talked about, heard about the case at trial * * *.” However, the mere fact that jurors may have heard, talked, or read about a case is not sufficient to sustain a motion for change of venue, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant. A failure to present such a precise claim of prejudice to the trial court is a failure to comply with the criteria outlined by the Supreme Court in Sheppard. Of course, a showing of actual prejudice is unnecessary if the procedure involves such a probability that prejudice will result that it is deemed inherently lacking in due process. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). After reviewing the publicity in this case, we do not believe that such a probability of intrinsic prejudice existed. Prejudice must be shown unless it may be clearly implied in a given case from the totality of the circumstances.

The appellant did assert to the trial court that news coverage of a lawsuit filed by Gene Atkins, who was shot during the commission of the crimes, was prejudicial and denied him his right to a fair trial. This article quotes from the civil complaint filed by Atkins, wherein it is stated that the supermarket was “robbed by David Harvey Brewster while Mr. Atkins was in the store.” The newspaper article in question merely quotes from the complaint, and it is clearly stated that the information contained in the article is a series of assertions that had been made by a party to a civil action. This article was not prejudicial to the defendant and, thus, a change of venue was not required.

Concerning the appellant’s request to summon jurors from another county, the trial judge did not abuse his discretion by denying this request since he had been presented with arguments that were inadequate to establish prejudice. When the appellant’s motions were overruled, he decided to waive his right to a jury trial without first attempting to secure a fair and impartial panel. Thus, no voir dire examination was conducted. Hypothetically, such an examination could have disclosed-a jury panel permeated with prejudice, in which event the trial judge would have undoubtedly felt compelled to reconsider the motion for a change of venue or, in the alternative, to impanel a jury from another county. On the other hand, voir dire may have disclosed that the prospective jurors had no prior knowledge of the crime or the defendant’s identity. Counsel for appellant certainly was not foreclosed from conducting voir dire before waiving the right to a jury trial. The record does not disclose that there was any infringement upon the defendant’s right to a fair trial.

The appellant requested, but did not receive, additional peremptory challenges. RCr 9.40 does not provide for additional peremptory challenges in a case where a single defendant is being tried. After carefully considering the facts and reviewing the record, we believe the actions of the trial judge were altogether proper and certainly do not constitute an abuse of judicial discretion.

Complaint is made that one of the victims was permitted to sit at the table with the Commonwealth’s Attorney and that the jailer was permitted to sit at the table with the appellant. The witnesses were caused to be separated as provided by RCr 9.48; however, the Commonwealth’s Attorney expressed the need to have Robert A. Craycraft, one of the victims, sit at the table with him so that they could confer from time to time. This, the court permitted over objection by appellant. This practice is neither new nor unusual. It is so well established that there is no need for a citation of authority and, as a matter of fact, it has been the law of this Commonwealth for so long that the mind of man runneth not to the contrary that in a criminal case the trial judge, in his discretion, may allow one witness to remain in the courtroom to aid the Commonwealth’s Attorney. The court did not err in permitting Craycraft to sit at the table with the Commonwealth’s Attorney.

At the initiation of the proceedings, the jailer of Boyd County was sitting at the defense table with the appellant. Appellant complained of this arrangement, and the court caused the jailer to sit behind the appellant far enough away from him so as not to interfere with communications between the appellant and his counsel, however close enough to him to prevent his escape. The appellant on a prior occasion had escaped from a jail in Cabell County, Florida. The court did not err in exercising this discretion.

