author: SUMMERS, Chief Justice.

text:
    James Lewis ROBERTSON et al., Appellants, v. The ESTATE OF Byron M. McKNIGHT, Appellee.
    No. 1269.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 13, 1979.
    Rehearing Denied Jan. 3, 1980.

      Thomas H. Davis, George M. Fleming, Byrd, Davis & Eisenberg, Austin, for appellants.
    Jack Ritter, Jr., Austin, for appellee.
    C. C. Small, Jr., Small, Craig & Werken-thin, Austin, L. W. Anderson, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for intervenor.
    Before SUMMERS, C. J., and MOORE and McKAY, JJ.
   SUMMERS, Chief Justice.

This is an appeal from an order of the trial court granting the motion for summary judgment of appellee (defendant below).

The case arose out of an aviation accident in which the pilot, Byron McKnight, and his wife and passenger, Amelda Ann McKnight, died. James Lewis Robertson, executor and personal representative of the estate of Amelda Ann McKnight, brought this suit against the estate of Byron McKnight seeking damages for the wrongful death of Amelda McKnight due to the negligence of Byron McKnight as pilot of the accident aircraft. This action was brought pursuant to the Texas Wrongful Death Act, Tex.Rev.Civ.Stat.Ann. arts. 4671 and 4678 (Supp.1979).

The crash of the aircraft occurred near Graford, Texas, on December 5, 1974. Both Byron and Amelda McKnight were residents of Hobbs, New Mexico, having moved there in 1964. They owned a home there, and Mr. McKnight operated a business in Hobbs. The plane was owned by a New Mexico corporation and was based in Hobbs, New Mexico. The pilot, Byron McKnight, held a private pilot’s license issued by the F.A.A. to him in New Mexico. The estates of both decedents are being probated in the District Court of Lea County, Hobbs, New Mexico. In short, the McKnights were New Mexico citizens whose only connection with the State of Texas was the unfortunate incidence of the crash of the aircraft.

The 126th District Court of Travis County granted appellee’s motion for summary judgment holding that Texas, rather than New Mexico law applied, and that the action was barred by the Texas doctrine of interspousal tort immunity. From this adverse ruling, appellants have appealed.

We affirm.

Appellants have predicated their appeal upon three points of error, contending that the trial court erred (1) in granting appel-lee’s motion for summary judgment by failing to apply the law of the domicile of the parties in accordance with established Texas choice of law rules, (2) in applying the Texas doctrine of interspousal immunity because the proper choice of law is that of New Mexico, the state with the most significant contacts with the transaction, and (3) in granting appellee’s motion for summary judgment in that the Texas doctrine of interspousal immunity should not be applied under the facts of this case.

One question presented by this case is whether the law of the domicile of the parties (New Mexico) governs in determining whether the husband’s estate is immune from tort liability to the wife’s estate. This question is of importance to the parties, since New Mexico has abolished interspousal tort immunity regarding acts of negligence, while Texas has not.

In 1886 the Texas Supreme Court adopted the common law doctrine of interspousal tort immunity in the case of Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886). In this case the wife sued her husband and a third person for damages resulting from her false imprisonment. The court held that the main reason not to allow such action was public policy considerations. Nickerson and Matson v. Nickerson, supra at 285. These public policy considerations concern the welfare of the family and the peace and tranquility of the marriage. A suit for personal torts by one spouse against the other would disrupt the marital and family relationships. Donsbach v. Offield, 488 S.W.2d 494, 495-96 (Tex.Civ.App.—Austin 1972, no writ); McGlothlin v. McGlothlin, 476 S.W.2d 333, 334 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); Latiolais v. Latiolais, 361 S.W.2d 252, 253 (Tex.Civ.App.—Beaumont 1962, writ ref’d n. r. e.); 1 O. Speer, Speer’s Marital Rights in Texas sec. 317 (4th ed. 1961).

In 1977, the Texas Supreme Court again had the opportunity to speak on this subject at a time when such immunity was under severe criticism from both the courts and legal scholars. Half of the states had completely abolished the doctrine; Texas, however, through our Supreme Court, refused to go that far. The court, in Bounds v. Caudle, 560 S.W.2d 925, 927 (Tex.1977), abolished the rule in Nickerson concerning interspousal tort immunity only to the extent that it would bar all claims for willful or intentional torts. The court reasoned that in suits such as these, the public policy considerations of peace in the home would no longer be a factor, since the domestic tranquility would have already been strained to the point where an intentional physical attack could take place, and such would not be further impaired by allowing a suit to be brought to recover damages for the attack. Bounds v. Caudle, supra at 927.

The court also held that the doctrine, aside from this exception of willful and intentional torts, should be maintained as a matter of public policy. The court stated:

“We recognize fully the importance of the family unit in our society and that peace and tranquility in the home are endowed and inspired by [a] higher authority than statutory enactments and court decisions.”

Bounds v. Caudle, supra at 927. Thus, the doctrine is still with us today in Texas as to negligent tort actions, rightly or wrongly, and we are bound by it. As stated above, the majority of jurisdictions have either completely abrogated the doctrine or have limited its application, and with the Bounds case Texas falls into the latter category. See Note, 9 Tex.Tech.L.Rev. 659, 673 (1978). Regardless of our inclination on the foregoing, we feel it is the duty of this court to follow the mandates of the supreme court, as expressed in Nickerson and Bounds concerning interspousal tort immunity. Scheffer v. Chron, 560 S.W.2d 419, 423 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.); Warren v. Medley, 521 S.W.2d 137, 139 (Tex.Civ.App.—Beaumont 1975, no writ); Ball v. Gulf States Utilities Co., 123 S.W.2d 937, 940 (Tex.Civ.App.—Beaumont 1939, writ dism’d). It is not up to us to disregard or abolish a doctrine so long entrenched in our jurisprudence, especially in light of the fact that our supreme court felt no need to do so in Bounds.

Generally, actions based on tortious conduct are governed by the laws of the state where the acts occurred. In recent years however, a change has developed in the area of conflict of laws which holds that the law of the domicile of husband and wife controls the question of interspousal tort immunity. Lederle v. United Services Automobile Association, 394 S.W.2d 31, 33 (Tex.Civ.App.—Waco 1965) judgment dismissed and vacated pursuant to compromise settlement 400 S.W.2d 749 (Tex.1966). Approval of this position is found in RESTATEMENT (SECOND) OF CONFLICT OF LAWS sec. 169(2), Comment b, p, 506 (1971).

We feel that the opinion of the court of civil appeals in Lederle still has the force of law. The controversy, by the time it reached the supreme court, was moot; however, when the case was at the civil appeals level, the controversy was still live and jus-ticiable, and only the judgments of the courts below were vacated by the supreme court in Lederle, not the opinion. The supreme court dismissed the cause without an opinion on, or adjudication of, the merits of the controversy by that court. Thus, the appellate court would not retain jurisdiction to decide the controversy after the parties have settled it. See United Services Automobile Association v. Lederle, supra; Railway Exp. Agency v. Spain, 152 Tex. 198, 255 S.W.2d 509 (1953); Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933, 935 (Tex.Civ.App. —Houston [1st Dist.] 1978, no writ); Blandin v. First-Wichita National Bank of Wichita Falls, 398 S.W.2d 663, 664 (Tex.Civ.App.—Fort Worth 1966, no writ).

Notwithstanding this fact, we believe the law of Texas regarding interspousal tort immunity must still be applied in lieu of New Mexico law governing such immunity. The rule by which one state applies the law of another state is one of comity only, and such is exercised having due regard for the rights of its own citizens. Comity is not a matter of right, and being voluntary and not obligatory, the application of the doctrine rests in -the sound discretion of the tribunal of the forum. Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex.Civ.App.—Dallas 1966, writ dism’d) cert. denied 389 U.S. 847, 88 S.Ct. 53, 19 L.Ed.2d 116 (1967). We elect not to recognize the law of New Mexico that abolishes completely interspousal tort immunity, because to do so would contravene the public policy of this state concerning such immunity as expressed by our supreme court, as illustrated in Bounds, supra and Nickerson, supra.

To justify an application of the doctrine or principle of comity, it is generally necessary that the laws of the state where it is attempted to be invoked have a public policy that corresponds to the foreign law, so as not to work an injustice to a citizen thereof. London Terrace, Inc. v. McAlister, 179 S.W.2d 515, 517 (Tex.Civ.App.—Dallas), rev. on other grounds, 142 Tex. 608, 180 S.W.2d 619 (1944); Portwood v. Portwood, 109 S.W.2d 515, 523 (Tex.Civ.App.—Eastland 1937, writ dism’d). To justify a court in declining to enforce a right of action which accrued under the laws of a sister state, because of the policy of our laws, it should appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens. State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 232 (1958). We believe the general interests of our citizens will be offended if New Mexico law regarding interspousal tort immunity would be followed here, and so we refuse to do so.

An additional point should be noted. Appellee in his brief contends that appellants have not complied with rule 184a, T.R.C.P., which allows for judicial notice of the laws of other states, because the law of New Mexico had not been properly presented or properly made part of the record in connection with this case. We disagree.

Rule 184a, T.R.C.P., reads as follows:

“The judge upon the motion of either party shall take judicial notice of the common law, public statutes, and court decisions of every other state, territory, or jurisdiction of the United States. Any party requesting that judicial notice be taken of such matter shall furnish the judge sufficient information to enable him properly to comply with the request, and shall give each adverse party such notice, if any, as the judge may deem necessary, to enable the adverse party fairly to prepare to meet the request. The rulings of the judge on such matters shall be subject to review.”

