author: EVANS, Justice.

text:
    BRITISH OVERSEAS AIRWAYS CORPORATION, Appellant, v. TOURS AND TRAVEL OF HOUSTON, INC., Appellee.
    No. 17061.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 1, 1978.
    Rehearing Denied July 6, 1978.

      Funderburk & Funderburk, Larry B. Funderburk, Don Karotkin, Houston, for appellant.
    Talbert, Giessel & Stone, John W. Berkel, Houston, for appellee.
   EVANS, Justice.

This action for damages, based upon allegations of libel, breach of contract and tor-tious interference with business relationship, was brought by the plaintiff, Tours and Travel of Houston, Inc., a travel agency, against the defendant, British Overseas Airways Corp. The basis of the plaintiff’s claim is a telex message sent by British Airways to International Air Transport Association on May 19, 1972, as follows:

“This is to advise that Tours and Travel of Houston, Inc., 936 Mellie Esperson Building, Houston, Texas, Code 87762, is in default to BOAC in the amount of $3,572.18.”

International Air Transport Association (IATA) is an organization of international airlines engaged in providing international air transportation. Another association, Air Traffic Conference of America (ATC) is an association of domestic airlines, providing the same function as IATA on behalf of member airlines with respect to domestic air service. Tours and Travel was an approved travel agency for both associations.

Any airline which became a member of IATA or ATC agreed to be bound by the rules and regulations of that association to which it belonged. A travel agent such as Tours and Travel, desiring to sell international or domestic air transportation tickets for a particular airline, had to be approved by the association in which the airline had a membership, and as a condition to such approval the agent was required to sign a sales agreement, agreeing to abide by all of the rules and regulations promulgated by that association. A function of each airline association was the adoption of rules and regulations concerning the procedures to be followed by travel agencies in selling airline tickets.

In the event a travel agent did not comply with the procedures established for reporting ticket sales or for remitting the monies received from such sales, the particular airline affected might report to the applicable association the fact that the travel agent was “in default of” its regulations. Upon receipt of an airline’s notification that a travel agent was in default, the association could report such default to each of its airline members with which the travel agent did business. The airlines receiving the association’s notification would then withhold and refuse to pay to the travel agent, until the default had been remedied, all commissions owed and unpaid and all commissions subsequently earned.

Since some international airlines did business with travel agents within the United States, the authority of IATA and ATC to some extent overlapped, and coordinating procedures were adopted by the associations so that travel agents approved by both organizations for the sale of domestic and international airline tickets could use the reporting procedures of the ATC, rather than the procedures of the IATA. Tours and Travel, which had been approved as a travel agent by both associations, therefore, used only the reporting procedures of the ATC and was not on a reporting basis with the IATA. Thus, Tours and Travel always followed ATC reporting procedures in the sale of British Airways’ tickets.

Beginning in January 1971, British Airways sent a number of “agency debit memos” to Tours and Travel, seeking refund of commissions allegedly due as a result of flight cancellations and refunds made by British Airways to passengers who had purchased tickets through Tours and Travel. The validity of these claims was questioned by Tours and Travel and the testimony is in dispute concerning the extent to which the parties’ respective representatives made diligent, good faith effort to furnish the other party with documentation as to the accuracy of the items in question.

On May 19,1972, the claims had not been resolved, and British Airways sent the above-quoted telex message to IATA, advising that Tours and Travel was in default in the amount of $3,572.18. As a result of this message, Tours and Travel was placed in a default status with IATA and its member airlines for approximately three months. When the parties finally reconciled the disputed accounts, it was determined that the total amount owed by Tours and Travel to British Airways, after deducting commissions withheld from June 1971 to the time of reconciliation, was in the sum of $391.47.

In response to special issues the jury found (1) that Tours and Travel was not in default; (2) that the telex message had been sent by British Airways with malice; (3) that the action of British Airways in sending the message was not done in good faith; (4) that Tours and Travel had sustained actual damages in the amount of $25,000.00; and (5) that Tours and Travel was entitled to exemplary damages in the amount of $7500.00. . Based on the jury’s verdict, the trial court entered judgment in favor of Tours and Travel in the amount of $32,500.00.

It is the position of British Airways that the evidence conclusively established that Tours and Travel was in default on May 19, 1972, and that the jury’s finding to the contrary is without legal or factual support in the evidence and is against the great weight and preponderance of the evidence. British Airways contends that since the undisputed evidence shows that Tours and Travel owed certain monies to it on May 19, 1972, there was no basis upon which the jury could have concluded that Tours and Travel was not in default of its obligations on that date.

The pertinent regulation of the IATA provides as follows:

“Declaration of Default for Non-Remittance “(6) If any agent fails to remit the monies due to any Member, so as to reach the Member within a further period of ten days after the appropriate remittance date as provided in Paragraph (2) or (3) as appropriate, such Member shall immediately declare the agent in default by telegraphing . . . the Agency Administrator. (. . .) Similarly, upon notification by the Air Traffic Conference of America that an IATA Passenger Sales Agent has failed to remit monies due and is in default according to its rules, the Agency Administrator shall immediately so advise all IATA Members and Members of the Agency Administration Board. (. . .)” (International Air Transport Association Resolution 810[a] USA, Section G, Subsection 6)

The paragraphs (2) and (3) referred to in this regulation set forth the reporting and billing procedures applicable to travel agencies approved by the IATA.

It is the contention of Tours and Travel that the default provision set forth in Subsection 6 of the IATA resolution was inapplicable to it because it had never been required to use the reporting procedures of the IATA and was, therefore, not covered by the default regulations of that association. Tours and Travel argues that in order to be in default under the IATA regulations, a travel agency must have failed to comply with the reporting and billing procedures set forth in paragraphs (2) and (3) of the regulations promulgated by that association. Thus, Tours and Travel contends that the evidence supports the jury’s findings that it was not in default on the date in question and that the jury’s verdict is not against the great weight and preponderance of the evidence.

British Airways concedes that Tours and Travel had not used the reporting procedures of the IATA and, therefore, was not required to comply with the reporting and billing procedures of paragraphs (2) and (3) of the IATA regulations. It also admits that the telex message which it sent to the IATA was issued pursuant to the provisions of IATA’s subsection 6 resolution. It is the position of British Airways that since the term “default” is not defined in the IATA regulations, the term should be given its commonly accepted meaning of “a failure to pay financial debts.” •

The claims represented by the British Airways agency debit memos were for commissions received by Tours and Travel with respect to ticket sales to customers who had later changed, cancelled or cashed in their tickets and received from British Airways a refund of the purchase price. Thus, these claims arose not from the failure of Tours and Travel to timely report the ticket sales or to make remittance of the sales proceeds, but rather from subsequent events over which Tours and Travel had no control.

It is the argument of British Airways, however, that since the claims arose from the sale of “transportation documents”, the transactions were within the purview of the IATA regulations imposing a duty on the airline to report a travel agent in default. ’ It further argues that it was authorized to communicate to IATA the fact that Tours and Travel had failed to meet its financial obligations on the date in question, regardless of whether Tours and Travel was “technically” within the purview of the IATA regulations.

Since Tours and Travel was not required to follow the reporting and billing procedures set forth in paragraphs (2) and (3) of the IATA regulations, it did not “fail to remit monies due” as provided in those paragraphs and, therefore, it was not in default under the IATA regulations. Although Tours and Travel may have owed certain sums of money to British Airways with respect to unearned commissions, such indebtedness was not within the scope of the default provision of the IATA regulations. The jury was at liberty to determine from the evidence before it that Tours and Travel was not in default on May 19, 1972, and its finding is not against the great weight and preponderance of the evidence.

It is also the position of British Airways that the trial court erred in denying its motion to receive and file the initial verdict of the jury and that it also erred in instructing the jury to return to the jury room for a reconsideration of its answers to special issues 2 and 3 and in receiving and filing the jury’s reconsidered verdict.

The jury initially found that the default message had been sent with malice but that the action of British Airways in sending the message had been done in good faith. The trial court concluded that these answers were in conflict, and it overruled British Airways’ motion to receive and file the verdict and returned the jury to the jury room for a reconsideration of its answers to those two issues. The jury then changed its answer to the third special issue, finding that British Airways’ actions were not done in good faith, and its verdict with such changed finding was received and filed by the trial court.

British Airways contends that the jury’s initial findings presented merely an “apparent conflict,” which could have been and should have been reconciled by the trial judge. British Airways argues that in rendering its initial verdict, the jury could have determined that British Airways had acted maliciously in sending the message in the sense that it had wished to exert financial pressure in order to coerce Tours and Travel to pay its debts, and that the jury could further have concluded that British Airways believed at that time that it had the legal or contractual right or duty to send the message, and, thus, was acting in good faith. British Airways argues that the issue of good faith was an affirmative defense, which was based upon express provisions in the contract in effect at that time, and that the jury’s affirmative answer to the good faith issue did not negate an essential element of the plaintiff’s cause of action, but rather established its own affirmative defense.

In a libel action the issues of malice and good faith are pertinent to the defense of qualified privilege. A communication on a subject in which the author or the public has an interest or with respect to which the author has a duty to perform to another owing a corresponding duty may constitute a qualified or conditional privilege. In order for the defense to be applicable, the privilege must have been exercised in a lawful manner and for a lawful purpose. Buck v. Savage, 323 S.W.2d 363, 372 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.). Thus, the defense of qualified privilege is available only if the evidence shows that the communication was made in good faith and without malice. Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex.Civ.App.Corpus Christi 1977, no writ). Malice has been equated with “a want of good faith.” Buck v. Savage, supra.