The appellant further argues that he has been prejudiced by the failure of the Commonwealth to furnish him with two of the cartridges found at the scene of the shooting. One of the cartridges had been examined at the FBI laboratory and the other had not been examined. Several casings that were recovered from the area where the shooting took place had been tested and were shown to have been fired from the weapon which had been recovered when the appellant was arrested in San Diego. Neither of these two cartridges had been offered in evidence and their existence was not made known until disclosed in the questioning of Captain Earl Borders of the Ashland Police Department. There was no purposeful withholding of the evidence. The most benefit that the appellant could expect to receive from the use of either of these two casings is a failure of the casings to correspond in design with the bullets that had been shot from the subject pistol and into the victims. In Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977), we said:

“Appellant argues that since he was not furnished this report until the day of trial, although he had previously requested it through a motion to produce, inspect and copy pursuant to RCr 7.24, the admission of the technician’s testimony elaborating on the contents of the report was prejudicial error. We have studied the results of the tests as reported by the technician in his testimony and cannot find the untimely furnishing of this report to appellant’s counsel to have so prejudiced his right to a fair trial as to warrant reversal of his conviction. * * ”

The eyewitnesses to the shooting and robbery leave no room for doubt that the pistol recovered by the FBI agents fired the bullets that killed Clayton D. Craycraft and wounded Robert A. Craycraft and Gene Atkins.

Next, appellant alleges that the integrity of some of the Commonwealth’s exhibits was not proven. He calls to our attention the casing about which Captain Borders testified. Its integrity was not shown to have been properly protected; consequently, it was not proper that it be introduced into evidence and was not. Hence, it was not prejudicial to the appellant. Chief Mutters of the Ashland Police Department testified that the exhibits filed by him were kept under lock and key in his office. Counsel for appellant complains that other persons may have had a key and for that reason the integrity of the exhibits was not established. Even though other persons in the police department may have had a key to the office where the exhibits were stored, we will not hold that the mere possibility of another person having access to an exhibit will destroy its competency. 24-hour possession is not required. The storage facilities provided by the FBI for its agents is entitled to credibility, and the appellant’s challenge to the integrity of the exhibits by reason of them being in the FBI’s storage room for three days is without foundation. Exhibits stored in the due course of business in storage facilities provided for that purpose constitutes constructive possession of the agent and their integrity is satisfied.

The appellant vigorously argues that he should have been permitted to interrogate the witness James L. Zopp relative to the basis for his arrest in San Diego. It is the appellant’s argument that the correctness of the ruling of the trial court could affect the admission into evidence of the pistol that was recovered subsequent to his arrest. The record reflects several interesting and salient facts, as follows:

1. The San Diego, California, office of the FBI received information that appellant was wanted as a federal fugitive. The information contained the address at which he was living and a description of the vehicle in which he was traveling.
2. The apartment and the automobile were under surveillance from 10:00 a. m. to 2:00 p. m. on July 11, 1976, which was the time and date of appellant’s arrest. Appellant knew he was wanted as a fugitive.
3. The pistol was recovered from an automobile registered and licensed in the name of Jackie Corns.
4. Both Brewster and Corns signed written consents to the search of the apartment and the automobile.
5. Appellant was arrested in San Diego, California, as an escaped federal prisoner.
6. Counsel for appellant admits that had this case been tried before a jury an avowal would have been required to preserve for appellate review the alleged error now under consideration.

The automobile in which the gun was found was owned by appellant’s traveling companion Ms. Corns. Both she and the appellant had given signed consents to the search of this car. The car was searched on July 12,1976, without either the appellant or Ms. Corns being present. The signed consent to search was all that was necessary.

Finally, the appellant claims that KRS 504.020 is unconstitutional since it places the burden of proving a mental disease or defect in exculpation of criminal conduct on the defense.. Recently, in McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977), this court carefully considered this issue. We determined that KRS 504.-020 fell within the limitations imposed upon the Commonwealth by the 14th Amendment to the United States Constitution. We therefore, reject the appellant’s contentions and reaffirm our prior holding in McDonald.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    Earl CONOVER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 13, 1978.
    Jack Emory Farley, Public Defender, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

On June 4, 1977 Earl Conover was convicted of the murder for hire of Curtis Snow and on June 16, 1977 he was sentenced to life imprisonment. His defense of alibi, corroborated by his brother, was rejected by the jury. He appeals and makes five assignments of error, only one of which is of a quality sufficient to justify discussion. We affirm.