Appellee insists the law of New Mexico has not been properly pleaded and proved, and, consequently, that we must presume that New Mexico law is the same as Texas law. The record reveals, however, that appellants filed in opposition to appellee’s motion for summary judgment, a memorandum of authorities citing the pertinent New Mexico law. The record further shows that this memorandum was filed and a copy furnished to counsel of record for appellee before the motion was heard. In the absence of any objection to this memorandum for lack of notice, we hold that it was sufficient as a motion requesting the court to take judicial notice of the New Mexico law pursuant to rule 184a, T.R.C.P. A & S Distributing Company, Inc, v. Providence Pile Fabric Corporation, 563 S.W.2d 281, 285 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). The trial court was authorized, and this court is authorized as well, to take judicial notice of the New Mexico authorities cited in the memorandum. This ruling, however, does not alter our disposition of this case concerning interspousal tort immunity in light of the discussion above. Appellant’s first and third points of error are overruled.

Appellants contend by their second point of error that the district court erred in applying the, Texas doctrine of inter-spousal immunity, and that the proper choice of law is that of New Mexico, the state with the most significant contacts with the transaction. Additionally, by way of a supplemental brief, appellants argue the 1975 amendments to the Texas Wrongful Death Act compel the courts to apply the significant relationship approach, and such amendments were intended to operate retrospectively. We disagree.

In this case we have a cause of action that accrued in Texas, and suit has been filed by the appellants in the courts of Texas, under the Texas Wrongful Death Act. They ask us to apply the doctrine of substantial contacts, however, which they argue would lead us to New Mexico law. Clearly the cause of action here was statutory in nature, since an action for wrongful death did not exist at common law. The first wrongful death statute was adopted in Texas in 1860 (Acts 1860, 8th Leg. ch. 35, p. 32, 4 Gammel’s Laws of Texas 1394). The question regarding the application of the substantial contacts doctrine was answered by the Texas Supreme Court in Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979). The court held that Article 4678 compels the application of the lex loci delicti rule only in cases brought on statutory causes of action, and since this article was part of a statutory scheme creating a wrongful death action, such application was mandatory. The court noted that there is a distinction between common law causes of action and those created by statute, and held the application of the lex loci delicti doctrine is permissive only in cases brought on common law causes of action. Collins, supra at 315.

It is true, as appellants point out, that Articles 4671 and 4678 were amended by the Texas legislature effective September 1, 1975, to allow for extraterritorial application of these two articles. The cause of action, in the instant case, accrued on December 5, 1974, the date the fatal airplane crash occurred, and was before the amendments took effect. This being the case, we are obliged to follow the version of the pertinent articles that existed at the time of the accident, as the supreme court did in a similar situation in Collins. The foundation of the action for wrongful death is the act or omission which causes the injury, such action accruing at the instant of death, Missouri-Kansas-Texas R. Co. v. Hamilton, 314 S.W.2d 114, 117 (Tex.Civ.App.—Dallas 1958, writ ref’d n. r. e.); Slate v. City of Fort Worth, 193 S.W. 1143, 1144 (Tex.Civ. App.—El Paso 1917, no writ), not at the time the suit is filed.

The proper application of the articles before the amendments was expressed in Marmon v. Mustang Aviation, 430 S.W.2d 182 (Tex.1968). That case also involved an airplane crash, where Texas residents crashed in Colorado. It was held the law of the place of the crash controls (lex loci delicti). Marmon, supra at 184. See also Click v. Thuron Industries, 475 S.W.2d 715 (Tex.1972); Pratt v. Royder, 517 S.W.2d 922 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.).

Additionally, the 1975 amendments do not have retroactive effect, as appellants contend. This exact question was presented in Gutierrez v. Collins, 570 S.W.2d 101, 103 (Tex.Civ.App.—El Paso 1978) affirmed 583 S.W.2d 312 (Tex.1979); and in Cass v. Estate of Robert E. McFarland, 564 S.W.2d 107, 110 (Tex.Civ.App.—El Paso 1978, no writ). Statutes will not be given retroactive effect in absence of a clearly expressed legislative intent to the contrary. Such intent must appear by fair implication from the language used in the statute. Merchants Fast Motor Lines, Inc. v. Railroad Commission of Texas, 573 S.W.2d 502, 504 (Tex.1978); Coastal Industrial Water Authority v. Trinity Portland Cement Division, General Portland Cement Co., 563 S.W.2d 916, 918 (Tex.1978); Cass v. Estate of Robert E. McFarland, supra at 110. There is nothing in the language used in the amended statute which either plainly states or reasonably implies, that the legislature intended the amendments to operate retroactively.

Furthermore, it has been held that statutes that are procedural or remedial in nature do not come under the constitutional prohibition against retroactive application. Merchant’s Fast Motor Lines v. Railroad Commission of Texas, supra at 504-505; Phil H. Peice Co. v. Watkins, 114 Tex. 153, 263 S.W. 905 (1924); Southwestern Beil Telephone Co. v. City of Kountze, 543 S.W.2d 871, 875 (Tex.Civ.App.—Beaumont 1976, no writ); Boyd v. Dean, 515 S.W.2d 753 (Tex.Civ.App.—Beaumont 1974, no writ). These amendments to Articles 4671 and 4678, however, have been adjudged to be a change in the substantive law, do not therefore fall into the above categorical exception, and thus will not be given retroactive application. Cass v. Estate of Robert E. McFarland, supra at 111. See also Southwestern Bell Telephone Company v. City of Kountze, supra at 875; Penry v. Wm. Barr, Inc., 415 F.Supp. 126, 127 (E.D.Tex.1976). Appellant’s second point of error is overruled.

Finally, a petition for intervention by Ranger Insurance Company was filed with the trial court on July 19, 1978, and an order granting such intervention was signed by the trial judge on July 31, 1978.

The estate of Byron M. McKnight opposed this order, and brought a motion to dismiss the intervention of Ranger Insurance Company to this court, contending that the order of intervention entered by the trial court was improper, since such order was made more than 30 days after its entry of final judgment in this cause, and such being the case the trial court lacked further jurisdiction of the cause.

The record reveals the trial court heard argument by counsel on appellee’s motion for summary judgment on July 22, 1977, and signed the order granting same on June 2, 1978. Such order became final 30 days thereafter. The order permitting intervention was signed on July 31, 1978, more than 30 days after date of judgment. Ranger, having filed its petition to intervene after the case had been tried and disposed of by judgment, the intervention came too late. Campbell v. Jefferson, 453 S.W.2d 336, 340 (Tex.Civ.App.—Tyler 1970, writ dism’d); Mast v. Shipp, 123 S.W.2d 980, 980-81 (Tex.Civ.App.—Beaumont 1939, writ dism’d jdgmt. cor.); Lamb v. Bonds & Dillard Drilling Corporation, 107 S.W.2d 500, 504 (Tex.Civ.App.—El Paso 1935, no writ); Zucht v. Jorrie, 294 S.W. 687, 688 (Tex.Civ.App.—San Antonio 1927, writ dism’d); 1 McDonald, Texas Civil Practice sec. 3.48-b (rev. vol. 1965).

We therefore grant the estate’s motion and dismiss the intervention of Ranger Insurance Company.

In summary, the Texas doctrine of inter-spousal tort immunity will be followed under the facts of this case. Tex.Rev.Civ. Stat.Ann. art 4672 (1952) provides that the wrongful áct or negligence must be of such character as would, if death had not occurred, have entitled the party injured to maintain an action for such injury. In light of the immunity involved here, such action would not have been allowed, and accordingly we affirm the judgment of the trial court.

      . This and all other statutory references are to Texas Revised Civil Statutes unless otherwise noted.


source: Caselaw Access Project

author: HUMPHREYS, Justice.

license: Public Domain

text:
    W_ H_, Appellant, v. Marjorie S. MOORE, Supervisor for Social Service Unit 083, Texas Department of Human Resources, Appellee.
    No. 20088.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 19, 1979.
    Richard A. Beacom, Jr., Greenville, for appellant.
    Frederick C. Shelton, Jr., Greenville, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

ON THE MERITS

This appeal is from an order terminating a mother’s parental rights to two children. In a prior opinion, this court directed the trial judge' to make specific findings of fact under Tex.Fam.Code Ann. § 15.02(1)(D) and (E) (Vernon Supp. 1978-1979). See W_ H_ v. Moore, 589 S.W.2d 830 (Tex.Civ.App.—Dallas, 1979, no writ). The court has now filed findings, concluding that the mother engaged in conduct which endangered the well-being of the children, knowingly placed the children with others who engaged in conduct which endangered the children, and knowingly allowed the children to remain in conditions and surroundings which endangered the children. We overrule the mother’s no evidence points because we find probative evidence to support these findings of the trial judge.

The Department of Human Resources, appellee, first became involved in this case on October 6, 1978, when it received a call .from a hospital emergency room concerning one child, a two-year old girl, who had been severely burned on her buttocks and lower extremities. As a result of these burns, the child was hospitalized for five weeks and she lost the distal portion of four toes. Upon further examination, the doctor determined the little girl had a spiral fracture of her right leg and a deep bruise on her buttock. The other child, a four-year old boy, was brought to the hospital and the doctor found lesions, some secondarily infected, on his trunk and buttock area, which appeared to have been made by a looped extension cord, and a more recent injury, a deep bruise, on the buttock. The Department took custody of the children by emergency order, and later petitioned to terminate the mother’s parental rights based on sections 15.02(1)(D) & (E). Both children are illegitimate and each father has relinquished his parental rights.

The mother argues that there is no evidence to support the court’s findings. We disagree. A doctor who treated both children in the hospital testified that the inju-nes to the little boy were more severe than a “discipline whipping,” that most of the injuries were about two weeks old, and that they should have been treated earlier. The mother and a case worker testified that the little boy’s injuries were inflicted by the mother’s boyfriend while she was at work. The mother also testified, however, that some of his marks- were' made when both she and her boyfriend had whipped the boy. Furthermore, she stated that she had noticed the injuries, but did not obtain medical treatment for the boy or even request that her boyfriend refrain from “disciplining” the child. On the contrary, she continued to leave her children with the boyfriend.