Where the defense of privilege exists in a libel action, the communication is presumed to have been exercised in good faith and without malice. Cooksey v. McGuire, 146 S.W.2d 480, 483 (Tex.Civ.App.—Eastland 1940, no writ). In the case at bar it was the burden of Tours and Travel to establish that the action of British Airways in sending the telex message was prompted or partially prompted by malice or want of good faith. Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 898 (Tex. 1970). Tours and Travel met this burden by offering proof and obtaining a finding that British Airways had acted with malice.

Since the jury found, in response to special issue no. 2, that British Airways acted with malice in sending the telex message, its initial response to special issue no. 3, finding that British Airways had acted in good faith, created a conflict between the two findings. The two findings, considered separately and taken as true, would compel the rendition of different judgments, and the trial court properly returned the jury to the jury room for a reconsideration of the two conflicting findings. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949).

British Airways also contends that the evidence conclusively established that its action in sending the telex was done in good faith and not with malice and that the jury’s findings to the contrary are without legal and factual support in the evidence and are against the great weight and preponderance of the evidence.

A finding of malice may be supported by evidence that a false credit report has been circulated with knowledge of its falsity or with a reckless disregard of its truth and accuracy. Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896 (Tex.1970); 40 A.L.R.3d 1049, 1055. The evidence was in dispute as to whether British Airways had acted reasonably in determining the accuracy of the disputed agency debit memos and the jury could have decided from the evidence that Tours and Travel was justified in refusing to pay the disputed claims until it could be determined that the accounts were accurate. British Airways admitted that Tours and Travel had been placed in default with IATA because it “wanted the debts paid,” and that it knew its action in sending the telex message would cut off all income to Tours and Travel and could ruin the agency’s business. The jury could have concluded from the evidence that British Airways knew the default provision of the IATA regulations did not apply to Tours and Travel, and that with knowledge of that fact, British Airways sent the telex message to IATA solely for the purpose of coercing Tours and Travel to pay the disputed claims. The evidence supports the jury’s finding of malice and its finding is not against the great weight and preponderance of the evidence.

British Airways also attacks the jury’s finding of actual damages, contending that the evidence is legally and factually insufficient to support such finding and that such finding is grossly excessive in amount. British Airways argues that the record shows that Tours and Travel did not sustain any actual loss or expense as a result of the sending of the telex message and that Tours and Travel was not entitled to recover any amount other than such loss as the evidence might show it had sustained as a result of that occurrence.

Dr. William Kretlow, an economic analyst, testified that there was no market for travel agencies and that he had used the capitalization of income method in evaluating the Tours and Travel business. Dr. Kretlow testified that according to his analysis, the value of the business immediately prior to May 19, 1972 was approximately $40,000.00 and that immediately after August 13, 1972, when the default status was “lifted” by British Airways, the value of the business was virtually zero. Dr. Kret-low testified that his analysis was based upon the income tax records of Tours and Travel, its reliance on IATA commissions, its lack of credit and its inability to earn commissions after the default notice had been issued.

The income tax records of Tours and Travel were introduced in evidence. Based upon these records and the testimony given with respect thereto, the jury could have concluded that Tours and Travel had made a profit of $9,000.00 in 1970, that it would have made a profit of $7500.00 in 1971 except for a bad debt, and that in 1972 the year in which the default notice was issued, Tours and Travel lost $10,000.00, and the following year, 1973, it lost $1542.00. In 1974 it reported a profit of $6201.00.

Where a libelous publication has caused damage to a business, such as that involved in the case at bar, there is no set rule for the assessment of damages. Eidinoff v. Andress, 321 S.W.2d 368 (Tex.Civ. App.—El Paso 1959, writ ref’d n. r. e.). If the libeled party’s business is injured as a direct and proximate result of the defamation, evidence concerning the extent of such injury is a proper matter for the jury’s consideration. The amount of compensation is ordinarily a question of fact, and the jury’s determination of the amount of damages will not be disturbed unless an abuse of discretion is shown. Express Publishing Co. v. Gonzalez, 350 S.W.2d 589, 592 (Tex. Civ.App.—Eastland 1961, writ ref’d n. r. e.).

There was testimony that the years 1969, 1970 and 1971 were good years for travel and that a travel agent’s potential for the year 1972 was excellent. There was also testimony that when the commission income of Tours and Travel was “cut off” by the default notice, Tours and Travel was unable to pay the salaries for its clerical employees and was unable to borrow funds to continue the level of its business. There was testimony that commissions which had been earned by Tours and Travel during the default period were not paid promptly and that some • period of time passed before Tours and Travel could bring the financial condition of its business back to its previous level. The jury’s finding has support in the evidence and its verdict will not be disturbed.

In its remaining points British Airways complains that there is no evidence and insufficient evidence to support the jury’s finding of exemplary damages and that the amount of its finding is grossly excessive.

Exemplary damages may be allowed in a libel action where the libeled party establishes the existence of a wilful or wanton act sufficient to support a finding of malice. United Press International, Inc. v. Mohs, 381 S.W.2d 104, 110 (Tex.Civ. App.—Eastland 1964, writ ref’d n. r. e.). The evidence supports the jury’s award of exemplary damages and the amount of its assessment is reasonable in proportion to the amount of actual damages found. Southwestern Investment Co. v. Neeley, 452 S.W.2d 705 (Tex.1970).

In view of the disposition made of the points of error raised by British Airways, it is unnecessary to consider whether the trial court’s judgment may be sustained upon the other theories of recovery alleged by Tours and Travel.

The trial court’s judgment is affirmed.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Ex parte Ralph RODRIGUEZ, Jr.
    No. 18055.
    Court of Civil Appeals of Texas, Fort Worth.
    June 8, 1978.

      Anderson, Martin, Rodriguez & Anderson and Rosendo Rodriguez, Jr., Wichita Falls, for appellant.
    Gene Douglass, Wichita Falls, for appel-lee.
   OPINION

SPURLOCK, Justice.

This is an original habeas corpus proceeding pursuant to Tex.Rev.Civ.Stat.Ann. art. 1824a (Supp.1978). Pending oral argument upon the merits, this court ordered Ralph Rodriguez, Jr. (relator) released from jail upon the posting of a $2500 bond.

The background information is relatively simple. We shall refer to the main parties as husband and wife. Wife filed suit against her husband. By her petition for divorce, wife also sought a temporary restraining order against her husband; wife’s affidavit attached to her petition seeking the T.R.O. was based upon “information and belief”. Said T.R.O. was issued and husband was ordered to appear on April 27, 1978, to show cause why said T.R.O. should not be made a temporary injunction. On April 20,1978, husband was served with the T.R.O. and show cause order. On April 27, 1978, the attorneys for husband and wife agreed to a temporary injunction enjoining husband and wife respectively from committing certain acts against each other. These “agreed orders” were actually signed by the trial court on May 4, 1978. On May 4, 1978 wife filed a motion for contempt of the court’s order “of April 27th”; husband was served that same day and was ordered to appear on May 15, 1978 to show cause why he should not be held in contempt.

Husband and wife both appeared with legal counsel at the scheduled contempt hearing. Husband’s attorney made strenuous objections asserting the husband’s fifth amendment right against self-incrimination; however, opposing counsel called the husband to the witness stand and the trial court said: “Well, let’s put him on the stand and then you can ask him the question.” At the conclusion of the hearing, the trial court found the husband in contempt of court and (1) fined him $100.00; (2) taxed court costs in the amount of $25.00 against him; (3) ordered him to pay an attorney’s fee in the amount of $150.00 to opposing counsel; (4) ordered him confined in jail for 30 days, and (5) ordered him to remain in jail until he paid the fine, court costs, and attorneys fees. After the husband was imprisoned, husband’s attorney initiated this writ of habeas corpus proceeding in this court.

Husband asserts that he should be released because the contempt order is void in that a contemnor can not be held in contempt for acts committed prior to the issuance of the order alleged to have been violated.

Wife’s motion for contempt recites that husband has violated the court’s order of April 27, 1978. In her motion, wife alleges:

“Respondent harasses Petitioner by repeatedly going to her place of employment, her residence, by constant telephone calls, and general harassment of a kind that would cause fear, embarrassment, and humiliation to Petitioner, INCLUDING the act of aggravated kidnapping of wife at gun point.”

The statement of facts clearly indicates that the “kidnapping” incident occurred on April 26, 1978. At the conclusion of the contempt hearing, the trial court said:

“I find that his violation was on April the 26th in regard to kidnapping. . .

In examining the transcript closely, we note that the temporary injunction that husband is charged with violating was signed on May 4,1978. By the terms of the court’s order, the temporary injunction was to be “effective immediately.” We can only interpret this to mean that the court’s temporary injunction was designed only to take effect on May 4,1978. Thus, it is clear that husband was jailed for contempt for an incident that occurred prior to the effective date of the order he was charged with violating.

Contempt arising from the violation of a court order is a constructive contempt. 12 Tex.Jur.2d Contempt § 12 (1960) In a constructive contempt situation, we hold that a person can not be held in contempt for having violated a court order for acts allegedly committed prior to the entry of that order.

Husband next asserts that the court’s temporary restraining order of April 19, 1978, is void because the affidavit forming the basis of its issuance is sworn to on “information and belief”, which is insufficient under Tex.R.Civ.P. 682.