On the day of the murder August 8, 1974, Snow and his wife were canning at his mother’s house. They were sitting on his mother’s porch when two men in a strange car with Illinois license plates drove up to their mobile home which was located about two hundred feet from the house. The car left in a few minutes but returned later and started backing toward the house. Snow went down to the car while his wife went inside the house and watched from a window. He squatted down by the car and as his wife turned away from the window she heard a gunshot. She ran to get their child. She heard two more gunshots. The car was gone before she could get out of the house. Snow was fatally wounded by a nine millimeter firearm. Two nine millimeter slugs and one nine millimeter cartridge hull were recovered at the scene.

Conover was one of the suspects from the inception of the investigation. Snow’s wife was unable to identify Conover as the driver of the car from photographs, but she was able to so identify him when she eventually saw him in person on March 10, 1977.

While Conover was confined in the penitentiary on an unrelated charge he repeatedly bragged to a cell mate, Terill Whittle, that he had killed Snow. Whittle contacted the police through his lawyer and told them of his conversation with Conover in regard to the murder of Snow. After Whittle gave them this information the police wired Whittle for sound on October 26, 1976, and placed him in a cell with Conover in the Russell County Jail so that a tape recording could be obtained of Conover’s admissions. Conover was not given the Miranda warnings nor was he informed of the “bug”. The recording of the conversation between Whittle and Conover was unsuccessful because of an unexplained mechanical failure which caused the recording to be garbled.

After the attempted “bugging” the police allowed Whittle and his attorney on November 7, 1976, to talk to Conover at the penitentiary. During the conversation Con-over was told of Whittle’s disclosures to the police and of the “bug”. Whittle made it perfectly clear to Conover that he would testify against Conover at trial. Whittle’s attorney told Conover that if Conover agreed to testify against his employer he would try to get him a ten-year sentence. Exit Whittle and his lawyer. Enter the police.

The police advised Conover of his rights as required by Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Conover made a confession which was recorded, transcribed and signed. Thereafter Conover moved to suppress the confession. A full hearing was held and the motion was denied. The confession was later admitted into evidence at trial.

Conover’s theory is that the “bugging” attempt was in violation of his rights to counsel and against self-incrimination, that the confession was induced by the “bugging” attempt and that, consequently, the confession is not admissible because it is a fruit of the poisonous tree. Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). The theory is ingenious but ignores the realities of criminal investigation and the facts of this case.

Conover made his first admissions to Whittle of killing Snow prior to any contact or relationship between Whittle and the police. These initial disclosures to Whittle were clearly voluntary and obviously admissible at trial. At this stage of the game Conover assumed the risk of betrayal when he confided in Whittle, daggers v. Commonwealth, Ky., 439 S.W.2d 580, 584 (1968); See Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427,439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

In United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947) and thereafter in Harrison v. United States, supra, 392 U.S., at 226 n. 14, 88 S.Ct. at 2012, the Supreme Court of the United States pointed out:

“Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.”

It is beyond doubt that the confession admitted at trial is the fruit of the first admissions to Whittle, not the fruit of the “bugging” attempt. Consequently, the tree from which the confession springs is not poisonous.

This approach to the case makes it unnecessary for us to decide the constitutional propriety of the “bugging” attempt which very well might pass muster. See United States v. Missler, C.A. 4th, 414 F.2d 1293, 1302-1303 (1969), cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); Mathis v. United States, 391 U.S. 1, 7-8, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (White, J., dissenting). In any event the admission of the confession could be no worse than “harmless error beyond reasonable doubt” because there was overwhelming evidence of Conover’s guilt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); See People v. Miller, 245 Cal.App.2d 112, 53 Cal.Rptr. 720 (1966), cert, dismissed sub nom. Miller v. California, 392 U.S. 616, 88 S.Ct. 2258, 20 L.Ed.2d 1332 (1968); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The judgment is affirmed.