The doctor also testified that the little girl’s broken leg was the result of a twisting motion of considerable force. Although the mother testified that the little girl had stumbled on the way to the store, the doctor testified that it was unlikely that this injury could have been caused by a fall. Again, the mother failed to obtain medical treatment for the child. With respect to the bruise on the little girl’s buttocks, the mother testified that it was caused by the boyfriend when he hit the child with a shower shoe with 'gravel in it while the mother was at work. As to the -burns, the mother testified that the boyfriend admitted that they were caused when he scalded her with hot water, although he stated he was attempting to soak her injured leg. Additionally, another case worker and the doctor testified that the girl was extremely withdrawn and would not cry when first brought to the hospital.

Although most of the children’s injuries occurred while the mother was at work, the evidence reveals that she knew about the injuries, other than the scalding, and continued to leave her children with the boyfriend. This evidence supports the findings of the trial court. Our conclusion is not altered by the testimony of two neighbors that the mother was a good mother and the fact that the mother attempted to treat the injuries.

The mother cites Higgins v. Dallas County Child Welfare Unit, 544 S.W.2d 745 (Tex.Civ.App.—Dallas 1976, no writ) and Shapley v. Texas Department of Human Resources, 581 S.W.2d 250 (Tex.Civ.App.—El Paso 1979, no writ), but these cases are distinguishable. In Higgins the evidence concerning the injuries and the time they were inflicted was uncertain, and in Shapley the court stated that the mother, who had taken her child to the hospital herself, had probably delayed a short time due to the fear of the father. In our case, the injuries and control of the children are established and there is no evidence that the mother did anything to prevent injury to her children.

Affirmed.


author: OPINION MASSEY, Chief Justice. SPURLOCK, Justice,

text:
    Wanda Jean HIGGINS v. The STATE of Texas.
    No. 18290.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 20, 1979.

      Daniel E. Hollifield, Fort Worth, for appellant.
    Tim Curry, Crim. Dist. Atty., Tarrant County, and Joe C. Lockhart, Asst. Dist. Atty., Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Pursuant to a sworn application for temporary hospitalization filed by her husband, and following a hearing before the trial court without a jury, Wanda Jean Higgins was committed to the Wichita Falls State Hospital for a period of not more than ninety days.

By her appeal Mrs. Higgins contends that the County Court at Law No. 2 lacked the .jurisdiction to hear the application, and that, consequently, the order of commitment is void.

We affirm.

Is the County Court at Law No. 2 of Tarrant County a “probate court” for the purposes of the commitment ordered? If it is, the court had jurisdiction to hear the application for temporary hospitalization of Mrs. Higgins and lawfully issued her commitment order.

The Mental Health Code, Tex.Rev.Civ. Stat.Ann. art. 5547-31 (1958) “Application for Temporary Hospitalization” provides that an application for temporary hospitalization is to be filed in the “county court” of the county in which the person to be committed resides or is found. Tex.Rev. Civ.Stat.Ann. art. 5547-11 (1958) “County Court, Probate Court, . . .” provides that: “[T]he term ‘county court’ is used in this Code to mean the ‘probate court’ or the court having probate jurisdiction . . .” (Emphasis added.)

Tex.Rev.Civ.Stat.Ann. art. 1970 — 62.2 (Supp.1978-79), which created the County Court at Law No. 2 of Tarrant County, states in part:

§ 2 “(b) The County Court at Law No. 2 of Tarrant County has the general jurisdiction of a probate court within the limits of Tarrant County, concurrent with the jurisdiction of the County Court of Tarrant County and the Probate Court of Tarrant County in such matters and proceedings. It shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and habitual drunkards, grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons, minors, idiots, lunatics, persons non compos mentis and habitual drunkards, including the settlement, partition, and distribution of estates of deceased persons, lunacy proceedings and the apprenticing of minors as provided by law.”

Art. 1970-62.2 § 2(b) specifically grants the County Court at Law No. 2 of Tarrant County the jurisdiction of a probate court. The second sentence of the section clearly gives the County Court at Law No. 2 of Tarrant County the power to consider an application for temporary hospitalization, and the first sentence of the section provides that the jurisdiction of the Probate Court of Tarrant County and the County Court at Law No. 2 of Tarrant County is to be concurrent.

The County Court at Law No. 2 of Tar-rant County is a “probate court” or “the court having probate jurisdiction” within the meaning of Tex.Rev.Civ.Stat.Ann. art. 5547-11 (1958). It has the jurisdiction to issue temporary commitment orders like the one which committed Mrs. Higgins.

SPURLOCK, J., concurs.

SPURLOCK, Justice,

concurring.

I concur with the majority in this case. Because of the complexity of the statutes granting jurisdiction to various courts which handle involuntary commitments, and in the statute creating the County Court at Law No. 2 of Tarrant County, it is my opinion that it is necessary for me to clarify the rationale behind this decision.

Pursuant to a sworn Application for Temporary Hospitalization filed by her husband, and following a hearing below before the trial court without a jury, Wanda Jean Higgins was committed to the Wichita Falls State Hospital for a period of not more than ninety days as provided in the Texas Mental Health Code, Tex.Rev.Civ.Stat.Ann., art. 5547-1, et seq. (1976).

By her appeal Mrs. Higgins contends that the County Court at Law No. 2 of Tarrant County is not a “probate court” and therefore lacked the jurisdiction granted by Tex. Rev.Civ.Stat.Ann., art. 1970a-l (1957) to entertain applications for temporary hospitalization. Consequently, she argues that the order of commitment is void.

Is the County Court at Law No. 2 of Tarrant County a “probate court” and therefore empowered to hear and determine the application for temporary hospitalization? I would answer yes.

Because the court below is a specially created statutory court, the answer to this question requires a careful examination of the Texas Constitution, of the Mental Health Code, of art. 1970a — 1 and related laws, and of the statute creating the court whose jurisdiction is challenged, i. e., Tex. Rev.Civ.Stat.Ann. art. 1970-62.2 (Supp. 1978-79). All reasonable intendments are to be indulged in favor of jurisdiction. Reinarz v. Griner, 401 S.W.2d 274 (Tex.Civ.App.—Austin, 1966, no writ).

The judiciary provisions of the Constitution create two types of trial courts (district and county) with distinct jurisdictions in civil, criminal and probate matters. Tex. Const. art. V, §§ 1, 8, 16. The Legislature is also empowered to create other courts sharing these jurisdictions. Tex.Const. art. V, § 1. Tarrant County Court at Law No. 2 is such a court and has civil jurisdiction limited by amount in controversy to $5,000.00. It has “the general jurisdiction of a probate court”. Tex.Rev.Civ.Stat.Ann. art. 1970-62.2 (Supp.1978-79).

In addition to these grants of authority the Constitution gives the Legislature the power to provide that the “County Court” may commit mentally ill persons for a period of not more than ninety days. Tex. Const, art. I, § 15. This is a jurisdictional grant independent of those in Art. V of the Constitution. It is the basis for the commitment provisions of the Mental Health Code. Ex Parte Giannatti, 189 S.W.2d 191 (Tex.Civ.App.—San Antonio 1945, no writ). Tex.Rev.Civ.Stat.Ann. art. 5547-31 (Supp. 1978-79) provides that an application for temporary hospitalization be filed “with the county court”.

Tex.Rev.Civ.Stat.Ann. art. 5547 — 11 (1957) defines “county court” as including “[t]he ‘probate court’ or the court having probate jurisdiction”. However, this is a definition, not a grant of authority. The grant of mental illness jurisdiction occurs in two places, in art. 5547-31 to the constitutional county courts, and in art. 1970a — 1 to probate courts. Article 1970a-l was passed in the same legislative session as the revised Mental Health Code in the exercise of the Legislature’s power to create “other courts” and to prescribe their jurisdiction, found in Tex.Const. art. V, § 1. In art. 1970a-l the Legislature gave to “Probate Courts” jurisdiction “concurrently with the County Courts” over three matters: (1) proceedings under the Mentally Retarded Persons Act, Tex.Rev.Civ.Stat.Ann. art. 5547-300, et seq. (Supp.1978-79); (2) proceedings for the commitment of mentally ill persons, Tex. Rev.Civ.Stat.Ann. art. 5547-31 (Supp.1978-79); and (3) proceedings involving tuberculosis, Tex.Rev.Civ.Stat.Ann. art. 4477 — 11, §§ 9, 13 (1976).

An examination of each of these acts reveals that, like the Mental Health Code, jurisdiction over these proceedings is placed in the constitutional county court: Tex.Rev. Civ.Stat.Ann. art. 5547-300, § 37 (Supp. 1978-79); Tex.Rev.Civ.Stat.Ann. art. 4477-11, §§ 10, 13 (1976).

Now, Tarrant County Court at Law No. 2 has civil jurisdiction concurrent with both the county court and the district court, but this civil jurisdiction is dependent upon an amount in controversy. Tex.Rev.Civ.Stat. Ann. art. 1970-62.2, § 2(c) (Supp.1978-79). This will not support jurisdiction in the instant case. Similarly, the constitutionally granted probate jurisdiction of the constitutional county court is not involved in commitment proceedings of the riientally ill or the mentally retarded. The constitutional county court’s jurisdiction derives from independent grant in such matters. However, the Legislature can, under Tex.Const. art. V, § 1 create other courts and fix their jurisdiction. It has done so in the creation of “Probate Courts” which are not otherwise provided for in the Constitution. And in art. 1970a-l it has given those probate courts jurisdiction in cases involving the commitment of the mentally ill, the mentally retarded, and the tubercular.

Such proceedings are within the jurisdiction of “probate courts”. Is Tarrant County Court at Law No. 2 such a court? It is. It has been granted “the general jurisdiction of a probate court”. Tex.Rev.Civ.Stat. Ann. art. 1970-62.2, § 2(b) (Supp.1978-79). It is well settled in Texas that a “probate court” is a court of “general jurisdiction in all matters relating to the administration of estates of deceased persons”. Buss v. Smith, 125 S.W.2d 712, 714 (Tex.Civ.App.—El Paso 1939, no writ); and see English v. Cobb, 23 Tex.Sup.Ct.J. 114, 593 S.W.2d 674 (Dec. 12, 1979) (citing Tex.Prob.Code, § 5) (Supp.1978-79). The grant of probate jurisdiction to County Court at Law No. 2 is a direct quotation of all of the probate powers listed in Tex.Const. art. V, § 16. It shall “transact all business appertaining to deceased persons . . . including the settlement, partition and distribution of estates of deceased persons . . . .” Tex. Const, art. V, § 16; see Tex.Rev.Civ.Stat. Ann. art. 1970-62.2, § 2(b) (Supp.1978-79).