Temporary restraining orders are issued ex parte without an opportunity for the opposing party or his legal counsel to be present or heard. A temporary restraining order is a “writ of injunction” within the meaning of Tex.R.Civ.P. 682. Ex Parte Coffee, 160 Tex. 224, 328 S.W.2d 283, 290 (1959).

Tex.R.Civ.P. 682 provides:
“No writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief.”

Under the rule cited above, affidavits which are based upon “information and belief” are insufficient. Durrett v. Boger, 234 S.W.2d 898 (Tex.Civ.App.—Texarkana 1950, no writ).

The test for the sufficiency of an affidavit is set forth in 2 Tex.Jur.2d Affidavits § 22 at 415 (1959):

“The facts must be set forth in such a manner that if they are falsely sworn to, the affiant may be prosecuted and convicted of perjury; this is the general test applied to determine the sufficiency of an affidavit.”

The necessity for a proper affidavit is particularly important where the affiant is seeking a temporary restraining order, which (if issued) will curtail a person’s freedom to engage in certain conduct. Hopefully, the prospect of a perjury prosecution for false swearing will prevent abuses in the issuance of T.R.O.’s.

Because of the defective affidavit, the T.R.O. “issued” on April 19, 1978, was void from its attempted issuance. Husband’s attorney brought the matter to the attention of the trial court during the contempt hearing. Wife’s attorney attempted to cure the fatal defect at the contempt hearing by having his client swear that the allegations were true and correct. Upon the authority of Wortham Independent School Dist. v. State, 244 S.W.2d 838 (Tex. Civ.App.—Waco 1951, writ ref’d n. r. e.), wife’s attorney apparently contends that he had thus cured the defect so that the “cure” related back to the time of the issuance of the T.R.O. We do not read the Wortham case so broadly. In the case at bar, the attempted “cure” was undertaken at the contempt hearing after the allegedly contemptuous conduct had transpired. Since the T.R.O. was void from the time of its inception, the “cure” would (at most) only make the T.R.O. effective for a period of ten days from the time of the “cure”. We hold that husband was not under any valid court order at the time of the alleged events on April 26, 1978, at Little Mexico Restaurant.

Husband next contends that the order sustaining the motion for contempt and the commitment order pursuant thereto are void because the trial court forced him to take the witness stand, be sworn and forced to testify against himself, despite his lawyer’s assertions of his fifth amendment right against self-incrimination.

At the contempt hearing, husband’s attorney strenuously asserted his client’s right against self-incrimination; however, the trial court overruled these objections and put the husband on the witness stand to testify. As the questioning proceeded, husband’s attorney continued to object, whereupon the trial court said:

“If he doesn’t answer, of course, then I have no choice but to hold him in contempt if he doesn’t explain it, if he doesn’t have a good explanation. It’s his own doing, but go ahead.”

Contempt proceedings are criminal in nature, and this is true regardless of whether they arise out of criminal or civil actions. Ex parte Cox, 133 Tex. 152, 127 S.W.2d 443 (Tex.Comm’n App. 1939, opinion adopted).

The cases of Ex parte Werblud, 536 S.W.2d 542 (Tex.1976) and Ex parte String er, 546 S.W.2d 837 (Tex.Civ.App.—Houston (1st Dist.) 1976, no writ) are controlling. We hold that husband’s attorney properly asserted his client’s right against self-incrimination. Further, husband should not have been sworn and compelled to testify at all.

The husband (relator) is discharged from custody, and he is not liable for the fine, court costs, or opposing counsel’s attorney’s fees imposed by the trial court.


author: MASSEY, Chief Justice. PER CURIAM.

text:
    William Howard STONER, Appellant, v. Willa HUDGINS, Appellee.
    No. 17968.
    Court of Civil Appeals of Texas, Fort Worth.
    June 22, 1978.
    Rehearing Denied July 27, 1978.

      Seay, Gwinn, Crawford, Mebus & Blake-ney and Charles L. Perry, Dallas, for appellant.
    Gray, Whitten & Loveless and John L. Sullivan, Denton, for appellee.
   OPINION ON MOTION FOR REHEARING

MASSEY, Chief Justice.

Our prior opinion in this case, under date of May 25, 1978, is withdrawn, with the following substituted therefor.

In this case Willa Hudgins, plaintiff, recovered a judgment based upon jury verdict for personal injuries and property damage resulting from a collision with an automobile driven by defendant Stoner at a signal-light controlled intersection in the City of Denton. Stoner appealed.

Judgment reversed, with the cause remanded for another trial.

There was no error in the verdict whereby there were jury findings supporting an award of 80% of Mrs. Hudgins’ damages against Mr. Stoner by the judgment. We forego description of the manner in which there was the collision of vehicles driven by the respective parties.

In major part there was no error in the remainder of the verdict. However, we have concluded that there was error as applied to certain elements of damages found by the jury which were an integral part of the totality of the award by judgment.

We copy the entire special issue of which the elements aforementioned comprised a part, with the answers returned by the jury written in:

“SPECIAL ISSUE NO. 19:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate WILLA HUDGINS for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
“Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that you find from a preponderance of the evidence that such other condition, if any, was aggravated by the injuries, if any, which resulted from the occurrence in question.
“Answer separately in dollars and cents, if any, with respect to each of the following elements:
“a) Physical pain and mental anguish in the past.
“ANSWER: $10.000.00
“b) Physical pain and mental anguish which, in reasonable probability, she will suffer in the future.
“ANSWER: $10.000.00
“c) Loss of her earning capacity in the past.
“ANSWER: $3000.00
“d) Loss of earning capacity which, in reasonable probability she will sustain in the future.
“ANSWER: $10.000.00
“e) Loss of her capacity to perform household maintenance services in the past. “ANSWER: $0.00
“f) Loss of her capacity to perform household maintenance services which in reasonable probability she will sustain in the future.
“ANSWER: $5000.00”

Attention is directed to the answers to Sections (c) and (d) of Special Issue 19. The evidence relative to the questions will be later discussed, but these are the answers which, by the evidence, we hold to be without support and to have been answered under the court’s instructions by “no evidence”. Such answers are but a part of the findings upon the ultimate finding — by addition of the elements of damages — of the total of Mrs. Hudgins’ damages. What resulted was what is better described as an “insufficiency of evidence” to support the total of the personal injury damages found than is connoted by the more common expression “so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous”.

The answers to Sections (c) and (d) are segregable from the remainder of the verdict and do not taint the other jury findings. There would be an affirmable judgment if there had been no inquiry upon “earning capacity” because an error in application of credits, later discussed, could be cured by recomputation. Yet the judgment rendered on these and all the other jury findings must be reversed because they are part of the verdict upon the whole of which the court founded judgment and they could not be segregated so that there might be remand for retrial apart from the other damages elements. Furthermore, there is no doubt that Mrs. Hudgins sustained damages because of some loss of earning capacity; it was the amount of the loss which was not calculable because of the absence of evidence. The evidence was not fully developed.

We have concluded that because of the “insufficiency” in the evidence to support the total of the personal injury damages, coupled with the court’s instructions under an erroneous theory of law that the jury should make findings on the elements of damages made the subject of Sections (c) and (d), on which there was “no evidence”, the judgment must be reversed.

The supreme court in the case of Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117, 121 (1959), sets forth in clear language rules applicable to cases involving impairment of earning capacity, as follows:

“The point at issue here is the absence of any evidence which would indicate either the amount of Bonney’s earnings or a monetary measure of his earning capacity prior to the injury. The rule in this jurisdiction is that where a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible. Dallas Consolidated Electric Street Railway Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918; Mclver v. Gloria, 140 Tex. 566,169 S.W.2d 710; Southwestern Freight Lines v. McConnell, Tex.Civ.App., 254 S.W.2d 422, wr. er. ref. This rule requires that a plaintiff introduce evidence from which a jury may reasonably measure in monetary terms his earning capacity prior to injury, unless some reason appears for his failure to do so. The reason for this rule is that although the amount of damages resulting from impairment of a plaintiff’s earning capacity must be left largely to the sound judgment and discretion of the jury, nevertheless the jury should not be left to mere conjecture where facts appear to be available upon which the jury could base an intelligent answer. In this case, Bonney introduced no evidence of the amount of his earnings prior to injury and no evidence that such prior earnings did not represent his full earning capacity. No reason appears for his failure to introduce such proof. Therefore, the trial court erred in instructing the jury that it might take into consideration any impairment to Bonney’s earning capacity, and this cause must be remanded to the trial court for a new trial.”

The statement on the law copied in the above paragraph was likewise copied in Rubner v. Kennedy, 417 S.W.2d 860, 862 (Tex.Civ.App.—San Antonio, 1967, writ ref’d n. r. e.). In Rubner, as in the case of Bonney, and as is likewise true of the case before us, there was preservation of the right to complain of pertinent jury answers on the grounds of “no evidence” and “insufficiency of the evidence”. In Bonney and in Rubner there was order of remand for a new trial.

The evidence relative to Sections (c) and (d) of Special Issue 19 came solely from Mrs. Hudgins. She was age 65 when her injuries were sustained in April of 1974 and was 68 years of age when her case was tried in May of 1977 (she would be 69 years of age as of date of this opinion). Indicated by the evidence is that she had not worked from some date within a year prior to the time she reached the age of 62 (1971) and began to benefit by the benefits to which she was entitled under the federal Social Security Act. From the time she passed her 62nd birthday until the time of the collision resulting in her injuries in April of 1974, she had not worked to earn money.