All concur.


author: HAYES, Judge.

text:
    McCRACKEN COUNTY HEALTH SPA and the St. Paul Insurance Company, Appellants, v. Michael Glenn HENSON and Kentucky Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Dec. 16, 1977.

      Jonathan Freed, Boehl, Stopher, Graves & Deindoerfer, Paducah, for appellants.
    Mark D. Pierce, Paducah, for appellees.
    Before COOPER, HAYES and HOWER-TON, JJ.
   HAYES, Judge.

This is an appeal from a summary judgment entered by the McCracken Circuit Court affirming an opinion and award of the Workmen’s Compensation Board.

Appellee, Michael Glenn Henson, began his employment as an instructor with the appellant, McCracken County Health Spa, on July 24, 1974. Appellant is in the business of establishing exercise programs in order to promote the physical fitness of its members. On August 6, 1974, appellee, another instructor, and a club member began to discuss karate, and the different holds that might be employed. Appellee began to demonstrate a break-away hold on a club member, when both of them slipped and fell. Appellee sustained an injury to his right knee as a result of the accident. Appellant did not offer any course or program in karate or self-defense.

The Workmen’s Compensation Board found that the appellee sustained a work-related harmful change to his body which entitled him to Workmen’s Compensation benefits. The McCracken Circuit Court affirmed the decision of the board.

Appellant contends that appellee was not entitled to the award since his injury was sustained through “horseplay”, and therefore his injury was not “work-related” as required under the Workmen’s Compensation Law.

The question presented in this case is whether or not the claimant sustained a “work-related” injury within the meaning of KRS 342.620(1).

KRS 342.620(1) provides: “(1) ‘Injury’ means any work related harmful change in the human organism . . .” The term “work-related” in this statute means that the injury must have arisen out of and in the course of employment, Seventh St. Road Tobacco Warehouse v. Stillwell, Ky., 550 S.W.2d 469 (1976).

In order for an injury to arise out of employment, there must be a causal relationship between the employment and the injury. If the injury was brought about by reason of some other cause having no relation to the claimant’s employment it cannot be said to have arisen out of employment, Hayes Freight Lines v. Burns, Ky., 290 S.W.2d 836 (1956).

If the karate practice which resulted in appellee’s injury had been shown to be one of a series of similar incidents generally participated in, to the employer’s knowledge, by his employees, the Workmen’s Compensation Board could find that it had become a custom of the claimant’s employment. This would have made the injury arise out of employment and thus it would be work-related, Hayes Freight Lines v. Burns, supra.

However, the Workmen’s Compensation Board failed to make a specific finding of fact on the issue of “work-relatedness”. The Board’s Findings of Fact stated that the claimant, “received a work related injury to his right leg while working for defendant”.

This statement by the Board is a conclusion of law and not a finding of fact. The Board made no specific findings of fact to sustain this conclusion of law. “There is nothing in the Board’s opinion and award concerning this conclusion of law which can serve as the basis for meaningful appellate review of the Board’s conclusion.” Harry M. Stevens Company Inc. v. Workmen’s Compensation Board, Ky.App., 553 S.W.2d 852 (1977).

Further, it was clearly erroneous for the Circuit Court, upon review of the Board’s opinion and award, to make its own specific findings of fact and thereby substitute itself for the Board as the finder of fact.

“The board is the sole fact finder in compensation proceedings and the circuit court may not substitute its opinion for that of the board on the weight of the evidence.” Armco Steel Corporation v. Mullins, Ky., 501 S.W.2d 261 (1973).

Therefore, this case is reversed with directions to the Circuit Court that it remand the case to the Workmen’s Compensation Board for a finding of fact sufficient to make a determination as to whether or not the claimant sustained a work-related injury within the meaning of KRS 342.610(1) and KRS 342.620(1).