Consequently, County Court at Law No. 2 possesses general jurisdiction over estates of deceased persons and is a “probate court” as that term is understood in Texas. Buss v. Smith, supra; English v. Cobb, supra; see also Tex.Prob.Code § 3(e) (Supp.1978-79).

Since the court below is a probate court it is also possessed of all of the additional jurisdiction granted to “Probate Courts” by the Legislature in art. 1970a-1 and specifically jurisdiction in cases of the commitment of the mentally ill. Tex.Rev.Civ.Stat. Ann. arts. 1970a-l (1957) and 5547—1, et seq. (1976).

I concur.

      . There has been a proliferation of these special purpose type of statutory courts in recent years giving them a variety of criminal, civil, probate and even domestic relations jurisdiction. With the end of the 1979 session of the 66th Legislature there are now 57 county courts at law with probate jurisdiction in 40 counties.

      . Art. 4477-11 was amended by the Legislature in 1977. Tex.Laws 1977, ch. 282, § 7, p. 752. These amendments do not affect the jurisdiction of the county courts in regard to tuberculosis commitments.


author: LESTER, Judge.

text:
    HUSMAN SNACK FOODS COMPANY and Fireman’s Fund Insurance Company, Appellants, v. Linda Sue DILLON, Widow of Marvin Bruce Dillon, Jr., Individually and as Natural Parent and Guardian for Marvin Bruce Dillon III, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Dec. 7, 1979.
    Bernard J. Blau, Jolly, Johnson, Blau & Parry, Newport, for appellants.
    Lionel Hawse, Landrum, Patterson & Dickey, Lexington, for appellees.
    Before HAYES, C. J., and LESTER and WINTERSHEIMER, JJ.
   LESTER, Judge.

On April 15, 1976, Marvin Bruce Dillon was fatally injured in an automobile accident while attempting to return to his house in Paris, Kentucky, from the Beverly Hills Supper Club in Southgate. Dillon made his living distributing Husman Snack Foods in the Lexington area. He had gone to Beverly Hills to attend a sales meeting sponsored by Husman. The Workmen’s Compensation Board awarded benefits' to Dillon’s . widow, Linda Sue, on behalf of herself and her infant child. Husman appeals from the judgment of the Bourbon Circuit Court that affirmed the decision of the Board.

Husman denies that it has an obligation to compensate Dillon’s dependents under the Workmen’s Compensation Act. Hus-man, in support of this position, maintains that Dillon was an independent contractor not an employee, and that, notwithstanding Dillon’s status, he did not die of a work-related injury. We affirm.

Husman manufactures and sells snack foods. In the spring of 1975, Husman began to develop a market in the central Kentucky area. This expansion prompted Husman to hire a District Sales Manager, Tom Abel, and four route salesmen. Hus-man employed Dillon as one of the route salesmen. Dillon drove a Husman truck and supplied the stores on his route with Husman goods. Husman claims that it hired these route salesmen on the understanding that after a period of time, they would become independent contractors. According to Husman the change in their status occurred on February 11, 1976. Their jobs remained basically the same. They continued to deliver Husman products to the stores that they serviced. However, they did incur greater personal responsibilities and instead of a salary they received a commission. The commission represented a sizeable increase in their income.. They could also solicit new customers.

Ratliff v. Redmon, Ky., 396 S.W.2d 320 (1965), listed nine factors relevant to the inquiry of whether a claimant should be categorized as an employee or an independent contractor. Husman uses an analysis of each one of these elements in an effort to characterize Dillon as an independent contractor.

Husman asserts that Dillon engaged in the distinct occupation of an independent distributor that involved buying products from Husman and selling these items to retail stores. Husman did not deduct for federal and state taxes from Dillon’s check, •although it did deduct for social security. Dillon had to file tax returns as a self-employed individual. On cash sales, Dillon deposited the money in a personal bank account prior to remitting the amount to Husman.

Husman urges that Dillon’s independent distributor status required some specialized skill. However, Husman has not pointed out what Dillon did differently after his transformation from employee into independent distributor, other than to imply that Dillon would have needed to learn better sales techniques.

Husman contends that Dillon supplied most of the tools of his trade. Husman set up a plan whereby Dillon would eventually purchase the Husman delivery truck. Hus-man subtracted periodic payments on the truck from Dillon’s commission. Record title remained with Husman until Dillon had furnished the entire $2,000 price. Dillon’s name appeared on the truck as distributor. Dillon bought the gas and took care of the maintenance. Dillon incurred the cost of insurance which Husman carried on a fleet plan. Dillon procured the license tags. Husman explained that on Dillon’s death, it took the truck back without payment, because the damage exceeded Dillon’s equity and that Dillon had to absorb the loss for damage to the truck.

Although Husman focuses primarily on Dillon’s purported purchase of the truck, it also notes that Dillon made expenditures on other equipment connected with his job. Dillon paid for half the rental of his uniform. His uniform had both Husman’s and his name on it. Dillon bore the loss on merchandise that he damaged; but, Hus-man gave him credit for products damaged through no fault of his own and products that he returned. The parties disputed whether Husman or Dillon bought the two-wheel hand cart. In contrast, Husman did supply order blanks, sales tickets and display racks. Husman also rented the warehouse where Dillon picked up the snack ' foods.

Husman emphasizes the lack of control and supervision over Dillon. Dillon could work a flexible schedule. His hours depended largely on the time it took to make his rounds as regulated by the preference of the customer stores. Husman contests the finding of the Board that Dillon had to arrive at the warehouse on certain days to unload the items that he had ordered. However, we believe the Board had an adequate basis for this finding. The evidence shows that more than personal incentive motivated the route salesmen. Mrs. Dillon testified that Tom Abel had phoned for Dillon at home on an occasion when Dillon did not reach the warehouse punctually. Even though Dillon exercised a measure of independence in the performance of his duties, Husman let him know that it was checking his progress. Dillon did not have the freedom of operation of someone who had bought outright goods from the manufacturer for the purposes of resale.

Husman points out that it informed Dillon at the outset that his employment would terminate and that he would function as an independent distributor. Hus-man put on proof which indicated that it desired to place Dillon in the posture of an independent contractor. However, an employer cannot by contrivance force an employee to work outside the protection of the Workmen’s Compensation Act, even if the employee acquiesces in the employer’s terms.

The application of the test for distinguishing an independent contractor from an employee favors the employee-employer relationship; also the problems of differentiation would not arise if all the indicators lined up on one side or the other. Ratliff, supra. Ratliff, supra, adopted for Workmen’s Compensation the method devised in Restatement (Second) of Agency § 220 of recognizing the characteristics of an employee for the purposes of vicarious tort liability. Chambers v. Wooten’s IGA Foodliner, Ky., 436 S.W.2d 265 (1969), refined the test to better serve the objective of workmen’s compensation. Chambers, supra, at 266 states that the predominant considerations are

the nature of the work as related to the business generally carried on by the alleged employer, the extent of control exercised by the alleged employer, the professional skill of the alleged employee, and true intentions of the parties.

Larson, in his text Workmen’s Compensation Law § 43.51 (1978), wrote that the treatment of the claimant’s work in relation to the regular business of the employer as the dominant factor in the decision of whether the claimant is an employee, fulfills the theory of risk spreading embodied in compensation. Larson describes the proposition in this fashion:

The theory of compensation legislation is that the cost of all industrial accidents should be borne- by the consumer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection. Larson, Ibid.

The Board found that Husman fixed the prices on all products and ran the specials and sales. Husman suggests, in its brief, that because federal regulations require it and its distributors to adhere to a uniform pricing policy that this marketing factor should not have influenced the Board. But, on the contrary, price control is a relevant consideration. Husman has the ability to structure the prices of its products to include the costs of production. Dillon could not pass the cost of his compensation insurance on to the outlets that he kept supplied with Husman snack foods. Husman had the only opportunity of building into the price of its merchandise the cost of the route salesmen’s workmen’s compensation. Therefore, when we look to the nature of Dillon’s work in relation to the distribution of Husman products, we conclude that this work formed an inseparable part of the regular business of Husman. Other of the indicia contained in Chambers, supra, point to the relationship of Husman and Dillon as one of employer-employee. Husman maintained supervisors who sought out new customers. Sometimes these supervisors would modify the distributor’s route to better accommodate existing and new business. The larger accounts paid Husman directly, not the route salesmen. These factors buttress the Board’s decision that Dillon was an employee of Husman within the meaning of the Act.

Because we agree with the Board that Dillon worked for Husman as a covered employee, we next address the issue of whether Dillon died in a work-related accident. In our opinion, the Board had a sufficient foundation on which to base the finding that Dillon died during the scope of his employment.

Husman arranged the meeting at Beverly Hills so that management could communicate with the people in the sales department and apprise them of promotions and new products. The program followed the format of a cocktail hour, a dinner and a sales meeting. Husman paid for the evening. The agenda of the sales meeting contained admonitions to the route salesmen concerning cooperation with other employees, hard to sell items, a pretzel promotion, and sales motivation.

Spurgeon v. Blue Diamond Coal Co., Ky., 469 S.W.2d 550 (1971), discusses the circumstances that connect a partially social activity to employment. Spurgeon, supra, accorded significance to the degree of compulsion the employer exerted on the employee to attend and the benefit the employer derived from the event. Husman notes that it did not require Dillon’s presence as a job condition. The Board found that Husman did not force the distributors to come that night, but that Husman did strongly advise attendance. A sufficient evidentiary basis exists for this finding. Spurgeon, supra, takes into account the realities of a recommendation by an employer that an employee go to a company affair; an employer does not have to command the employee’s appearance. The subject matter of the sales meeting here demonstrates that Hus-man expected the distributors to be present. Husman organized the function in furtherance of a substantial business purpose. We believe the claimants have established the job relatedness of the meeting at Beverly Hills. Annotation Workmen’s Compensation: Injury Sustained While Attending Employer-Sponsored Social Affair As Arising Out Of And In The Course Of Employment, 47 A.L.R.3d 566 (1973).