In other words, so far as the evidence reveals, there was a period of between three and four years immediately prior to the time she was injured in which she had not worked or earned anything.

The evidence does raise the issue of whether she was able to do physical labor immediately prior to her injuries. She did all her own house work and did gardening work which involved digging holes with a spade. Impliedly, she at that time had the physical ability to do the work in which she had skills, to-wit: as a seamstress, including alteration of garments. There was no evidence that during the three or four year period immediately prior to the collision she had put her skills to use in doing seamstress work, or work of any kind.

The following comprises part of the statement of facts upon direct examination of Mrs. Hudgins by her own counsel:

“Q. At any rate, when that store closed up, did you — after that, after ’61 or ’62 at Flow, and then six years with Jim Stone, and then two years with the fellow that bought him out, did you ever then work back out in for the public in a business? Now, I am talking about business establishment?
“A. No, I decided that I would go into my own business, and I converted my garage into a sewing room, and I had just planned to set up when this accident occurred.”

There was not evidence from anyone which provided a “yardstick” or measure for Mrs. Hudgins’ earnings or earning capacity had she been able to work between date of her injuries and date of trial. The same is also true from date of trial into the future, had the disability occasioned by her injuries not been existent. As applied to the period from date of injury to date of trial Mrs. Hudgins appeared to be well informed relative to exactly how much she could earn before there would result the diminution in the amount of Social Security benefits being received. She stated, relative to her discussion with her accountant, that she had talked to him and was fully informed. With such knowledge, nevertheless, she “planned to drop my social Security and really go into it (business in her garage) for at least three years.” There was adequate evidence that because of her injuries Mrs. Hudgins had been unable to do any work after the accident in April, 1974. As already noticed, she was 68 years old in May of 1977 when the case was tried.

It was shown that even before 1962 Mrs. Hudgins was a capable seamstress; that until about 1968 she worked for Jim Stone’s Clothing Store; that after about 1968, when Stone sold the store to another, she continued to work for two more years, or until about 1970 when she would have been 61 years of age and nearing the age of Social Security eligibility. Cessation of work, at least insofar as revealed by the record, began at that time. There was no evidence upon the earnings of Mrs. Hudgins at any time, even the year before she ceased working. The jury, though aware of some earning capacity to be lost, could only speculate upon its value in arriving at answers to Sections (c) and (d) of Special Issue 19.

As applied to others of the points of error presented by Mr. Stoner we hold there was not reversible error presented by any of them, and they are overruled for that reason. There is not occasion for lengthening this opinion in a discussion.

We do take occasion to approve the submission of Special Issue No. 1 in the court’s charge to the jury, it being based upon a suggested submission in Texas Pattern Jury Charges, 5.06d, “Red Light — Broad-Form Submission (New)”, in 1973 Cumulative Supplement to Volume 1. The submission was as follows:

“SPECIAL ISSUE NO. 1.
“Do you find from a preponderance of the evidence that on the occasion in question the Defendant, WILLIAM H. STONER, entered the intersection contrary to law?
“The law requires a driver on University Drive, facing a steady red signal at Alice Street, to stop before entering
the intersection and to remain standing until a signal light indication to proceed is shown, except that after so stopping, he may turn right, after standing until it would appear to a person using ordinary care that the intersection may be entered safely and after yielding the right-of-way to other vehicles.”

While more of the law was written for the instruction of the jury than appears necessary, we are of the opinion, contrary to the contention of Mr. Stoner, that it did not amount to a comment upon the evidence or weight thereof. Even if it was error it was harmless.

In view of the fact, by stipulation, that Stoner had paid, by advance payments prior to the trial, the sum of $5,379.20 to the benefit of Mrs. Hudgins under the provisions of Tex.Rev.Civ.Stat.Ann. art. 3737g, “Advance payment to tort claimants; introduction of evidence,” the trial court, in calculation by which it arrived at the judgment amount, erred by application of the credit to which Stoner was entitled. When § 4 of the article is read in conjunction with § 1, it is obvious that the intention of the legislature was that the term “total damages” as used in § 1 means the total amount of damages to which a claimant would have been entitled by judgment after the application of percentage of contributory negligence operative to reduce the actual damages found by the jury in the calculation of the amount for which judgment would ordinarily be rendered where there had been no advance payments such as those considered in art. 3737g. Under Tex.Rev.Civ.Stat. Ann., Title 1, “General Provisions,” sub. “Construction of Laws,” art. 10, “General Rules,” is provided that a court shall look diligently for the intention of the legislature, keeping in view at all times the old law, the evil and the remedy, in a construction of civil statutory enactments. It is obvious that to construe art. 3737g other than as we have stated above would be to permit unjust enrichment to a claimant if the credit for advancements should be given before the reduction of the amount of the jury finding on damages rather than to the amount of claimant’s entitlement after application of a reduction because of the percent his negligence was found to have contributed to his damages. A narrow verbal construction should not be permitted to vitiate the public policy sought to be served; and especially is this so where the narrow construction discourages rather than encourages the very action which the legislature has sought to foster and promulgate.

We need not outline the method of calculation applied by the trial court, but it resulted in Stoner’s having failed to receive approximately $1,100.00 in credit to which he was entitled by our construction of art. 3737g.

Had the trial court disregarded the findings of the jury on damages made in answer to Special Issue No. 19, §§ (c) $3,000.00 and (d) $10,000.00 (a total of $13,000.00), and had there not been any advancements to Mrs. Hudgins by Stoner, the correct amount to be awarded Mrs. Hudgins by the judgment would have been $28,440.00 by applying the percentage that her negligence contributed to her total damages. And, had the trial court so calculated there would be the necessity, in addition, to grant an additional credit of $5,379.20 (stipulated to have been the total advancement by Stoner by the provisions of art. 3737g), resulting in a judgment in favor of Mrs. Hudgins which we could have affirmed in the amount of $23,060.80. Judgment of the trial court was for $34,536.64, a difference of $11,475.84.

In other words the judgment was excessive by the amount of $11,475.84, upon which amount the 9% interest from judgment date of June 9, 1977, would not be properly assessed.

The calculation erroneously made by the trial court under art. 3737g would constitute subject matter which this court could correct and in so doing would be empowered to reform and render judgment.

Consideration by the trial court of the answers of the jury to Special Issue 19, §§ (c) and (d), would not be a matter which this court could correct. To hold error because of the want of evidence to support the findings, the same being an integral part of the total amount which was the calculable answer to Special Issue No. 19, the ultimate finding to be made by the jury would require a remand of the entire case.

However, should Mrs. Hudgins desire to file a remittitur in the amount of $11,-475.84, this court would have the authority to accept the same, and, upon acceptance, the authority to reform and affirm the judgment rendered below.

Under the circumstances our order must be: Judgment reversed; with the cause remanded for another trial.

SUPPLEMENTAL OPINION ON MOTION FOR REHEARING

PER CURIAM.

Appellee Willa Hudgins has filed her motion for rehearing in the cause, and, subject thereto and in the event it be not sustained has tendered remittitur in the amount of $11,475.84 which the court stated in its opinion of June 22, 1978, it would have the authority to accept, and, upon acceptance, to reform and affirm the judgment of the trial court.

By reason of appellee having filed her motion for rehearing in the cause, the appellant William Howard Stoner filed his motion for rehearing, which was by the clerk of the court accepted and filed. Ap-pellee has filed a motion to dismiss such motion on the ground that it was not timely filed.

The motion to dismiss the appellant’s motion for rehearing is overruled; however, such motion for rehearing is overruled after having been entertained.

Appellee’s motion for rehearing is overruled. The remittitur of $11,475.84 by the appellee, filed subject to her motion, is honored, as follows:

Judgment of this appellate court is that, in view of the remittitur filed by appellee, Willa Hudgins, the judgment of the court below dated 9 June 1977, awarding damages in the amount of $34,-536.64 to Willa Hudgins as plaintiff and against William Howard Stoner as defendant is reformed as to amount; and as so reformed judgment in favor the plaintiff as against the defendant in the amount of $23,060.80, plus costs and plus interest at the rate of 9% per annum from 9 June, 1977, is affirmed. The costs on appeal are adjudged 50% as against the appellant, William Howard Stoner, and 50% as against appellee, Willa Hud-gins.

Our judgment (but not our opinion) of June 22, 1978, is vacated and set aside with judgment as described hereinabove substituted therefor.

No further motion for rehearing in this case will be entertained; none may be filed.


text:
    Genevie STOUT, Appellant, v. INTERNATIONAL INSURANCE COMPANY, Appellee.
    No. 17990.
    Court of Civil Appeals of Texas, Fort Worth.
    June 22, 1978.
    Rehearing Denied July 27, 1978.
    Banner, McIntosh & Dobbs and Ed McIntosh, Wichita Falls, for appellant.
    Whitten, Sprain, Price, Wagner & Edwards and Richard M. Price, Abilene, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a summary judgment rendered in favor of an insurance carrier in a worker’s compensation case.

We reverse and remand.

Genevie Stout (appellant) brought suit against International Insurance Company (the insurance carrier), alleging that she sustained an injury while in the course and scope of her employment with Jacobi IV, Inc. d/b/a Mitchell’s Department Store, in the City of Graham, Young County, Texas. Mitchell’s Department Store is located in a privately owned shopping center.