All concur.


author: WHITE, Judge.

text:
    UNITED ROAD MACHINERY COMPANY, Appellant, v. Ethard JASPER, Individually and d/b/a Jasper Wrecking or Junk Yard, Jasper & Jasper Coal Company, Inc., and Clyde Jasper, Appellees.
    Court of Appeals of Kentucky.
    June 23, 1978.

      Henry C. Stoltz, London, for appellant.
    Lester H. Burns, Jr., Burnside, for appel-lees.
    Before WHITE, HAYES and PARK, JJ.
   WHITE, Judge.

Appellant seeks reversal of a Laurel Circuit Court order dismissing the complaint against appellees Ethard Jasper individually and d/b/a Jasper Wrecking or Junk Yard, Jasper & Jasper Coal Co., Inc. and Clyde Jasper. Consolidated Coal Corporation and J. R. Durham are not parties to this appeal as no appealable order has been entered concerning these defendants.

Appellant United Road Machinery Co. is a dealer in heavy road equipment, including truck scales, with its principal place of business in Memphis, Tennessee. Its supplier for such truck scales is Thurman Scale Company in Columbus, Ohio. Appellant received a phone call on July 21, 1975, from James R. Durham, an officer of Consolidated Coal Co., seeking acquisition of truck scales for his coal-mining operation. A lease-purchase agreement was entered into by the parties at this time providing for monthly payments of $608 over a 24-month period with an option to purchase for one dollar consideration, exercisable at the termination of the lease. The designated scale was a Thurman portable-pitless scale, Model RS 5260-PFW-TPB, 50-ton capacity, serial number 75PT6126, valued at $13,133.

Appellant subsequently notified its supplier, Thurman Scale Company, that Consolidated Coal would take possession of the scales from the supplier. Appellant paid for the machinery at that time. On July 28, 1975, Consolidated Coal obtained the scales without signing a contract with appellant at that time; rather, the contract papers were forwarded to Consolidated by appellant but never returned. The scales were taken to Consolidated’s place of business in Laurel County where decking was added, increasing the value of the scales to approximately $16,000. Appellant has never received any consideration, either in rental payments or purchase price, on this equipment.

On September 20, 1975, Consolidated Coal, through its agent and officer J. R. Durham, sold the truck scales to Kentucky Mobile Homes, whose president is Ethard Jasper, for a purchase price of $8,500. Before purchase, Ethard Jasper checked Laurel and Pulaski County records for any possible lien, mortgage or other encumbrance on the property. Such search revealed no encumbrance of any kind. Ethard Jasper contends that Consolidated Coal appeared to have good title to the scales and he further denies any knowledge of the dispute between appellant and Consolidated Coal.

On September 22, 1975, Kentucky Mobile Homes sold the truck scales to Clyde Jasper, individually, for $8,500 in cash. Before purchasing the equipment, Clyde Jasper also conducted a search of Laurel and Pulaski County records, which revealed no evidence of any lien, mortgage or encumbrance on said machinery. Clyde Jasper also denies any knowledge of the dispute between appellant and Consolidated Coal Company or appellant and Kentucky Mobile Homes. The scales are presently in the possession of Clyde Jasper on his property in Pulaski County, Kentucky; and First and Farmers National Bank of Somerset, Kentucky holds a mortgage on the scales, which is recorded in the county clerk’s office in Pulaski County.

Three possible situations exist under which appellees received possession of the scales, any one and/or all three of the possibilities conferring good title in appellees.

The first possibility is that Consolidated Coal Company had good title to the truck scales. Under both Common Law and the Uniform Commercial Code, a purchaser acquires all title the seller had or, if a limited interest is transferred, all title to the extent of that interest. KRS 355.2-403(1). Thus if Consolidated Coal possessed good title to the truck scales, appellees in turn gained good title upon transfer.