It stands to reason that since Dillon went to Beverly Hills in performance of his duties with Husman, his accident while driving home occurred during the course of a special errand for his employer. The trip to Beverly Hills exposed Dillon to the hazards of the road that he would not have otherwise encountered. The “going and coming rule” does not apply because the travel itself involved a mission for Husman distinct from commuting back and forth to a fixed place of employment. Spurgeon, supra.

The judgment is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    Thomas E. REDD, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 7, 1979.

      Jack Emory Farley, Public Advocate, Erwin W. Lewis, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
    Before HOWARD, HOWERTON, and WINTERSHEIMER, JJ.
   HOWERTON, Judge.

Redd appeals from a conviction for robbery in the first degree and a fifteen-year sentence imposed by the Christian Circuit Court. He alleges that he was denied a fair trial because of the admission of improper character evidence and because of improper identification procedures in and out of court.

Redd was supposedly observed in a Minit-Mart in Hopkinsville, Kentucky, on three occasions on August 10, 1978. The third time he entered the store, he fired one shot over an attendant’s head. The attendants, Donnie and Bonita Malone, entered a cooler for safety and set off an alarm. A Hop-kinsville police detective investigated the incident, and the Malones immediately participated in the drawing of a composite ' sketch of the suspect with the help of another police officer.

The first identification by the Malones came when the detective separately showed them seven photographs he had compiled for another incident. The detective suspected Redd of being involved, and the group included his picture. Both attendants identified Redd as the person who had robbed them. The second identification of Redd occurred when the Malones saw him in a “hold-over” area when they attended a preliminary hearing.

At trial, the Commonwealth used .only three witnesses — the Malones and the detective. The Malones testified that they recognized Redd from his “facial features” which included sideburns, a beard, and a mustache. The evidence indicated that the heaviness of the beard or goatee varied between the time of the robbery, the time the photograph was taken, the time Redd was viewed in the hold-over and the time of trial; but the Malones appeared certain at all times that Redd was the one who robbed them. The detective testified that the identification photographs were “mug shots taken from past incidents.” Redd’s objection was overruled. They were admitted into evidence. The detective also testified that the photo display presented to the Mal-ones was a pack “taken from another armed robbery that I worked on earlier.” Redd again objected and moved for a mistrial. Both were overruled.

Redd presented several alibi witnesses and also testified on his own behalf. During cross-examination, Redd voluntarily stated that he had been arrested for another charge and had served three years in the penitentiary. Redd gave this information while explaining why he had been out of work for a period of time and why it was difficult to obtain regular work.

When we review this case as a whole, we can only conclude that there is more than mere prosecutorial overkill. Some of the' errors complained of were unnecessary, prejudicial, and reversible. Despite the apparent reliable and positive identification of Redd as the perpetrator of the offense, he did not receive a fair trial, and for the sake of the law, a new trial must be granted.

Redd alleges that the identification procedures at trial and prior to trial were improper. Redd also argues that improper character evidence was presented against him through the use at trial of “mug” shots and the admission of evidence regarding his prior crimes.

We find nothing reversible about the pretrial identification procedures. The Mal-ones had seen Redd three times on the day of the robbery. They were able to create a composite likeness of him, and both of them positively identified him from photographs and an in-person viewing, both of which occurred shortly after the incident. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Some of the facts pertaining to the out-of-court identification were properly used to support the in-court identifications by the Malones. Colbert v. Commonwealth, Ky., 306 S.W.2d 825 (1957).

We must conclude from the record that the identifications were adequately free from influences and suggestions calculated to induce a fancied recognition. This is true despite the fact that the identifications came from “mug” shots, a police package for a similar crime, and a viewing in a “lockup.” Each of these methods is sometimes necessary and unavoidable. Each is permissible, unless it is presented in such a manner as to be too suggestive. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967). We find no reversible error in the fact that the witnesses viewed Redd in the “lockup” at a time prior to the appointment of counsel. Shanks v. Commonwealth, Ky.App., 575 S.W.2d 163 (1978). The “lockup” viewing was without suggestiveness, and it was apparently accidental. The identification occurred after arrest but before formal charges were made.

Based on our review of the record, we cannot say that any of the identifications were tainted. Except for the introduction of the mug shots into the evidence, and the detective’s references to them, the in-court identification was untainted by any of the out-of-court identifications and was clearly permissible. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The in-court use of the mug shots and the references to them will be discussed later.

The remaining allegations of error relate to the improper character evidence. Part of the evidence regarding Redd’s previous bad actions was elicited from Redd on cross-examination. The prosecutor was questioning Redd about whether he worked, and if not, how he lived and supported himself. This line of questioning was quite proper. If Redd was unemployed and desperate for money, it could indicate a motive for robbery. During this questioning, Redd voluntarily stated that he had served three years for receiving stolen property. This situation is distinguishable from Swanger v. Commonwealth, Ky., 255 S.W.2d 38 (1953), which held that the accused does not waive his right to object to the procurement of inadmissible evidence on cross-examination. In Swanger, the prosecutor specifically asked if the defendant had been indicted for certain other offenses. Here, the prosecutor did not ask about other crimes,' but, without objection, Redd volunteered the information.

The prosecutor referred to Redd’s lack of work and time in prison during his closing remarks. Standing alone, this does not constitute reversible error. Comments regarding Redd’s lack of work and time in prison were taken from the evidence. The other comments complained about and objected to by Redd during closing argument were properly overruled and left to the conclusions of the jurors. As the United States Supreme Court so aptly wrote in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974):

Isolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury sitting through lengthy exhortation will draw that meaning from the plethora of less damaging interpretations. Id., at 646, 94 S.Ct. at 1873.

The error we find so unnecessary, inexcusable, unfair, and reversible relates to the introduction of improper character evidence through the use of mug shots and the references to them at trial. Generally, only where a defendant puts his good character in issue can the Commonwealth introduce evidence of a defendant’s bad character. Lawson’s Kentucky Evidence Law Handbook, § 2.10 (1976). See also Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), and Marshall v. Commonwealth, Ky., 482 S.W.2d 765 (1972). None of this evidence can be justified under any exception to the rule. Exceptions are allowed for purposes of impeachment, or to show intent, motive, and guilty knowledge, or to show the involvement of a plan or scheme. Pankey v. Commonwealth, Ky., 485 S.W.2d 513 (1972), and United States ex rel. Bleimehl v. Cannon, 525 F.2d 414 (7th Cir., 1975).

We do not conclude that mug shots cannot be used in identification procedures, or even in court on some occasions, Bleimehl, id.; but when they are used, the implication is quite clear that the accused has previously been in the hands of the law. Mug shots are so familiar as to create a natural inference that the one photographed has a criminal record. Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (D.C.Cir., 1966). The introduction of mug shots into evidence has likewise been condemned by our Kentucky Court. Roberts v. Commonwealth, Ky., 350 S.W.2d 626 (1961).

The detective did not testify that Redd had been convicted of a prior crime, but he did testify that the pictures were mug shots taken from past incidents and that the pictures had been assembled for the investigation of another armed robbery. Such testimony goes beyond the creation of a mere inference. Furthermore, the fact that an innuendo relates only to a charge rather than to a conviction is irrelevant. Saltkill v. Commonwealth, 311 Ky. 296, 223 S.W.2d 1004 (1949).

A deliberate injection of a wholly irrelevant charge was held to be prejudicial error and reversible in United States v. Blanton, 520 F.2d 907 (6th Cir., 1975). In Blanton, id., a police officer commented that Blanton was being investigated for an irrelevant robbery at the time the current offense was discovered and charged. The prosecution argued that the evidence of guilt was overwhelming and that the jury was already aware of the conviction for the robbery from other evidence. Both of these arguments failed. Blanton is similar to this case in that the evidence of guilt was strong, and there was other evidence of prior bad acts from Redd’s own testimony.

In Bleimehl, supra, the opinion reads at 420:

On balance, it must be admitted that the majority of courts tend to find prejudicial error in those situations where the mugshots themselves have actually been admitted into evidence. Most cases holding the other way involve situations which fall short of actual admission of the photos and only concern themselves with testimony referring to their existence.

Bleimehl was a habeas corpus proceeding reviewing the action of an Illinois court in allowing the admission into evidence of a book containing over 100 similar photographs. The defense was completely based on discrediting the victim’s identification, and the evidence was allowed to show that not only was the defendant’s picture identified from such a selection, but also the party identified was the one driving a vehicle leaving the scene of the crime, which vehicle was registered in the name of the one identified. Furthermore, as a habeas proceeding, the court was not so concerned with the state’s rules of evidence, but with whether the defendant was provided a fair trial as guaranteed by the United States Constitution. The basic question was whether the resulting prejudice created by the admission of the mug book greatly outweighed its probative value to the jury. In Bleimehl, it did not, because it disposed of the identification issue and, with it, the case.

In the case at bar, it appears that the admission of Redd’s mug shot added little probative value, but it did provide substantial and unnecessary prejudice. Most cases wrestling with this issue are direct appeals, but it is likely that Redd’s conviction would be reversed in a habeas proceeding. .

United States v. Harrington, 490 F.2d 487 (2d Cir., 1973), was a direct appeal wherein a conviction in a U.S. District Court was reversed because of the use of mug shots during the trial. Three standards were established to test the propriety of using mug shots. They are: (1) the prosecution must have a demonstrable need to introduce the photographs; (2) the photos themselves, if shown to the jury, must not imply that the defendant had a criminal record; and (3) the manner of their introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.