On June 19,1975, Stout was ready to take her lunch hour; there was no food service within the building where she worked. As she left the building, she went through the only exit available and walked across the concrete apron. In order to leave the concrete apron, it is necessary to step down to the asphalt below. The rampway was a part of and was connected to the building; it had a permanent roofed area over it, which was a part of the building. The roof or overhang extends as far as the concrete apron extends, and the roof entirely covers the concrete apron. On the front portion of the overhang is the “Mitchell’s” sign.

In the past, on special sale days, Stout’s employer had used the apron to display merchandise. On these occasions, Stout and other employees had helped customers and made sales on the concrete apron. Her employer had maintained and cared for the rampway by keeping it swept, keeping it free from ice, and keeping it clean. Also, her employer had exercised the maintenance of the lighting in the roofed overhang area.

Stout fell as she was attempting to step from the concrete rampway to the sloping asphalt surface. Her fall occurred within three feet from the wall of the building.

In regard to summary judgments, Tex.R. Civ.P. 166-A(c) (Supp.1978) provides in part that:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, . . . show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law

It is well established that a defendant moving for a summary judgment assumes the negative burden of showing as a matter of law that the plaintiff has no cause of action against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Seale v. Muse, 352 S.W.2d 534 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.).

By her three points of error, Stout basically contends that the trial court erred in granting the summary judgment because: (1) at least some of the evidence estabished that the injury occurred on premises over which her employer had a joint possessory interest, dominion and control; (2) at least some of the evidence established that the injury occurred at a place of egress in such close proximity to her employer’s premises as to be (for all practical purposes) a part of the premises of her employer; and (3) at least some of the evidence established that her injury occurred on the only access route to be used by an employee, which route was so closely related to her employer’s premises as to be fairly treated as a part of those premises.

By its sole counterpoint, the insurance carrier contends that the trial court did not err in granting it a summary judgment because as a matter of law, Stout was not in the course and scope of her employment at the time she sustained her injuries.

Thus, we are confronted with the question as to whether the insurance carrier sustained its burden of demonstrating as a matter of law that Stout was not in the course and scope of her employment at the time she sustained her injuries.

Our supreme court, speaking through Chief Justice Greenhill in Texas Compensation Insurance Co. v. Matthews, 519 S.W.2d 630 (Tex.1974) wrote:

“The general rule, and it is a well settled rule, is that the benefits of the workmen’s compensation statute do not apply to injuries received going to and from work. (Citing cases.) An exception to this rule is made in cases which have formed the ‘access doctrine,’ — cases in which the employer has evidenced an intention that the particular access route or area be used by the employee in going to and from work, and where such access route or area is so closely related to the employer’s premises as to be fairly treated as a part of the premises. (Citing cases.)”

For further background information on the “access” rule, see Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72 (1922); Dishman v. Texas Employers’ Insurance Association, 440 S.W.2d 727 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.); 1 Larson, Workmen’s Compensation Law § 15.22 (1978).

The case of Kelty v. Traveler’s Insurance Company, 391 S.W.2d 558, 560 (Tex.Civ. App.—Dallas 1965, writ ref’d n. r. e.) deserves special mention, due to its factual similarity with the facts of the case at bar. In Kelty, the plaintiff was an employee of J. C. Penney & Company. Upon returning from her lunch, she parked her car in the parking area at the rear of the store. Due to the bad weather, everything was iced over. Mrs. Kelty proceeded on the sidewalk toward the rear entrance where she normally entered the building. As the court wrote:

“Her sole purpose in entering the building on that occasion was to return to her duties as an employee of J. C. Penney & Company. At a point about ten to twelve feet from the rear entrance she slipped and fell on the icy sidewalk and sustained personal injuries. The sidewalk where Mrs. Kelty fell was immediately adjacent to the J. C. Penney building and was used by the general public and by the employees entering and leaving the store by the back entrance.”

In Kelty, supra, the Dallas court of civil appeals held that whether the employee was within the course and scope of her employment at the time of her injury presented a fact question, which precluded the rendition of summary judgment in favor of the insurance carrier.

Having carefully reviewed the summary judgment proof in the case at bar, we hold that the insurance carrier has not sustained its burden of showing that it is entitled to judgment as a matter of law. In fact, the summary judgment proof before us clearly brings Stout’s injury within the “access” doctrine of our workmen’s compensation law. We sustain each of Stout’s three points of error.

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


author: BRADBURY, Justice.

text:
    Jerry SPENCER et al., Appellants, v. Ron KESSLER, Appellee.
    No. 5184.
    Court of Civil Appeals of Texas, Eastland.
    June 29, 1978.
    Ronald A. Dubner, Dubner, Weinstein & Bell, Dallas, for appellants.
    James E. Coleman, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
   BRADBURY, Justice.

This is an appeal from an order of the trial court granting appellee’s “motion to quash” a “show cause order why a writ of mandamus should not issue”. Appellee, Ron Kessler, is County Chairman of the Dallas County Democratic Party and appellants, Jerry Spencer, Cecil Flook and Ernest Foree, are Precinct Chairmen of the same party. Appellants contend a writ of mandamus should lie because appellee refused to comply with party rules.

The grounds for seeking the writ of mandamus as set forth in appellants’ petition reads:

“Relators would show that the Respondent should be required by the issuing of notice herein to appear in this Court to show cause why a Writ of Mandamus should not issue for the reason that the next meeting anticipated to be called by the County chairman is on Monday, March 20, 1978. That in order that the party business be conducted in accordance with the Statutes of the State of Texas and the Rules of the Democratic' Party of the State of Texas, notice should issue from this Court directing Respondent to appear herein and that a hearing be held accordingly. That because of the successful efforts of the Respondent to frustrate the attempts of the Precinct. Chairmen to call a meeting themselves, the Precinct Chairmen have only the alternative of conducting business at meetings called by the County Chairman. That the March 20, 1978 Meeting is the next regularly called Meeting under the Statutes of the State of Texas; therefore the general business of the Party Executive Committee (in addition to the business required by Statutes) should likewise be permitted to be conducted at that time which would include but not be limited to an accounting of funds, decisions on expenditures of funds and any other business the Committee should, by adoption of an agenda, determine to be necessary to be conducted.”

The prayer in appellants’ brief is as follows:

“WHEREFORE, PREMISES CONSIDERED, Appellants pray that this cause be reversed and remanded for trial on the merits, and the trial be ordered to be held not later than Monday morning, March 20, 1978.”

This appeal is moot. March 20, 1978, having passed, any order requiring appellee to take certain action at a meeting on that date would require an impossible act. Our Supreme Court in Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632 (1946), said:

“A case becomes moot ‘when any right which might be determined by the judicial tribunal could not be effectuated in the manner provided by law.’ Sterling v. Ferguson et ah, 122 Tex. 122, 142, 53 S.W.2d 753, 761 ...”

This case is dismissed. Polk v. Davidson, supra.


author: McCLOUD, Chief Justice.

text:
    George C. VINCENT, Appellant, v. Ben Crave GOODMAN, Appellee.
    No. 5157.
    Court of Civil Appeals of Texas, Eastland.
    June 29, 1978.

      Patrick D. Barber, Colorado City, for appellant.
    Dan Cotton, Snyder, for appellee.
   McCLOUD, Chief Justice.

Plaintiff, Ben Crave Goodman, sued George C. Vincent on an oral contract seeking payment for the drilling and completing of a water well. Vincent answered that Goodman failed to fulfill a guarantee by plaintiff that the water well when completed would be sufficient to pump a full flow through a one-inch column pipe using a ¾ horsepower submersible pump. Plaintiff denied he made any such guarantee. The well, after completion, pumped only a few minutes before going dry. Defendant contended in the trial court the guarantee was a material part of the oral contract. His evidence showed that the well was drilled in an area known to contain abundant water, and the “dry hole” probably resulted from improper completion by plaintiff. In answer to a single special issue, the jury in a 10-2 verdict determined that plaintiff did not guarantee the well as contended by defendant, but that the agreement between the parties required plaintiff to only drill, equip and complete the well. Judgment was entered for plaintiff. Defendant filed a motion for new trial alleging jury misconduct. Following a hearing, the court overruled defendant’s motion. Defendant has appealed. We reverse and remand.

The trial court failed to file express findings of fact and conclusions of law as requested by defendant, but did state in its order overruling defendant’s motion for new trial, “that there was some discussion among the jurors of their own personal experiences concerning the drilling of water wells, but that upon each such occasion they were warned by a juror that they could not consider their personal experiences, and such discussion did not influence the jury verdict.”

One complaining of jury misconduct has the burden to prove not only the overt act of misconduct, but also that it was material misconduct, and from the record as a whole that injury probably resulted. Rule 327, Texas Rules Civil Procedure; Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). Whether misconduct occurred is a question of fact and whether injury probably resulted is a question of law. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944); Pope, Jury Misconduct and Harm, 12 Baylor L.Rev. 355 (1960).

The evidence conclusively establishes that members of the jury discussed their own personal experiences concerning the drilling of water wells.

Defendant called as witnesses jurors Chastain and Early. Chastain testified that several jurors stated they had had previous water well experience and they had never been guaranteed a good water well. He testified further that a lady juror said that she had had personal experience with dry holes and she had to pay for several dry holes before any water was found on her place and that Mr. Vincent should have to pay for his well. He stated that the voting by the jury started out at 7 “yes” and 5 “no” and progressed to 10-2. He testified that the statements by the jurors about their own personal experiences with dry holes, and the statements by the lady that she had had to pay for several dry holes and Mr. Vincent should pay for his, were made after the 7 to 5 vote and before the 10 to 2. He testified the statements were made in that time period when some of the votes were changed. Chastain’s testimony regarding the contents of the statements made was not refuted.