The second possibility occurs if Consolidated Coal had voidable title. KRS 355.2-403(1) provides: “A person with voidable title has power to transfer a good title to a good faith purchaser for value.” Assuming that Consolidated Coal had voidable title, appellees, to obtain good title, must be found to be good faith purchasers for value. KRS 355.1-201(19) defines “good faith” as “. . . honesty in fact in the conduct or transaction concerned.” “Purchaser” is defined as “ . . . a person who takes by purchase.” KRS 355.1-201(33). “Purchase” in turn “ . . . includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.” KRS 355.1-201(32). Lastly, “ . . .a person gives ‘value’ for rights if he acquires them (d) generally, in return for any consideration sufficient to support a simple contract.” KRS 355.1-201(44)(d). As the circuit court aptly put it: “A ‘good faith purchaser for value’ can be defined as one who takes by purchase getting sufficient consideration to support a simple contract, and who is honest in the transaction of the purchase.” It is the opinion of this court that appellees meet this criteria.

Concerning voidable title, KRS 355.2-403(1) goes on to state that good title may be transferred under certain circumstances:

When goods have been delivered under a transaction of purchase the purchaser has such power even though
(a) the transferor was deceived as to the identity of the purchaser, or
(b) the delivery was in exchange for a check which is later dishonored, or
(c) it was agreed that the transaction was to be a ‘cash sale,’ or
(d) the delivery was procured through fraud punishable as larcenous under the criminal law.

Assuming that Consolidated Coal’s actions toward appellant fall within one of the four enumerated circumstances, a “transaction of purchase” is still requisite before the statute becomes operative allowing transfer of good title. Appellant argues that no transaction of purchase occurred, that the agreement between appellant and Consolidated Coal was not a purchase transaction but merely a lease, and that the law concerning landlord-tenant, and not the Uniform Commercial Code, governs. Therefore the concept of voidable title has no application in this case.

This court feels there was a “transaction of purchase” per the code definition (see above). “The purpose, rather than the name given a contract by the parties controls, and the court will give effect to the real and dominant intention of the parties when definitely ascertained.” Trinity Temple Charities, Inc. v. City of Louisville, 300 Ky. 172, 188 S.W.2d 91, 94 (1945).

Even if Consolidated Coal Company had no title in the truck scales to convey, this court finds appellant estopped from asserting his proper title against the appel-lees as bona fide purchaser. The Common Law rule generally allowed a purchaser to obtain that title possessed by the seller and “ . . . one who had no title could convey none.” 67 Am.Jur.2d Sales § 259, at 394. Exceptions to the general rule were shaped by equity courts and under certain circumstances the true owner of the property was estopped from asserting title. The doctrine of estoppel was applied to circumstances where the seller possessed indicia of ownership sufficient to indicate to the purchaser that he had power to convey.

And it has been stated that no buyer was bound to assume that the seller with whom he dealt was a wrongdoer, and if the seller presented property the title to which was apparently valid and there were no circumstances disclosed which cast suspicion upon the title, the buyer might rightfully deal with him, and, paying full value of the same, acquire the rights of a purchaser in good faith. Id. at 395.

In the present case, there was nothing to suggest that Consolidated Coal was not the owner of the scales. J. R. Durham in fact held himself out to be such owner. Furthermore, a search of county records revealed no encumbrances upon the machinery, and appellees had no knowledge of or reason to suspect a dispute between appellant and Consolidated Coal. KRS 355.1-201(37); KRS 355.9-102(l)(a). Under these circumstances, appellees are found to be bona fide purchasers in good faith.

Bona fide purchasers are favorites of the law, and they should only be required to pay for another’s negligence or mistake when the circumstances are so unusual as to justify a finding that they took unfair advantage of a transaction initiated by the complaining party.
It is unfortunate that [appellant was] defrauded. It is inequitable to require a blameless third party to pay for their mistake. Both parties being innocent, the loss must be borne by the party whose initial conduct puts it in the power of another to cause the loss. Dudley v. Lovins, 310 Ky. 491, 220 S.W.2d 978, 980 (1949).

For the foregoing reasons, the judgment is affirmed.

All concur.