In Harrington, supra, a definite need for the photos existed, but the conviction was nevertheless reversed due to a failure to meet standards (2) and (3). The use of the mug shots at Redd’s trial fails all three of the tests.

The Harrington opinion also suggested a method for preparing mug shots for use as evidence, when a need exists. It provides:

[T]he preferable course of action when mug-shots are to be introduced would be to produce photographic duplicates of the mug-shots. These copies would lack any incriminating indicia — i. e., inscriptions or identification numbers, and they would also avoid use of the juxtaposed full face and profile photographic display . 490 F.2d at 495.

Before any retrial of Redd, the prosecution would be well advised to consider the tests and standards established in Harrington, supra, and if photographs are deemed necessary for prosecuting the case, careful consideration should be given to the manner of introduction, the testimony regarding the photographs, and the preparation of the photographs for use, according to the suggestion just quoted.

Finally, the Commonwealth argues that objections were not made as to the prior criminal act aspect from the use of the photographs. The record indicates, however, that defense counsel made several general objections and specifically moved for a mistrial at the time the questions were asked and the evidence was presented. Perhaps more objections would have been fruitless and damaging in the minds of the jurors. We also observe that the defense counsel expressed an objection to the photographic evidence at a pretrial suppression hearing. Specific grounds must be given for an objection when requested by the trial court. RCr 9.22. In this case, no request was made, and a more specific objection was unnecessary.

For the foregoing reasons, the conviction of Redd is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

HOWARD, J., concurs.

WINTERSHEIMER, J., dissents.


author: HAYES, Chief Judge.

text:
    NICK’S AUTO SALES, INC., Appellant, v. RADCLIFF AUTO SALES, INC., C. M. Davis d/b/a Toppers Used Cars, Jay Kidder d/b/a G & G Sales, Appellees.
    Court of Appeals of Kentucky.
    Dec. 14, 1979.
    Donald E. Skeeters, Skeeters & Bennett, Radcliff, for appellant.
    George K. Harris, Radcliff, Ronald E. Meredith, Kelley & Meredith, D. Michael Coyle, Elizabethtown, for appellees.
    Before HAYES, C. J., and LESTER and WINTERSHEIMER; JJ.
   HAYES, Chief Judge.

This is an appeal from a judgment of the Hardin Circuit Court wherein appellant’s demand for attorney’s fees in an action based on KRS 355.2-715 was denied. The sole issue on this appeal is whether attorney’s fees constitute a buyer’s incidental or consequential damage recoverable under KRS 355.2-715.

The appellant, Nick’s Auto Sales, Inc., on or about May 15, 1978, purchased from the appellee, Radcliff Auto Sales, Inc., a 1974 Oldsmobile Cutlass automobile for a consideration of $2,200.00. Radcliff had acquired the car from the third-party defendants, C. M. Davis d/b/a Toppers Used Cars and Jay Kidder, d/b/a G & G Sales, for a consideration of $1,200.00. When appellant sold the automobile to its customer at its place of business in Clarksville, Indiana, a standard vehicle identification check through the Indiana police revealed that the automobile was a stolen car from Illinois. The. Indiana police recovered the automobile and appellant was required to pay Allstate Insurance Company, the insurer of the true owner, $2,252.00 and to pay a $48.00 storage bill in order to obtain good title to the automobile.

Appellant brought a civil action in Hardin Circuit Court against the appellee, Rad-cliff Auto Sales, Inc., based on Radcliff’s breach of its implied warranty of title found in KRS 355.2-312(l)(a). Appellant sought the recovery of $2,300.00 (j'.e. the cost of cover), attorney’s fees, other costs, and any and all relief to which he may have appeared entitled. The appellee, Radcliff Auto Sales, Inc., filed a third-party complaint against the appellees, C. M. Davis d/b/a Toppers Used Cars and Jay Kidder d/b/a G & G Sales.

At the trial, the parties agreed to a judgment for appellant in the amount of $2,300.00. Appellant asserted that he was entitled to attorney’s fees in addition to the $2,300.00 judgment and cited the court to Mattingly-Rapier Chevrolet Company v. Singleton, Ky., 25 Ky.L.Summ. 14 (Decided by the Kentucky Court of Appeals on October 13, 1978. This opinion was modified on July 20, 1979.) The court denied appellant’s claim for attorney’s fees, and that denial is the basis of this appeal.

In examining the issue, we first note that in cases which are not Uniform Commercial Code cases, the rule in Kentucky is well established that “[i]n the absence of statute or contract expressly providing therefor, attorney’s fees are not allowable as costs . . . nor recoverable as an item of damages.” Dulworth & Burress Tobacco Warehouse Co. v. Burress, Ky., 369 S.W.2d 129, 133 (1963). See also, Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974); Powell v. City of Campbellsburg, Ky., 563 S.W.2d 488 (1978). Kentucky is in harmony with the main of United States jurisdictions in this regard as is shown by this passage from a United States Supreme Court case wherein it is said: “The rule here has long been that attorney’s fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.” Fleischmann Distilling Corporation v. Maier Brewing Company, 386 U.S. 714, 717, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967).

The next question is whether it was the intention of the legislature to vary the rule that attorney’s fees are not recoverable for those cases arising under the Uniform Commercial Code. The answer to this question appears to be no.

There are no cases directly on point which have been decided by Kentucky courts, but there has been a case which arose in Kentucky which was decided by the federal court, using what it perceived to be Kentucky law. This case arose under the Uniform Commercial Code, Article II, and involved a contract to purchase a thoroughbred mare. Plaintiff sued for the purchase price and defendant counterclaimed to rescind the contract, alleging a breach of warranty, in that there had been a material misrepresentation of the mare’s “produce record” (/. e., breeding history). The court disallowed the attorney’s fees, saying “the defendants are not entitled to attorneys’ fees since they are not to be granted in the absence of a statute authorizing them.” The court cited Holsclaw, supra, and Dulworth, supra, in support of this statement, The court said further, “no Kentucky or federal statute authorizing such fees in this type of case was cited by the parties, so the court concludes there are none.” Keck v. Wacker, 413 F.Supp. 1377, 1384 (E.D.Ky.1976).

Since there is no Kentucky case directly on point, we next examine how other jurisdictions have answered the question. We find that the overwhelming weight of authority is that attorney’s fees are not recoverable under Uniform Commercial Code 2-715. See Universal C.I.T. Credit Corp. v. State Farm Mutual Auto Insurance Co., Mo.App., 493 S.W.2d 385 (1973); Modine Manufacturing Co. v. North East Independent School District, 14 U.C.C.Rptr. 317, 503 S.W.2d 833 (Tex.Civ.App.1974); Empire Realty Co. v. Fleisher, 269 Md. 278, 305 A.2d 144 (1973); Certain-Teed Products Corp. v. Goslee Roofing and Sheetmetal, Inc., 26 Md.App. 452, 339 A.2d 302 (1975); Equitable Lumber Corp. v. IPA Land Development Corp., 18 U.C.C.Rptr. 273, 38 N.Y.2d 516, 381 N.Y.S.2d 459, 344 N.E.2d 391 (1976); Hardwick v. Dravo Equipment Co., 22 U.C.C.Rptr. 968, 279 Or. 619, 569 P.2d 588 (1977) and Murray v. Holiday Rambler, Inc., 24 U.C.C.Rptr. 52, 83 Wis.2d 406, 265 N.W.2d 513 (1978).

In addition to the case authority, White and Summers, a leading authority on the Uniform Commercial Code, have suggested that “[t]he recovery of legal fees is probably available in rare circumstances only.” J. White and R. Summers, Handbook of the Law under the Uniform Commercial Code at 302 n.57 (1972).

The situations where attorney’s fees may be recovered appear to fall into three categories:

(1) Pursuant to statute, Hardesty v. Andro Corp.—Webster Div., 555 P.2d 1030, 20 U.C.C.Rptr. 352 (Okl.1976); Morris v. Chevrolet Motor Division of General Motors, 39 Cal.App.3d 917, 114 Cal.Rptr. 747 (1974). (In this case, buyer recovered attorney’s fees from seller pursuant to statute. Then manufacturer had to indemnify seller.)

(2) Pursuant to a contract of the parties, Equitable Lumber Corp. v. IPA Land Development Corp., supra; but see Mammoth Cave Production Credit Assoc. v. Geralds, Ky.App., 551 S.W.2d 5 (1977).

(3) Attorney’s fees incurred in third-party litigation, Universal C.I.T. Credit Corp. v. State Farm Mutual Auto Insurance Co., supra; Safeway Stores, Inc. v. L.D. Schreiber Cheese Co., 326 F.Supp. 504 (W.D.Mo.1971). (Wholesaler was allowed to recover from manufacturer attorney’s fees that it incurred in defending a claim by retailer, based on contaminated cheese that it had bought from manufacturer and then sold to retailer.)

Appellant’s reliance on Mattingly-Rapier Chevrolet Co. v. Singleton, Ky., 25 Ky. L.Summ. 14 (Decided October 13, 1978, by the Kentucky Court of Appeals and modified July 20, 1979), is misplaced for the reason that the award to plaintiff of attorney’s fees in that case was overturned for the reason that there was no breach of title by defendant. Only the issue of title was decided. The Court of Appeals never reached the issue of whether the award of attorney’s fees would have been proper had a breach of title occurred.

Appellant’s reliance on KRS 453.050 is similarly misplaced. That statute is limited by KRS 453.060, which says that appellant’s attorney fees in a legal action in circuit court are limited to $2.50.

Although KRS 355.1-106(1) provides “[t]he remedies provided by this chapter shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed . . .,” that section is tempered by the effect of KRS 355.1 — 103 which reads:

Unless displaced by the particular provisions of this chapter, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.

Thus, it appears that KRS 355.2-715 was not intended to displace the common law of Kentucky regarding the awarding of attorney’s fees.

The judgment of the trial court is affirmed.