Early stated that several of the jurors had had water wells drilled and they said they always had to pay for the dry holes. He remembered the lady juror stating that she paid for three dry holes before she found any water on her place and that Mr. Vincent should have to pay for his well. He said he thought, but was not sure, these statements were made before any vote had been taken. He stated they were made at the beginning of the discussion. Early testified, “Most — lots of the jurors said that there couldn’t be a guarantee. It was the general consensus in there that the well shouldn’t have been guaranteed.” He stated, “They just said that nobody in his right mind would guarantee a water well.” He added, “A few people said, you know, that anytime you have a well drilled — you have to pay whether it’s wet or dry. It doesn’t matter.” Early further testified that the statement was made that it would be impossible for a water well to be guaranteed. Early’s testimony concerning the contents of the statements made was not refuted.

Plaintiff called as witnesses jurors Bell, Maddux, and Rhodes. Bell, who had apparently been in the courtroom and heard the testimony of Chastain and Early, was asked if he recalled any jurors discussing their personal experiences in having water wells drilled on their respective lands. He replied, “Yes, sir. It’s mostly what’s already been brought up. I discussed my own personal well drilling some and I believe Mrs. Bill Eiland discussed hers some.” The transcript reflects that no person named “Ei-land” served on the jury. Bell stated, “I think I made the statement, if I remember correctly, that we just were supposed to judge this situation or this case on the evidence presented in court. I believe most of them heard me say that.” When asked on cross-examination to tell what personal experiences he discussed in the juryroom, Bell answered, “Well, I discussed two or three wells I had dug and no one ever guaranteed water in those. And in my particular territory I wouldn’t ask a man to guarantee it.”

Juror Maddux answered, when asked if he remembered statements made by several jurors concerning their personal experiences in having water wells drilled on their own land, “I recall several. Mr. Bell told us about what I just heard . . And I suppose everyone of the rest of them sitting there heard the same thing.” Maddux said he heard Bell state that the jury was supposed to go by the evidence and nothing outside of the evidence.

Juror Rhodes testified that she made no statements concerning her personal experiences in having water wells drilled. She stated she did not recall Bell saying they were supposed to decide the qise only on the evidence. She stated she “remembered more about” one of the ladies who “was talking about the water wells.”

There is evidence that juror Bell made the statement that the jury should decide the matter only on the evidence. Juror Rhodes did not recall the admonition. Defendant contends, and we agree, there is no evidence to support the trial court’s statement in the order overruling defendant’s motion for new trial, that upon “each” occasion when the statements were made by jurors concerning their personal experiences in drilling water wells, “they were warned by a juror that they could not consider their personal experiences.”

The issue in the instant case was narrow. Did plaintiff guarantee the well? The record conclusively establishes that “several” jurors discussed their personal experiences in having water wells drilled.

Statements were made by jurors that they had never been guaranteed a good water well. Statements were made that when you had a well drilled, you had to pay whether it was wet or dry. Jurors Chastain and Early each testified, and it was not refuted, that a lady juror stated that she had paid for several dry holes and defendant should pay for his. There is evidence that following the misconduct, the vote of the jury changed in favor of plaintiff. It is apparent from the testimony that the improper statements were not casual or vague general remarks. The testimony shows that several jurors participated in the misconduct. The improper statements were specific and went to the very heart of the controversy. The “rebuke” evidence is inconclusive as to its timeliness, and as to whether the rebuke terminated the improper discussion.

We hold that defendant has established material misconduct which was probably injurious. Judgment of the trial court is reversed and the cause is remanded.


author: McDONALD, Chief Justice.

text:
    ALLIED FINANCE COMPANY, Appellant, v. Carlos I. MIRO, Appellee.
    No. 5843.
    Court of Civil Appeals of Texas, Waco.
    July 6, 1978.
    Rehearing Denied Aug. 10, 1978.
    George E. Bowles and John L. Estes, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellant.
    Phillip A. Pfeifer and Craig Lewis, Fisher, Roch & Gallagher, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Allied Finance Company from an order overruling its plea of privilege.

Plaintiff Miro sued defendant Allied Finance in Harris County on claims for usury and violations of the Consumer Credit Code. Allied filed its plea of privilege to be sued in Dallas County, the county of its residence. Plaintiff controverted asserting venue maintainable in Harris County by virtue of Article 1995, Subdivision 30, and Articles 5069-1.06 and 5069-8.04.

The trial court after hearing overruled defendant’s plea of privilege.

Defendant appeals on one point: “The trial court erred in overruling Appellant’s Plea of Privilege because Appellee failed to introduce any evidence which tended to prove an essential venue fact, namely, that he paid any interest, time price differential, or other charge in excess of the lawful rate to appellant.”

Subdivision 30, Article 1995 provides “Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 5069-1.06 in Subdivisions 1 and 2 prescribes the penalties for usury, and states in Subdivision (3) “All such actions brought under this Article shall be brought in any court of this State having jurisdiction thereof within four years from the date when the usurious charge was received or collected in the county of the defendant’s residence, or in the county where the interest in excess of the amount authorized by this Subtitle has been received or collected, or where such transaction had been entered into or where the parties who paid the interest in excess of the amount authorized by this Subtitle resided when such transaction occurred, or where he resides.”

Article 5069-8.04 similarly provides: “All such actions under this Subtitle, * * * shall be brought * * *, or where the parties who paid the interest, time price differential or other charge in excess of the amount authorized in this Subtitle resided when such transaction occurred, or where he resides.”

Plaintiff proved that he was a resident of Harris County at the time of filing suit; and plaintiff’s petition is clear that plaintiff sues defendant for usury prohibited by Articles 5069-1.02 et seq. and violations of the Consumer Credit Code prohibited by Article 5069-2.01 et seq.

Plaintiff did not prove that he paid or was charged usury.

Defendant asserts in its brief that the sole question on this appeal is whether plaintiff in suit for usury or violation of the Consumer Credit Code, need only prove his county of residence at the time of filing suit in order to retain venue in such county, or whether he must also prove the existence of usury or the Consumer Code violation alleged.

Prior to present Articles 5069-1.06 and 5069-8.04, Article 5073 required a plaintiff in a usury case to prove usury when he sought to maintain venue in a county other than that of the defendant’s residence. See: Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867.

Under Article 5069-1.06 and 8.04 venue is authorized: 1) In the county of the defendant’s residence; 2) In the county where excess interest (or violation) has been received or collected; 3) Or where the transaction was entered into; 4) Or where the party who paid excess interest resided when the transaction occurred; or 5) “Where he resides.” “Or where he resides” refers to the party who paid “excess interest” in 5069-1.06, and refers to the party who paid “excess interest or other charges in excess of the amount authorized” in 5069-8.04; in this case, the plaintiff.

Donald v. Agricultural Livestock Finance Corp., Tex.Civ.App. (Fort Worth) NWH, 495 S.W.2d 592 holds that in a usury case under Article 5069-1.06 (subdivision 3) the plaintiff can sue and maintain venue in the county where plaintiff resides at the time of suit, and that proof of usury is not additionally required.

The Legislature saw fit in 1967 to add the last alternative “or where he resides” to the other provisions of Article 5069-1.06 and 8.04 authorizing venue. They did not make any further requirement and we do not feel authorized to engraft additional requirements.

Defendant’s point is overruled.

AFFIRMED.

      . Emphasis ours.


author: HALL, Justice.

text:
    Delores MILES, Appellant, v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellee.
    No. 5865.
    Court of Civil Appeals of Texas, Waco.
    July 6, 1978.
    Rehearing Denied Aug. 10, 1978.
    John F. Bass and Denny Martin, Burrow & Bass, Dallas, for appellant.
    Wayne E. Lee and Glennis E. Sims, Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellee.
   HALL, Justice.

This is a suit for workmen’s compensation brought by Delores Miles against Commercial Insurance Company of Newark, New Jersey, workmen’s compensation insurance carrier for plaintiff’s employer, Fox and Jacobs, Inc. It was plaintiff’s contentions on the trial that in September 1972, she suffered a disabling low-back injury on the job, that she was hospitalized and treated for the injury, and that as a result of the injury she was totally and permanently disabled within the meaning of our workmen’s compensation laws. Among other defenses relied upon by defendant was its pleaded defense that neither it nor Fox and Jacobs received notice of plaintiff’s asserted injury within 30 days after it allegedly occurred, as required by Article 8307, Vernon’s Tex. Civ.St., for payment of benefits.

Trial was to a jury in March, 1977. The jury found that plaintiff sustained an injury on or about September 14, 1972, in the course of her employment, and that the injury was the producing cause of only total temporary incapacity from September 15, 1972, until December 4, 1972. However, in its answer to special issue number 14, the jury failed to find that plaintiff’s employer had notice of the injury within thirty days after its occurrence. Based upon this finding, judgment was rendered that plaintiff take nothing. Plaintiff appeals.

Special issue number 14 and the explanatory instruction submitted with it read as follows:

“Do you find from a preponderance of the evidence that Fox & Jacobs, Inc., had notice of such injury within thirty days after its occurrence?
“Notice to or actual knowledge on the part of a foreman or other supervisor, or an agent designated by the employer to receive such notice, is ‘notice’ to the employer.
“Answer ‘we do’ or ‘we do not.’ ”

The jury answered the issue “we do not.”