All concur.


author: GANT, Judge.

text:
    Jackie GLASS, Appellant, v. HOLLOWAY CONSTRUCTION COMPANY and Kentucky Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Dec. 14, 1979.
    As Modified Jan. 11, 1980.
    Craig W. Housman, Williams, Housman & Sparks, Paducah, for appellant.
    Jonathan Freed, Boehl, Stopher, Graves & Deindoerfer, Paducah, for appellees.
    Before GANT, HOWERTON and REYNOLDS, JJ.
   GANT, Judge.

This is a workmen’s compensation appeal from the Pike Circuit Court which affirmed the decision of the Workmen’s Compensation Board. The Board made an award to the claimant of disability for 62.4 weeks pursuant to KRS 342.730(l)(c)(22) which represents a 20% loss of use to the hand.

Appellant contends on appeal that it was error for the Board and the circuit court to limit the recovery to the schedule of benefits. It is his position that KRS 342.-730(l)(c)(27) applies as interpreted by Blair v. General Electric Co., Ky., 565 S.W.2d 631 (1978).

Claimant sustained his injury on March 8, 1975, in Pike County while operating a bulldozer. At the time he was clearing a bench (a level area terraced one above the other) when a tree was knocked over by another dozer on a bench above him. The tree fell onto his dozer and crushed his hand against the left steering clutch. He also sustained a minor injury to his knee. He was taken to Mountain Regional Hospital in Williamson, Kentucky, where he was hospitalized and underwent surgery for the repair of a comminuted fracture of the distal portion of the second metacarpal. The fracture area is in the palm of the hand. A commi-nution means that multiple fragments of the bone result from a crushing-type injury. He remained in the hospital for approximately ten days. Before leaving the hospital, a short-arm plaster cast was applied to his arm. Subsequent to this release he returned to Princeton, Kentucky, and began seeing Dr. George S. Beard in Paducah. Approximately one month after the accident, the plaster cast was removed and a metal splint was applied. Claimant continued to see Dr. Beard until June 23, 1976. Dr. Beard released the claimant to return to work in August of 1975, and claimant did so.

Claimant obtains jobs through a union hiring hall. He has worked semi-regularly in various jobs since being released by his doctor; however, it is not clearly established whether this is because of the injury or whether it is the normal state of affairs in his type of employment. At all of these employments he has earned wages in excess of what he was earning at the time of his injury. This appears to be the result of a union contract increase. He further testified that there are some jobs available through the union hall that he is no longer able to accept because, with the decrease in gripping power in his left hand, he cannot perform satisfactorily.

Two physicians testified in this action— Dr. Beard, the treating physician, and Dr. Jon Love, an orthopedic surgeon who examined claimant at the request of the appel-lee/employer. Dr. Beard testified concerning his course of treatment to the last time he saw the claimant. At that time,

[h]e [claimant] was still having discomfort in the hand, consisting of tingling, burning discomfort which was particularly severe with exposure to cold and with excessive use of the hand. (Deposition of Dr. Beard).

he diagnosed this problem as,

what we would consider causalgia which is part of sympathetic distrophy, that is, with a peripheral or extremity injury, particularly crushing injuries, you may get this problem and that is an over-reaction or reflex action of the sympathetic or autonomic nervous system and it causes a ■ burning, tingling discomfort along with impairment of circulation in which there is an unusual coldness and excessive sweating. (Deposition of Dr. Beard).

He went further to testify that he advised claimant to always wear extremely warm gloves and, if at all possible, to avoid excessive use of the left hand. Although claimant is right-handed, Dr. Beard testified that claimant suffered 20% disability to the hand which translated to 89^10% to the body as a whole.

Dr. Love, who examined the claimant on one occasion, was of the opinion that the injury resulted in a 15% functional impairment to the hand, which was the equivalent of a 7% functional impairment to the body as a whole. However, when asked directly, he also stated that claimant could operate a bulldozer. He considered the disability to be permanent but that it should remain essentially the same.

The Board, in its findings, determined that claimant had in fact suffered a work-related injury which resulted in a partial loss of use of the hand. Using the schedule of benefits table, they determined that, after a period of temporary total benefits, his injury equated with 62.4 weeks of disability. The Pike Circuit Court concurred in this result. •

We are called upon to determine whether this determination was error for failure to follow the guidelines set forth in Blair, supra.

In Blair, claimant sustained a total loss of vision in one eye. The Board made its award pursuant to KRS 342.730(1)(c)(16). Chief Justice Palmore gave a complete history of the turbulent life of the schedule benefits statute and judicial interpretations of it. The dissenting opinion in Holt v. West Kentucky Coal Co., Ky., 350 S.W.2d 155 (1961), said that the schedule was merely a “minimum allowance” for the loss of a member, which the Chief Justice in Blair called prophetic. In determining the proper method to reconcile the schedule with the enlarging statute, KRS 342.730(l)(c)(27), he concluded:

It is our conclusion that Blair is entitled to have his degree of occupational disability fixed by the Workmen’s Compensation Board and if the benefits allowable on the basis of that disability exceed those that would be payable in accordance with an award under KRS 342-730(l)(c)(16) to be compensated accordingly. Blair, supra at 634.

The appellee would have us believe that Blair is distinguishable because there is no doubt claimant in that case suffered greater occupational disábility than he would receive under the schedule but that claimant in the instant action suffered an injury only to his hand. However, we are of the opinion that the import of Blair reaches beyond its fact situation. This is pointed out by the additional comments on the subject in the recent decision of Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277 (1978). There, while discussing lost wages and pointing up its use as one evidentiary factor in determining occupational disability and that KRS 342.730(1)(c)(27) and KRS 342.-730(1)(b) are complementary provisions, Justice Reed set forth a more specific test for a Blair situation which was stated as follows:

The procedure in permanent partial disability cases is to first determine the degree of disability as shown by the evidence presented, including wage loss. This figure is used in the computation scheme in subsection (l)(b) to arrive at the amount due the employee. If the scheduled loss table is applicable, the amount due under that section is determined. This figure is compared with the figure arrived at by use of the (l)(b) computation formula. The employee is entitled to the greater award of these two. Finn, supra at 284.

We think that this passage in Finn and the decision in Blair indicate a very clear procedure to be used any time a partial disability exists and when the schedule benefits could likewise be used. First, as in all workmen’s compensation cases, the Board must make a determination as to the existence of any occupational disability. Once this is determined, the benefits as calculable under KRS 342.730(l)(b) are ascertained. This monetary figure is then compared with the compensation due under the schedule and the greater of the two is applied. Due to the open-ended awards, generally the determination by the Board that an occupational disability exists will mean that the claimant will recover under KRS 342.730(l)(b). However, this is not to say that the schedule of benefits is now defunct. In a permanent partial disability case, it must first be determined whether an injury of appreciable proportion exists and also whether there is some impairment of earning capacity. Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968). We foresee instances where a claimant will suffer an injury to a bodily member which will result in no occupational disability but will entitle the individual to recovery based on the schedule.

In the case before the Court, the Board made no determination as to the existence of an occupational disability. Therefore, the first step in the procedure as set forth by the Supreme Court has not been followed. This Court is vested with a limited reviewing power under KRS 342.285 and 342.290. We cannot and will not direct the Workmen’s Compensation Board what to find in a particular case, but in this case they must make a finding concerning the existence or nonexistence of occupational disability. Until that time we are not in a position to determine anything further.

For the above-stated reasons, this case is reversed and remanded to the Pike Circuit Court with directions to remand the action to the Workmen’s Compensation Board for further findings in conformity with this opinion.

All concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald Lamar BALL, Defendant-Appellant.
    No. 41011.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Robert C. Babione, Public Defender, J. Lawrence Clark, Asst. Public Defender, Leonard W. Buckley, Jr., St. Louis, for defendant-appellant.
    George A. Peach, Circuit Atty., Douglas A. Forsyth, Asst. Circuit Atty., St. Louis, John Ashcroft, Atty. Gen., Richard F. En-gel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   CLEMENS, Senior Judge.

On a charge of armed robbery, a jury found defendant guilty and fixed his punishment at five years in prison. He has appealed the ensuing judgment, raising only two procedural points.

First, defendant contends the court erroneously disqualified a prospective juror who declared she thought the offense would not warrant the minimum five-year sentence. This was a discretionary ruling and we find no clear abuse. Compare State v. Perkins, 568 S.W.2d 588[2] (Mo.App.1978).

By his second point defendant claims plain error during closing argument. Four witnesses had described defendant’s physical appearance at the robbery and when arrested later, including the fact he had a gold tooth. At trial defendant did not show his teeth. In closing argument the prosecutor referred to the gold tooth testimony and said: “This has been a pretty tight-lipped trial for Mr. Ball because we haven’t had much chance to see the gold tooth.”

This challenged “tight-lipped” comment can be interpreted, as the state now contends, as a literal description of defendant’s failure to expose his teeth during trial. Or, it might be interpreted, as appellate counsel now contends, as a figurative reference to defendant’s failure to testify. Apparently trial counsel did not so consider the remark because he neither objected at trial nor raised the point in defendant’s after-trial motion.

Appellate relief for plain error is discretionary under Rule 27.20(c). It is limited to cases where there is a strong, clear showing of manifest injustice and where there is not, as here, overwhelming evidence of guilt. State v. Meiers, 412 S.W.2d 478[1] (Mo.1967); State v. Hurtt, 509 S.W.2d 14[2, 3] (Mo.1974). We find no such plain error.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


author: GUNN, Presiding Judge.

text:
    Wayne O. HOPKINS, Plaintiff-Respondent, v. Junita A. HOPKINS, Defendant-Appellant.
    No. 40114.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.

      Sleater & Sleater, W. W. Sleater, M. C. Sleater, Clayton, for defendant-appellant.
    Ruppert & Westhus, Francis L. Ruppert, Clayton, for plaintiff-respondent.
   GUNN, Presiding Judge.

This ease involves consolidated appeals from two orders entered in successive divorce modification proceedings. The matrimonial ligatures were riven in 1969, the respondent-husband being ordered to pay $400 per month maintenance to the appellant-wife. The division of property was accomplished by means of a stipulation agreement filed at the time of the divorce. Subsequently, the husband experienced an extended period of unemployment while the wife’s health deteriorated considerably, and both parties filed motions to modify the original decree in their respective favor. After hearing on the first set of cross-motions, the trial court entered an order on November 28, 1977, refusing to modify the maintenance award altogether. The court also made permanent an earlier temporary restraining order prohibiting the wife from circulating copies of certain discovery documents filed with the court to which she had added certain handwritten annotations reflecting adversely on the husband. She was also awarded attorney’s fees in the sum of $1,500 out of a total claim of over $7,600. The wife appealed from this order.

Subsequently, the husband also experienced certain serious health difficulties and maintains that he has become totally and permanently disabled. He filed another motion to modify, to which the wife responded with a motion of her own. By its order following hearing on both motions, the court reduced the husband’s maintenance payment obligation from $400 to $350 per month, refusing the relief sought by the wife, and she again appealed. On motion to this court, the appeals were consolidated. For the reasons set out below, we affirm.

In her first point attacking the original modification order, the wife maintains the court erred in making permanent its temporary order restraining her from distributing to any persons copies of the husband’s answers to interrogatories filed with the court and on which she had handwritten certain comments of her own. The substance of her editorializing was to suggest that some of the assets and expenses identified in the husband’s answers were in reality related to, inter alia, a mistress, a bookie and misuse of his employer’s funds. A copy of these answers, complete with wife’s emendations, was sent to the husband with the comment that there would be a wholesale distribution of them. It was also suggested that the husband contact the wife to be spared further embarrassment.

The wife contends the trial court imper-missibly abridged her first amendment rights in restraining her from distributing the husband’s answers to interrogatories. Although she correctly points out that, in general, “injunction . . . will not lie to restrain the threatened publication of either a libel or a slander,” citing Wolf v. Harris, 267 Mo. 405, 184 S.W. 1139, 1141 (1916), the wife misperceives the actual issue involved. This precise question was addressed in Parker v. Columbia Broadcasting System, Inc., 320 F.2d 937 (2nd Cir. 1963), where the plaintiff in a shareholders suit to set aside the results of a stockholders meeting had been enjoined by a lower court from “in any way publishing, disseminating, publicizing or otherwise promulgating” a certain unsworn memorandum filed by plaintiff alleging fraud and misconduct by some defendants. The plaintiff had also been enjoined from communicating with other persons with respect to “any of the matters contained” in that document. Although it struck the latter provision of the injunction as repugnant to the first amendment, the court upheld the former on the basis of the “inherent ‘equitable powers of courts of law over their own process to prevent abuses, oppression, and injustice’,” id. at 938. The instant case involves no attempt to prevent wife from communicating whatever accusations she cares to make in any way or by any media other than that involving the court’s own process. We accept as a proper statement of law the pronouncement in International Products Corp. v. Koons, 325 F.2d 403 (2nd Cir. 1963), that “we entertain no doubt as to the constitutionality of a rule allowing a court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court's processes,” id. at 407. The trial court had the right to restrain the wife from the commission of an affront to its dignity and integrity through misuse of its process in attempting to exact a favorable settlement of pending litigation.

In her second point addressed to the original modification order, the wife insists that the trial court erred in failing to order an increase in alimony as requested. Original determinations as to reasonable need and support levels in dissolution proceedings are, of course, res judicata, thereby requiring a modification movant to carry the burden of showing a continuing and substantial change in circumstances of the parties since the dissolution if he or she is to prevail. § 452.370, RSMo 1978; Ziebell v. McClure, 578 S.W.2d 66 (Mo.App.1979). It should be manifest that in order to establish the fact of the requisite change in circumstances a party seeking a modification must somehow inform the court of the circumstances obtained at the time of dissolution. The concept of “change” necessarily entails a departure from a known prior state or condition. In the instant case, the record before us is virtually devoid of any indication of the respective resources and needs of the parties at the time of the dissolution. The only meaningful information to be gleaned from the financial minutiae adduced throughout the record is that the husband earned from his employment at the time of the hearing about $100 per month more than he made at the time of the dissolution; that he had an extensive period of unemployment in the interim; that he was originally ordered to pay wife $400 per month alimony; that she was gainfully employed until shortly before the modification hearing; and that she had experienced a great deal of health-related difficulties (albeit that by no means established that she was unemployable as a result of those difficulties). Both parties submitted financial and income/expense statements current at the time of the hearing, providing a basis for determining current levels of need and resources for each party. The wife’s resources and needs and the husband’s reasonable needs at the time of the divorce remain obscure. The $400 monthly maintenance figure provides no assistance, as that may represent an accommodation between a reasonable level of need of the wife and a lesser ability of the husband to pay as well as reflect a determination as to the culpability of one of the parties in causing the demise of the marriage. It is clear that something more than an increase in the income of the husband must ordinarily be shown to justify a dissolution decree modification. Plattner v. Plattner, 567 S.W.2d 139 (Mo.App.1978). In the absence of additional evidence of net changes in resources or needs of the wife, the trial court was not in error in refusing to alter the decree, and we decline to disturb its determination accordingly.

In her final point attacking the first modification order, the wife insists the trial court abused its discretion in allowing only $1,500 in attorney’s fees for representation in the modification proceedings, asserting that the court should have allowed fees for representation in execution and temporary restraining order proceedings, totalling in the aggregate $7,698. At the hearing, the wife’s counsel testified to having spent 128.3 hours (at $60 per hour) total representing the wife in the modification proceedings and the related execution and restraining order matters.

The execution and restraining order issues were treated in the course of the modification proceedings. There is nothing in the record to indicate that the trial court excluded representation on those issues in its computation and award of fees for the “motions to modify”. Regarding its computation and award of $1,500 in total fees, we note that appellate courts will not interfere with awards of attorney’s fees in dissolution proceedings absent a clear showing of abuse. In re Marriage of Frankel, 550 S.W.2d 896 (Mo.App.1977). In computing fee awards, trial courts are not bound by counsel’s testimony as to the value of services rendered, and, being themselves experts on the issue of attorney’s fees, courts need have no evidence adduced on the subject to enable them to fix an award in the first instance. LoPiccolo v. LoPiccolo, 581 S.W.2d 421 (Mo.App.1979). After reviewing the record of the proceedings below and in light of § 452.355, RSMo 1978, directing the court to consider “all relevant factors” in fixing awards of attorney’s fees, we find no abuse of discretion in the $1,500 award ordered.

We now address the points raised in the appeal from the second modification order. The wife argues that the trial court erred in both ordering a reduction in alimony and in failing to order the increase as requested by her. Our finding that the reduction in maintenance is fully supported by substantial evidence is dispositive of both points.

The period of time to which we refer for the necessary changes in circumstances to support the modification in maintenance dates from the prior order refusing modification, dated November 28, 1977. Consideration of evidence predating that order- is precluded. Farnsworth v. Farnsworth, 553 S.W.2d 485 (Mo.App.1977). It terminated with the hearing on the motions to modify now in question which was held July 18, 1978. A thorough recapitulation of all the evidence presented by the parties would be tedious, of no real edification or precedential value. It is sufficient to note that from the' evidence adduced the trial court could have found that during the period in question the wife remained unemployed but was capable of some form of non-demanding employment; that the husband became totally unemployed and was diagnosed as suffering from a heart condition and other health difficulties rendering him permanently disabled; and that both parties were possessed of assets both real and personal, with the wife’s assets having increased slightly in value during the period. This was sufficient to carry the husband’s burden of demonstrating a substantial and continuing change in circumstances under § 452.370, and Seelig v. Seelig, 540 S.W.2d 142 (Mo.App.1976), thereby supporting the reduction in maintenance from $400 to $350 per month. This conclusion necessarily forecloses any consideration of the wife’s claim of error in failing to order an increase in maintenance.

Finally, the wife raises the question of trial court error in failing to order specific performance by the husband of certain provisions of the stipulation agreement entered into by the parties at the time of their divorce touching insurance policies the husband was to maintain for the wife’s benefit. The original divorce decree acknowledges the fact that the stipulation was filed with the trial court but does not incorporate the agreement into the decree nor order the performance of its provisions.

The husband contends that under Vorhof v. Vorhof, 532 S.W.2d 830 (Mo.App.1975), a stipulation as to maintenance and. property rights not forming a part of the “divorce” decree is a matter of private agreement enforceable only by separate suit on a contract. And, indeed, that contention is correct for a divorce prior to the Dissolution of Marriage Act, Laws of 1973, p. 470, § 452.-300, et seq., RSMo 1978, effective January 1, 1974. Haggard v. Haggard, 585 S.W.2d 480 (Mo. banc 1979); North v. North 339 Mo. 1226, 100 S.W.2d 582 (Mo.1936); Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974). For dissolutions of marriage occurring after the effective date of the Dissolution of Marriage Act, the terms of separate maintenance agreements, unless unconscionable, are decretal to be incorporated within the decree, unless the agreement expressly provides otherwise. Haggard v. Haggard, supra. The property settlement stipulation in this case was executed November 4, 1969. The divorce decree, without incorporation or reference to the stipulation other than to note it was filed, was entered November 5, 1969. Hence, the provisions of the stipulation, including those regarding insurance premiums, were contractual, not decretal. Whitworth v. Whitworth, 559 S.W.2d 292 (Mo.App.1977). They are enforceable by separate contract action not ancillary to the divorce proceeding and not enforceable as a judgment under § 452.325.5, RSMo 1978. Nelson v. Nelson, supra.

The judgment of the trial court concerning the modification orders of November 11, 1977 and August 10, 1978 is affirmed.

STEPHAN and PUDLOWSKI, JJ., concur.

      . The parties have been subject to several different appellations as these proceedings have progressed through the various stages below, and for simplicity, will be referred to here in their original roles as husband and wife.

      . The divorce was granted and stipulation executed under the provisions of § 452.010, et seq. RSMo 1969.