Plaintiff asserts that the evidence conclusively establishes that her employer had notice of her injury within thirty days. Alternatively, she contends the jury’s answer to special issue 14 is against the great weight and preponderance of the evidence.

Plaintiff is a black female. On September 14,1972, the date of her alleged injury, she was 48 years of age. She had been an employee of Fox and Jacobs for five years. She had never suffered an on-the-job injury and had no prior experience with workmen’s compensation claims. Her duties consisted of removing kitchen cabinet doors from a shelf onto a work table, and then sanding the doors and installing hinges on them. Her working hours were from 7:00 A.M. until 3:30 P.M. each day. She testified that about 8:30 A.M. on the day in question when she lifted several cabinet doors at one time from the shelf she felt a sharp pain from her neck down to her low back. She became ill and went to the restroom and vomited. She continued working the rest of the day, with intervals of going to the bathroom for relief, but the pain in her back worsened. That night she could not sleep because of the pain, and her son carried her to the hospital. She was given medication and sent home. The next day she returned to the hospital and was admitted for treatment.

The evidence is undisputed that plaintiff entered Baylor University Medical Center on September 15, 1972, with an admission diagnosis of “acute low back strain”; that she remained in the hospital until October 4, 1972, during which time she was treated for her back problem; that after she left the hospital she received further treatment by her personal physician in his office until December 4,1972, at which time he released her for work and she returned to work with Fox and Jacobs. She continued working there until September, 1974, when she quit her job.

Plaintiff testified that when she left work at the end of the day she hurt her back she told her supervisor, Ken Hopper, “I may not be able to come to work tomorrow because I hurt my back. And he said ‘Okay.’ ” She did not at that time tell him how or when she injured her back, but she testified that in a telephone conversation the next day she told him that she hurt her back when she “pulled too many doors,” and that Hopper’s response was, “Keep in touch with me and let me know how you are doing.” She conceded, however, that in her deposition taken prior to trial she stated that in the telephone conversation “He didn’t ask me [how I hurt my back or when I hurt my back] and I didn’t tell him.” Plaintiff also admitted that she signed some forms denominated at the top “Group Life And Health Insurance Disability Claims” which were furnished to her by her employer, and that she received benefits under them relating to her injury, but she testified that she did not then and does not now understand the difference “between Blue Cross Insurance coverage and Workmen’s Compensation Insurance coverage.”

Ken Hopper testified that he had been employed by Fox and Jacobs for eighteen years, and that on September 14, 1972, he was supervisor of the cabinet manufacturing department in which plaintiff worked. He denied that plaintiff told him on that day that she had hurt her back. He testified that in a telephone conversation the next day “she told me that she was sick and had to see a doctor, and I said, ‘Well, what’s wrong?’ and she said, ‘I’m sick, I have to see a doctor.’ So I said, ‘Call me back as soon as you find out what’s wrong. I would like to know when you are going to be back to work.’ ” He said that a day or two later she called him again “to tell me that she was in the hospital and she had had chest pains, back pains, and stomach pains, and she wanted to talk to personnel about her insurance forms, hospitalization forms. So I transferred her to the personnel department and they took care of it from there on.” He testified that plaintiff never told him that she hurt her back at work, and that the first time he learned she was claiming a job-related injury was more than a year later. Hopper also testified that plaintiff began working for Fox and Jacobs in 1968, that she was a good worker and a regular worker, and that until the time in question she never made any complaints about her back.

In September, 1972, Karen Haviland was employed in the personnel department of Fox and Jacobs as administrator of the employees’ benefits and insurance programs. She testified that on the 20th or 21st of September, 1972, plaintiff called her from the hospital “to inquire about the benefits that she was entitled to. I asked her at that point what was wrong with her. She said she had stomach pains, that she had been vomiting, and that she had some back pain. I inquired of her at that time as to how it happened, and she said, T don’t know.’ At that point, I told her I would be sending her a Blue Cross disability form and gave her the instructions as to how to complete it and that it needed to be mailed back to me and then she would receive weekly disability payments. Nothing was said about her being injured while on the job lifting doors or moving doors or anything of that nature.” Mrs. Haviland said she had two later conversations with plaintiff, but “again, she did not know how it happened or what was wrong with her specifically ... If she had told me specifically at that time that she was lifting doors and hurt herself, it would have been processed as a workmen’s compensation claim.” The witness said she first learned plaintiff was claiming “to have injured her back” in June or July, 1975.

Essie Mae Walker testified that in September, 1972, she was employed at Fox and Jacobs as “overseer of the cabinet door department.” She said that position did not carry the responsibilities of a “lead woman,” but that her duties were to see that each day approximately 240 cabinet doors were completed in the department and ready for use. She said that she first learned that plaintiff “had a back injury” when she returned from a vacation of two weeks.

Vonzela Williams was plaintiff’s co-worker. She testified that she was present when plaintiff injured her back. She said, “We had to go to the rack and pull the doors, and in pulling the doors [plaintiff] managed to pick up too many doors, and I heard her say, ‘Oh.’ I asked her what was the matter and she said, ‘Oh, I hurt my — I pulled my back.’ ” She testified that later, within four weeks after the accident, Essie Mae Walker “came and asked me what had happened. I told her Delores was pulling the doors and she managed to pick up too many doors and said she had pulled her back.” She also said that when plaintiff was in the hospital “we all went to see her out there.”

Ken Hopper testified that Essie Mae Walker was not a “lead woman or overseer, or anything like that,” that she had “no duties or functions or obligations as far as any personal problems that concerned any of the employees or any injuries on the job,” and that she had the same job as plaintiff “with the exception that she was responsible for the flow of materials in that department.”

V. P. Wills testified that he had been employed by Fox and Jacobs for twenty years. In September, 1972, he was supervisor in the paint shop. Plaintiff had previously worked under him. He gave the following testimony: “Q. Were you aware of Delores Miles alleged injury of September 14, 1972? A. When she was injured? Q. Yes. A. Yes. Q. What did you know about her injury? A. Just what I heard. I haven’t seen anything. Q. You did not see her injured? A. No. What I heard, that she had a back injury. Q. Now, when did you hear that she had a back injury? A. I don’t know exactly what month it was, but when I knowed anything she was in the hospital. Q. Well, was it within a month of the time? A. No, it was right after — right after this happened. Q. Was it within a week? A. I believe it was.”

§ 4a of Article 8807, Vernon’s Tex.Civ.St., provides in pertinent part that, “Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under [the Workmen’s Compensation Act] shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury.” The word “injury” as used in this statute has been construed to mean “compensable injury.” Miller v. Texas Employers’ Insurance Association, 488 S.W.2d 489, 492 (Tex.Civ.App.— Beaumont 1972, writ ref’d n. r. e.). Necessarily, then, the word means an injury suffered in the course of employment.

Defendant states in its brief that “it was not disputed at trial that certain supervisory personnel with Fox and Jacobs knew within thirty days that plaintiff was in the hospital experiencing stomach, chest and back pains. However, it was disputed that Fox and Jacobs or defendant had any notice within thirty days that plaintiff was in any way claiming her problems to be work-related.”

Defendant asserts that under the proof a fact question was raised on the issue of notice that plaintiff’s back problem was job-related, and that the evidence was factually sufficient to support the jury’s answer on the question. Plaintiff contends that the uncontradicted testimony of V. P. Wills, who was a supervisor for Fox and Jacobs, establishes without dispute that he knew within 30 days that plaintiff had been injured on the job. Defendant answers that the witness did not testify “that he knew plaintiff was claiming that her alleged injury was work-related,” but only that he knew she was hospitalized with a back injury.

It is our view that the proof does not establish as a matter of law that plaintiff’s employer knew within thirty days that plaintiff’s back injury was sustained at work. Nevertheless, we are convinced that the jury’s failure to find that fact in’its answer to special issue 14 is against the great weight of the evidence.

Although the witness Wills did not testify directly that he knew plaintiff’s back injury occurred on the job, he did relate his knowledge of her injury to some event — he said it was “right after this happened.” Logically, he must have been referring to the occasion when plaintiff strained her back.

Hopper’s testimony shows that he knew within two or three days after the injury that plaintiff, known by him to be a good and regular employee, was in the hospital “with chest pains, back pains, and stomach pains, wanting to talk to personnel about her insurance forms.” The fact that plaintiff’s problems were job-related appear under the evidence to have been known within the department supervised by Hopper. Upon simple inquiry, Essie Mae Walker learned about it approximately two weeks later when she returned from vacation.

Under the whole record we hold the jury’s answer to special issue 14 is contrary to the great weight and preponderance of the evidence. This ruling requires that the judgment be reversed and that the case be remanded to the trial court.

In other complaints, plaintiff assigns error to the court’s failure to give a certain requested special issue, and she questions the legal and factual sufficiency of the evidence to support the jury’s findings on the extent and duration of her disability. Those contentions are without merit under the record and are overruled.

The judgment is reversed and this cause is remanded to the trial court.


author: ROBINSON, Chief Justice.

text:
    Bob KILLEBREW et al., Appellants, v. William BARTLETT, d/b/a Canadian Lumber Company, Appellee.
    No. 8899.
    Court of Civil Appeals of Texas, Amarillo.
    July 10, 1978.

      Sims, Hayes & Lasley, M. Kent Sims, Wheeler, for appellants.
    Jackson & Holder, Floyd D. Holder, Jr., Canadian, for appellee.
   ROBINSON, Chief Justice.

This appeal is from the portion of a judgment denying recovery on a cross action in which it is alleged that plaintiff had charged defendants usurious interest. Affirmed.

William Bartlett d/b/a Canadian Lumber Company sued defendants, Bob Killebrew, Wilbur Killebrew, and Flavius C. Killebrew on a sworn account. Plaintiffs’ Amended Original Petition contains an allegation that the terms of the sale included an agreement to pay interest on the unpaid balance of the account at the rate of one and one-half percent each month. By that pleading plaintiff prayed for judgment for the unpaid balance of the account, interest at one and one-half percent per month from December 3, 1974, (the date of the last payment on the account), attorneys fees, and costs. This Amended Original Petition was superseded by Plaintiffs’ Second Amended Petition, in which the prayer for one and one-half percent per month was omitted and plaintiffs prayed instead for ten percent per annum from December 3, 1974.

Defendants answered Plaintiffs’ Second Amended Petition and brought a cross action alleging that plaintiffs’ suit was “based upon an instrument which would constitute a charge of usurious interest under the laws of the State of Texas.” Defendants alleged that they were entitled to the penalties set out in Tex.Rev.Civ.Stat.Ann. art. 5069-1.06 and prayed for recovery of twice the amount of interest charged to defendant and reasonable attorneys fees. The relevant portion of art. 5069-1.06 provides:

(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.

With exceptions not applicable to the case before us, the maximum permissible rate of interest is ten percent per annum. Tex. Rev.Civ.Stat.Ann. art. 5069-1.02.

The case was tried to a jury which found in response to special issues that plaintiff had not charged defendants interest in excess of ten percent per annum upon its claim. Defendants challenge the legal and factual sufficiency of the evidence to support the jury answers and assert that the record establishes as a matter of law that usurious interest was charged by plaintiff. Defendant has no point of error contending that usurious interest was contracted for or received. Only the question of whether plaintiff actually charged defendants usurious interest is before us.

Defendants contend that the invoice form used by plaintiff in invoicing and billing the goods in question establishes that plaintiff charged usurious interest. The invoices were on a printed form with the following language at the bottom:

“1½% Charged Each Month on Your Unpaid Balance 30 Days After Purchase, 50<f Minimum Charge”

Although the manager of plaintiff Lumber Company testified that the company used this form as a ticket for merchandise, he also testified that it did not intend to charge interest on the account in question and customarily did not charge any interest whatsoever on delinquent accounts. The evidence shows that no amount for interest was ever added to the bills sent to the defendants and that no interest was charged to the defendants’ account on the books of the company.

It should be noted that the superseded Amended Original Petition in which plaintiff prayed for interest at one and one-half percent per month was not offered in evidence. Thus, the prayer was not before the jury for consideration. Although the prayer for interest at one and one-half percent per month in the superseded pleading could have been offered as evidence of a demand for usurious interest, it was not binding on plaintiff as a formal judicial admission waiving evidence on the point. See, Hughes v. Fort Worth Nat Bank, 164 S.W.2d 231, 232 (Tex.Civ.App. 1942, writ ref’d) and 2 McCormick & Ray, Texas Evidence § 1146 (2d ed. 1956).

In contending that the facts before us show a charge of usurious interest, defendant relies on Windhorst v. Adcock, 547 S.W.2d 260 (Tex.1977), a case in which the creditor unilaterally charged to its customer’s open account a one and one-half percent per month finance charge. There the Supreme Court pointed out that the Legislature had described the conditions precedent to recovery under Art. 5069-1.06, i.e., a contract for, charge of or receipt of usurious interest, in the disjunctive. The Court held that the charge of usurious interest alone was sufficient to trigger the statutory penalties. The opinion in Windhorst does not control the facts before us. In Windhorst the creditor actually added an amount for interest to the account each month and demanded payment. In the case before us no amount of interest was added to the account and the evidence does not show any demand for the payment of usurious interest.

We conclude that the defendant has not established as a matter of law that plaintiff charged usurious interest. After considering all of the evidence, we do not find that the refusal of the jury to find that plaintiff charged interest in excess of ten percent per annum was against the great weight and preponderance of the evidence.

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

      . See lower court opinion at 542 S.W.2d 222 (Tex.Civ.App.—Waco 1976) rev'd 547 S.W.2d 260 for a statement of the facts.


author: LUKOWSKY, Justice.

text:
    Herbert Donley BARTRUG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1978.
    Jack Emory Farley, Public Defender, M. Gail Robinson, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
   LUKOWSKY, Justice.

Bartrug was indicted and tried for the murder of his neighbor, Mrs. Thornsberry. The jury returned a verdict of guilty of the lesser included offense of first-degree manslaughter. Bartrug appeals. We affirm.

The evidence demonstrated Bartrug had been drinking on the day of the killing, but that he was not “staggering” drunk and could still make rational judgments. He was sufficiently coordinated earlier in the day to go to the reservoir to shoot groundhogs. In the afternoon he complained to Walker about his neighbors. He then walked up the street where he met Mrs. Thornsberry in front of her home and an argument ensued. Mrs. Thornsberry struck Bartrug knocking him to the ground. Bar-trug said, “I’m going to kill you.” He then shot Mrs. Thornsberry four times in the back. Walker witnessed the shooting and fearing for his safety shot Bartrug. Bar-trug testified he had been drinking during the day and could not remember much of what transpired. He also stated he did not intend to kill Mrs. Thornsberry when he fired the shots, but only to scare her.

Bartrug assigns five errors. Two of the alleged errors were not adequately preserved at trial and this court will not consider them. RCr 9.54(2); McHenry v. Commonwealth, Ky., 490 S.W.2d 766, 767 (1973). Of the three remaining assignments of error two are frivolous and do not merit discussion.

Bartrug submits the trial court should not have bifurcated the elements of the offense of first-degree manslaughter in its instructions to the jury. The trial court’s instructions were divided into nine parts. Parts one through four defined the elements of murder and the various lesser included offenses. Part five dealt with reasonable doubt, parts six and seven submitted Bartrug’s defenses, part eight gave definitions and part nine required a unanimous verdict.

The gist of Bartrug’s complaint is the placement of the explanation of the effect of the mitigation element, “extreme emotional disturbance,” which differentiates first-degree manslaughter from murder in the reasonable doubt part of the instructions, was error. Compare KRS 507.030(1)(b) with KRS 507.020(1)(a). It is obvious why this is proper. To otherwise frame the instructions would result in the jury being required to believe Bartrug acted “under the influence of extreme emotional disturbance” when he killed Mrs. Thornsberry to trigger the mitigating element. This is not what the statute contemplates. Unless the jury believed beyond a reasonable doubt that Bartrug did not act “under the influence of extreme emotional disturbance” he could only be convicted of first-degree manslaughter, not murder. The legislature clearly intended the prosecution to bear the risk of non-persuasion on the element of mitigation. Ratliff v. Commonwealth, Ky., 567 S.W.2d 307 (1978).

In reality what Bartrug is urging the court to do is shift the burden of persuasion to the defendant on the issue of mitigation. This we can not do because the language of the statute makes the absence of “extreme emotional disturbance” an essential element of the offense of murder. Contrary to Bartrug’s argument the instructions to the jury were not confusing. These instructions, when read as a whole, clearly state the issues the jury needed to resolve in a manner which an ordinarily intelligent person may comprehend and no confusion or prejudice resulted therefrom. Conn v. Commonwealth, 245 Ky. 583, 593, 53 S.W.2d 931, 936 (1932); see Turner v. Commonwealth, Ky., 328 S.W.2d 536, 539 (1959).

Bartrug submits the trial court erred by instructing the jury that it may convict him of first-degree manslaughter if it believed beyond a reasonable doubt that he killed Mrs. Thornsberry while acting with intent to cause her serious physical injury. KRS 507.030(1)(a). Bartrug argues that there is no evidence in the record to support such an instruction. “The rule is that if a reasonable inference can be drawn from the evidence that the defendant in a homicide case is guilty of a lesser crime than murder, instructions should be given consistent therewith.” Little v. Commonwealth, Ky., 424 S.W.2d 819, 821 (1967) (emphasis added).

The jury in this case could have entertained a reasonable doubt of Bartrug’s intent to kill Mrs. Thornsberry as a result of his testimony, and could have reasonably inferred that he intended to cause her serious physical injury from his use of a pistol. See Luttrell v. Commonwealth, Ky., 554 S.W.2d 75, 78 (1977). The trial court did not err in its instructions on first-degree manslaughter.

The judgment is affirmed.

All concur.

      . If you believe from the evidence beyond a reasonable doubt that the defendant would be guilty of intentional murder under Instruction # 1 except that you have a reasonable doubt as to whether at the time he killed Yvonne Thornsberry, if he did kill her, he was or was not acting under the influence of extreme emotional disturbance for which there was reasonable justification or excuse under the circumstances as he believed them to be, you shall not find him guilty of murder, but shall find him guilty of first-degree manslaughter under instruction # 2.

      . 507.030 Manslaughter in the first-degree
      (1) A person is guilty of manslaughter in the first degree when: (b) With intent to cause the death of another person; he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (l)(a) of KRS 507.020.

      . 507.020 Murder
      (1) A person is guilty of murder when:
      (a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first-degree or any other crime.

      .507.030 Manslaughter in the first-degree
      (1) A person is guilty of manslaughter in the first-degree when:
      (a) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.